Filing Adultery or Concubinage Cases Against a Spouse Living with Another Partner (Philippine Context)

This article is for general information only and is not a substitute for advice from a Philippine lawyer who can assess your specific facts.

1) Two Different Crimes, Two Different Standards

Adultery (Article 333, Revised Penal Code)

Who can be charged:

A married woman who has sexual intercourse with a man not her husband; and
The man who has intercourse with her knowing she is married.

Key features:

Each act of sexual intercourse is a separate offense.
Knowledge of the woman’s marriage is an element for the male partner.
Penalty: prisión correccional (medium to maximum) for both the wife and her sexual partner.

Concubinage (Article 334, Revised Penal Code)

Who can be charged:

A husband who:
1. Keeps a mistress in the conjugal dwelling, or
2. Has sexual intercourse under scandalous circumstances, or
3. Cohabits with a woman in any other place; and
The concubine (the woman) who participates.

Key features:

The law penalizes specific forms of conduct by the husband; it is not enough to prove a single private act of intercourse unless it falls under the “scandalous circumstances” or cohabitation modes.
Penalty: prisión correccional (minimum to medium) for the husband; the concubine generally suffers destierro (banishment).

Why the asymmetry? The Penal Code (enacted in 1930) drew distinct definitions and penalties for adultery vs. concubinage. Modern reform efforts are sometimes discussed, but until Congress amends the law, these textual differences remain.

2) Private Crimes: Who May File and How

Only the offended spouse may initiate

Adultery and concubinage are “private crimes.” As a rule:

Only the offended spouse may file the criminal complaint.
The public prosecutor cannot proceed without that spouse’s complaint.

Must include both offenders

The complaint must generally be filed against both alleged offenders (e.g., wife + paramour in adultery; husband + concubine in concubinage), if both are alive and identifiable.
Failing to include the other party can be a ground to dismiss the complaint.

Pardon or consent bars prosecution

Prior consent to the act(s) or an express pardon before filing the complaint bars criminal action.
After filing, condonation/forgiveness does not automatically extinguish the criminal case (it is already with the courts).
Separate residences or later reconciliation does not retroactively supply consent.

3) Basic Elements You Must Prove

Adultery

Valid, subsisting marriage of the woman at the time of the act.
Sexual intercourse between the married woman and the male accused.
The male accused knew she was married.

Evidence commonly used:

Marriage certificate of the woman;
Admissions (messages, emails, social media, sworn statements);
Direct or circumstantial evidence of sexual intercourse (e.g., hotel records, travel together with intimate context, birth of a child, DNA in some cases).

Note: Proof “beyond reasonable doubt” is required for each specific act charged.

Concubinage

Prove one of these modes:

He kept a mistress in the conjugal dwelling (co-residence in the marital home);
He had sexual intercourse with a woman under scandalous circumstances (publicity or notoriety beyond private indiscretions); or
He cohabited with a woman in any other place (sustained living together, not isolated trysts).

Evidence commonly used:

Proof of cohabitation (leases, utility bills, neighbors’ testimony, photos showing shared residence);
Public displays or scandalous acts (witnesses, posts, news, videos);
Admissions;
Birth certificates naming the husband as father, though paternity presumptions and rules on filiation apply.

4) Venue, Jurisdiction, and Prescription

Where to file: Usually where any element of the offense occurred (e.g., place of cohabitation, location of sexual intercourse, conjugal home).
Which court: First-level trial courts (MTC/MeTC/MTCC) generally have jurisdiction because the penalties do not exceed six (6) years.
Prescription (time limits): These offenses are generally punishable by correctional penalties, which ordinarily prescribe in ten (10) years.
- Adultery: Because each act is a separate offense, the period is counted per act.
- Concubinage: Where the mode alleged is cohabitation or keeping in the conjugal home, courts may treat it as continuing—the clock can run from the last overt act or cessation.
- Computation of prescription can be fact-sensitive; get counsel to evaluate timelines precisely.

5) The Complaint-Affidavit and Prosecutor’s Review

Step-by-step overview:

Gather evidence (legal and ethically obtained). Avoid illegal recordings or privacy violations that could be inadmissible or expose you to liability.
Prepare a Complaint-Affidavit detailing facts per element, attach certified copies (e.g., PSA marriage certificate), and identify both accused.
File with the Office of the City/Provincial Prosecutor having venue over the offense.
Preliminary Investigation: The prosecutor serves the complaint; respondents file Counter-Affidavits; you may file a Reply; clarificatory hearings may be held.
Resolution: If probable cause is found, an Information is filed in court; otherwise, the complaint is dismissed (subject to motion for reconsideration or review).
Trial: Arraignment, pre-trial, trial on the merits, judgment. Proof beyond reasonable doubt is required for conviction.

Evidentiary reminders:

Best evidence rule and authenticity of electronic evidence apply. Preserve originals and metadata where possible.
Hearsay is generally inadmissible unless it falls under an exception.
Consider expert evidence (e.g., DNA for paternity issues) when strategically helpful and lawful.

6) Defenses Commonly Raised

Lack of an element: e.g., no valid subsisting marriage; no sexual intercourse; no knowledge of marriage (adultery); conduct not within Article 334 modes (concubinage).
Alibi / denial and attacks on the credibility or admissibility of evidence.
Consent/pardon by the offended spouse prior to filing.
Prescription (offense has become time-barred).
Due process issues during preliminary investigation.

7) Civil, Family, and Property Consequences (Beyond Jail Time)

a) Legal separation (Family Code)

Sexual infidelity or perversion is a ground for legal separation (not dissolution of the marriage bond).
Effects may include: dissolution of the property regime, possible forfeiture of benefits in favor of the innocent spouse, custody arrangements, and disqualification of the guilty spouse from inheriting from the innocent spouse by intestate succession; testamentary benefits in the will may be revoked.

b) Nullity/Annulment

Separate from criminal cases. Nullity (void marriages) or annulment (voidable marriages) have different grounds and standards of proof.
A decree of nullity/annulment changes property relations and successional rights but does not erase already-consummated crimes.

c) Support and protection orders

Abandonment to live with another can trigger remedies under anti-VAWC statutes if psychological, economic, or physical abuse is present. Protection Orders (TPO/PPO) may be sought for you and the children.

d) Donations and benefits between offenders

Donations between persons guilty of adultery or concubinage are generally void under the Civil Code.
Insurance and pensions may be affected by policy terms and laws on public order and good customs.

e) Damages

Depending on proof, the innocent spouse (and sometimes legitimate children) may claim moral, exemplary, and actual damages in a separate civil action or as civil liability in the criminal case.

8) Practical Strategy and Ethics Checklist

Decide on goals early: criminal accountability, family status relief (legal separation/nullity), protection for you and the children, and financial stability may require parallel but coordinated actions.
Evidence discipline:
- Keep a timeline; label and securely store files; avoid editing originals.
- Use lawful methods only—illegal surveillance can backfire.
Children first: safeguard their privacy and well-being; avoid public posts that could harm them or expose you to cyber libel or data privacy claims.
Cost-benefit: criminal cases can be long and emotionally taxing; weigh the probability of proof (e.g., for adultery’s each-act requirement, or concubinage’s stringent modes).
Security planning: if there is any risk of violence, prioritize safety planning and consider protection orders.
Tax and property: consult on property partition, support, and tax implications of asset division and damage awards.

9) Frequently Asked Practical Questions

Q1: My spouse is openly living with a new partner—should I file adultery or concubinage?

If husband is living with another woman, concubinage is the typical charge (cohabitation mode).
If wife has relations with another man, adultery applies, but you must prove specific acts of intercourse; mere cohabitation suggests opportunity but is not, by itself, a completed act in adultery.

Q2: Can I file both a criminal case and a petition for legal separation/nullity?

Yes. They are independent remedies with different standards and outcomes, but they can be coordinated.

Q3: Do I need to include the third party as a co-accused?

Yes, if that person is alive and identifiable. Otherwise, explain why inclusion is not possible.

Q4: What if I forgave my spouse before filing?

Express pardon or prior consent bars the criminal case. After filing, later forgiveness does not automatically terminate the case.

Q5: Is a child with the paramour decisive proof?

It is strong circumstantial evidence, but rules on filiation and presumptions (e.g., a child born to a married woman is presumed legitimate) can complicate proof. DNA testing may be considered, subject to court rules.

Q6: He moved out years ago—can I still file?

Assess prescription. For cohabitation, look at the last provable date of the relationship. Seek advice to compute time bars carefully.

10) Document & Evidence Prep List (Starter)

PSA Marriage Certificate (and if relevant, children’s birth certificates)
Proof of residence/cohabitation (leases, bills, neighbors’ statements)
Photos/videos, CCTV, hotel/flight records, financial records implying shared life
Electronic communications (texts, emails, chats, social media)—export originals with metadata when possible
Admissions (written or recorded lawfully)
Medical or psychological reports (for VAWC-related harm)
Timeline and log of incidents with dates, locations, witnesses

11) Filing Roadmap (One-Page Summary)

Clarify objective: criminal accountability, family case, safety, finances.
Secure counsel (criminal + family).
Collect and preserve admissible evidence.
Draft and notarize a Complaint-Affidavit (allege elements, attach proof).
File with the correct Prosecutor’s Office (proper venue).
Participate in preliminary investigation (counter-pleadings, clarificatory).
If an Information is filed: arraignment → pre-trial → trial.
In parallel, consider legal separation/nullity, support, protection orders, and asset preservation steps.
Maintain privacy and safety; avoid extrajudicial publicity that could harm the case or the children.
Plan for enforcement (e.g., warrants, judgments, civil recovery).

12) Final Notes

Because these are private crimes, your decision and timing are pivotal.
Coordinate criminal, family, and protective remedies to avoid strategic conflicts (e.g., giving implied consent).
Be meticulous with elements, venue, and inclusion of both offenders, and anticipate defenses early.
For precise application (especially on prescription, DNA/filiation, and property effects), seek tailored legal advice.