Introduction

In the Philippines, marital infidelity is not merely a ground for civil separation or annulment but is criminalized under the Revised Penal Code (RPC). Adultery and concubinage are distinct offenses that penalize extramarital affairs, reflecting the country's strong emphasis on family values and the sanctity of marriage. These crimes are outlined in Articles 333 and 334 of the RPC, respectively. However, when the offending spouse is abroad, filing and pursuing such cases introduce complexities related to jurisdiction, evidence gathering, international cooperation, and enforcement. This article provides a comprehensive overview of the legal framework, procedural steps, challenges, and considerations for filing concubinage or adultery cases against a spouse located outside the Philippines.

Legal Definitions and Elements of the Offenses

Adultery (Article 333, RPC)

Adultery is committed by a married woman who engages in sexual intercourse with a man who is not her husband, and by the man who has carnal knowledge of her, knowing that she is married. Key elements include:

The offender must be a married woman (the wife).
She must have sexual intercourse with a man other than her husband.
The male partner must be aware of her marital status.
Even a single act of intercourse suffices to constitute the crime.

This offense is gender-specific, applying only to wives and their paramours. The husband cannot be charged with adultery; instead, his infidelity falls under concubinage.

Concubinage (Article 334, RPC)

Concubinage targets married men and involves three alternative modes of commission:

Keeping a mistress in the conjugal dwelling.
Having sexual intercourse with a woman (not his wife) under scandalous circumstances.
Cohabiting with her in any other place.

Elements include:

The offender must be a married man (the husband).
The act must fall into one of the three categories above.
The female partner (mistress) must be aware of his marital status to be liable as a co-accused.

Unlike adultery, concubinage requires proof of ongoing or habitual behavior in some modes, making it harder to prove than adultery. A single isolated act may not qualify unless it occurs under scandalous circumstances.

Both offenses are considered crimes against chastity and are punishable by imprisonment. Penalties for adultery range from prisión correccional in its minimum and medium periods (2 years, 4 months, and 1 day to 4 years and 2 months) for the wife, and destierro (banishment) for the paramour if he is not married. For concubinage, the husband faces prisión correccional in its minimum and medium periods, while the mistress may face destierro.

Who Can File the Case?

Only the offended spouse (the husband in adultery cases or the wife in concubinage cases) can initiate the complaint. This is a key feature: these are private crimes, meaning the state cannot prosecute without the aggrieved spouse's explicit complaint. If the offended spouse pardons the offender (expressly or impliedly, such as by continuing cohabitation), the case is extinguished. Minors or incapacitated offended spouses may have a guardian or parent file on their behalf, but generally, it must be the spouse.

Importantly, third parties, including relatives or authorities, cannot file independently. This rule underscores the personal nature of these offenses.

Jurisdictional Considerations When the Spouse is Abroad

Philippine courts have jurisdiction over crimes committed within the territory (territoriality principle under Article 2 of the RPC). However, for crimes against chastity like adultery and concubinage, jurisdiction can extend if:

The act was committed in the Philippines, even if the spouse flees abroad afterward.
Part of the act occurred in the Philippines (e.g., the affair began here but continued abroad).

If the entire offense occurs abroad, Philippine courts generally lack jurisdiction unless it falls under exceptions like crimes against national security or those punishable under international law. Adultery and concubinage do not typically qualify for extraterritorial application.

However, if the spouse returns to the Philippines, they can be arrested and prosecuted for acts committed here. For acts abroad, the offended spouse might need to explore laws in the foreign jurisdiction, as many countries do not criminalize infidelity.

Procedural Steps for Filing the Case

Step 1: Gathering Evidence

Proof is crucial, as these cases require evidence beyond reasonable doubt. Common evidence includes:

Eyewitness testimonies.
Photographs, videos, or electronic messages showing intimacy or cohabitation.
Hotel records, travel documents, or financial transactions indicating support for a paramour.
Confessions or admissions.

When the spouse is abroad, evidence gathering may involve digital forensics (e.g., emails, social media) or hiring private investigators. Note that illegally obtained evidence (e.g., via hacking) may be inadmissible under the Anti-Wiretapping Law or Data Privacy Act.

Step 2: Filing the Complaint

The process begins with a complaint-affidavit filed before the Office of the City or Provincial Prosecutor (fiscal) in the place where the offense was committed or where the offended spouse resides. Requirements include:

A sworn statement detailing the facts.
Supporting evidence and witnesses.
Payment of filing fees (minimal for criminal cases).

The prosecutor conducts a preliminary investigation to determine probable cause. If found, an information is filed in court (Municipal Trial Court or Regional Trial Court, depending on the penalty).

Step 3: Issuance of Warrant and Arrest

Upon filing in court, a warrant of arrest may be issued. If the accused is abroad, the court can issue a hold-departure order (HDO) or preliminary attachment, but arrest requires international cooperation.

Step 4: Trial and Judgment

The case proceeds to arraignment, pre-trial, trial, and judgment. The accused has the right to bail, except in certain circumstances.

Challenges When the Spouse is Abroad

Service of Summons and Arrest

If the accused is overseas, serving summons or executing an arrest warrant is difficult. The Philippines can request assistance through:

Mutual Legal Assistance Treaties (MLATs): With countries like the US, Australia, or EU members, for evidence sharing.
Extradition Treaties: The Philippines has treaties with several nations (e.g., US, UK, Canada). Extradition requires dual criminality (the act must be a crime in both countries) and sufficient evidence. However, many countries do not extradite for infidelity crimes, viewing them as non-serious or non-extraditable offenses.
Interpol Red Notices: For fugitives, but rarely used for these crimes due to their private nature.

If no treaty exists, informal channels or diplomatic requests may be pursued, but success is low.

Evidence from Abroad

Obtaining foreign evidence requires letters rogatory (court-to-court requests) or MLATs. Digital evidence must comply with the Cybercrime Prevention Act and international data laws (e.g., GDPR in Europe).

Prescription Period

These offenses prescribe in 10 years from discovery (not commission). If the spouse is abroad, delays in discovery or filing can lead to prescription.

Concurrent Civil Actions

Filing a criminal case often accompanies civil actions like legal separation (under Family Code Article 55), where adultery/concubinage is a ground. Damages for moral injury can be claimed. If abroad, property in the Philippines can be attached.

Defenses and Mitigating Factors

Common defenses include:

Lack of marriage validity (e.g., bigamous marriage).
Pardon by the offended spouse.
Insufficient evidence of sexual intercourse or cohabitation.
Abroad location as alibi, if the act is alleged in the Philippines.

Mitigating circumstances might include voluntary surrender, but penalties are rarely reduced significantly.

Recent Developments and Reforms

While the RPC provisions remain unchanged, there have been calls for decriminalization, arguing gender bias (adultery vs. concubinage penalties differ). The Supreme Court has upheld these laws, but cases like Estrada v. Escritor (2003) introduced nuances on religious freedom defenses. Additionally, the Violence Against Women and Children Act (RA 9262) may intersect if infidelity involves abuse.

In the context of overseas Filipinos (OFWs), the Migrant Workers Act (RA 8042, as amended) provides support for legal aid abroad, but not specifically for these cases.

Alternatives to Criminal Prosecution

Instead of criminal charges, consider:

Annulment or nullity of marriage (Family Code).
Psychological incapacity as ground if infidelity stems from deeper issues.
Mediation through barangay or family courts.
International divorce recognition if obtained abroad (but Philippines does not recognize divorce for Filipinos).

Conclusion

Filing concubinage or adultery cases against a spouse abroad in the Philippines is a viable but challenging endeavor, rooted in the RPC's protection of marital fidelity. Success hinges on strong evidence, timely action, and navigating international legal hurdles. Offended spouses should consult a lawyer specializing in family and criminal law to assess viability, as these cases can be emotionally and financially draining. While the law provides recourse, reconciliation or civil remedies often prove more practical, especially with geographical barriers.