Filing a Concubinage or Adultery Case Against a Spouse in the Philippines
(A practitioner-oriented guide anchored on the Revised Penal Code, Rules of Criminal Procedure, and prevailing jurisprudence; updated to 23 June 2025)
1. Two separate crimes, two different accused
| Crime | Applicable when the married… | Statutory basis | Who are accused & their penalties* |
|---|---|---|---|
| Adultery (Art. 333, RPC) | woman has sexual intercourse with a man not her husband | Act is a private crime Each act of sexual intercourse = one count |
• Married woman: prisión correccional (2 yr-4 mo 1 day to 6 yrs) in medium & maximum periods • Paramour: same penalty • Fine: none (but Art. 336 civil indemnity applies) • Both must be included in the complaint (Art. 344) |
| Concubinage (Art. 334, RPC) | man keeps a concubine by: 1. Cohabiting with her in the conjugal dwelling, or 2. Cohabiting elsewhere under scandalous circumstances, or 3. Having sexual intercourse with her under scandalous circumstances |
A private crime Continuous offense (one count unless different concubines) |
• Married man (husband): prisión correccional in minimum & medium periods (6 mo 1 day to 4 yrs 2 mo) • Concubine: destierro (banishment 25–250 km for same duration) • Fine: none (Art. 10951 did not add one) |
*RA 10951 (2017) only adjusted monetary fines; it did not alter imprisonment ranges for these articles.
2. Standing to file: a “private crime”
Only the offended spouse (the legal husband in adultery, or the legal wife in concubinage) can commence the action (Art. 344, RPC).
Representation: If the offended spouse is a minor, insane, or otherwise incapacitated, parents, grandparents, or legal guardian may file.
Mandatory joinder: The complaint must implead both guilty parties if alive and both whereabouts are known; failure to do so is fatal and the case will be dismissed.
Pardon/consent bar:
- Express pardon (in writing or clearly verbalized) or
- Implied pardon/consent (e.g., co-habitation continued in full knowledge) extinguishes criminal liability.
- Pardon given after the institution of the complaint has no effect.
3. Time limits and venue
| Requirement | Key rules |
|---|---|
| Prescriptive period | Ten (10) years from the date of commission (Art. 90) • Because adultery is a continuing series, each act prescribes separately. • For concubinage the 10-year clock usually runs from the last overt act of cohabitation or scandalous intercourse alleged. |
| Venue | Ordinary rule: place where the criminal act occurred. • Adultery: each sexual act = venue where intercourse happened (often hotel or residence). • Concubinage: usually the place of the conjugal dwelling or where the illicit cohabitation occurs. Family-court-designated RTCs have exclusive jurisdiction. |
4. Step-by-step filing workflow
1. Pre-complaint preparation • Gather evidence: marriage certificates, photos/video, hotel receipts, messaging screenshots, private-investigator logs, testimonies, bank records showing joint expenses, etc. • Ensure absence of pardon/consent (clarify in affidavit).
2. Sworn Affidavit-Complaint (Rule 110, Sec. 3) • Verified before a prosecutor or notary. • Must narrate specific dates, places, acts, and overt participation of both respondents. Attach documentary evidence and witness lists.
3. Filing with Office of the City/Provincial Prosecutor • Pay filing fee (varies by city; ~₱500-₱1 000). • Docket number is issued.
4. Preliminary Investigation (Rule 112) • Prosecutor issues subpoena; respondents submit counter-affidavits. • Clarificatory hearing optional. • Probable cause resolution issued (60-90-day statutory period).
5. Review & approval • City/Provincial Prosecutor or Regional State Prosecutor approves. • Aggrieved party may file a Petition for Review with the Department of Justice within 15 days.
6. Filing of Information in RTC (Family Court) • Judge conducts judicial determination of probable cause (Rule 112 §6). • Warrant of arrest or summons issued.
7. Arraignment & Pre-trial • Bail is a matter of right (offense afflictive ≤6 yrs). Schedules range ₱10 000-₱40 000 (local guidelines). • Civil damages may be set for trial.
8. Trial proper • Proof beyond reasonable doubt needed. • Circumstantial evidence is enough; direct eyewitness sex act is not required (People v. Villarino, G.R. 104872, 15 Mar 1993). • Each adulterous act proven ≥1 count; concubinage proven by continuous cohabitation or scandalous conduct.
9. Judgment & penalties • Custodial sentence + accessories. • Destierro enforced via Provincial Probation & Parole Services. • Civil indemnity: moral & exemplary damages allowed (Garcia v. Drilon, G.R. 179267, 25 June 2013).
10. Post-conviction relief • Appeal to Court of Appeals (Rule 124); SC review on questions of law (Rule 45). • Probation possible if penalty ≤6 yrs and applicant not previously convicted.
5. Evidence pointers
| Evidence type | Illustrative items | Practical tips |
|---|---|---|
| Documentary | Hotel folios, travel manifests, bank statements, birth certificate of alleged love child, social-media chat logs | Authenticate via testimony of custodian; obtain subpoenas duces tecum where refusals occur. |
| Testimonial | Domestic helpers, neighbors, PI, security guards, hotel staff | Prepare with lawyer; witness protection program (RA 6981) rarely invoked but available. |
| Real/physical | Photographs, video, GPS logs | Maintain chain of custody; avoid illegal wiretaps (RA 4200). |
| Judicial admissions | Respondent’s admissions in text, Viber or open court | Preserve digital forensics (hash values). |
6. Common defenses
- Lack of jurisdiction (acts committed wholly abroad).
- Nullity of marriage ab initio – no valid spousal relationship (People v. Court of Appeals, G.R. 119190, 21 Sept 1999).
- Pardon or consent by offended spouse.
- Prescription – more than 10 years from alleged act.
- Failure to implead both parties.
- Alibi / mistaken identity (especially in adultery counts).
7. Intersection with other laws
| Statute | Relevance |
|---|---|
| RA 9262 (Anti-VAWC) | Extramarital affairs may also constitute psychological violence causing mental anguish; case can be filed by wife or partner even without marriage. No double-jeopardy if elements differ (Garcia v. Drilon). |
| Civil Code, Art. 55 (3) | Same factual ground (sexual infidelity) is basis for legal separation suit in the same family court. Criminal and civil actions may proceed independently. |
| RA 6732 (Administrative adoption) & Family Code, Art. 176 | If a child is born of the affair, legitimation and support issues arise. |
| Data Privacy Act (RA 10173) | Illegally obtained digital evidence may be suppressed. |
| Proposed Penal Code overhaul / Divorce bills | As of June 2025, adultery & concubinage remain crimes; bills to decriminalize are pending in 19th Congress but not yet law. |
8. Practical litigation insights
- Gender asymmetry persists: Prison term for husband equals that of paramour in adultery, but in concubinage the concubine only suffers destierro—reflecting the 1930s origin of the law.
- Burden of proof lighter than it seems: SC has repeatedly ruled that “lust may be proven by conduct” (People v. Gorospe, G.R. 95746, 6 Feb 1991). Evening visits, locked doors, semi-nude state, or “scandalous closeness” can convict if unrefuted.
- Digital footprints are king: Facebook posts and Airbnb e-receipts often clinch probable cause; ensure screenshots show URL, time stamp, and are certified by a cybercrime examiner.
- Coordinate remedies: Filing both VAWC and adultery/concubinage can discourage plea bargaining, but may fatigue complainant; strategize which remedy achieves restraining order or support fastest.
- Expect mediation attempts: Some prosecutors use office-initiated mediation even in private crimes; participation is optional but may facilitate civil settlement.
- Check bail and travel plans: Destierro penalty may paradoxically allow the concubine to reside abroad; seek hold-departure orders where flight risk exists.
9. Frequently asked questions
- “Can I withdraw the case after filing?” – Yes, by filing a motion to withdraw complaint before information is filed, or an affidavit of desistance afterward (subject to prosecutor/judge discretion).
- “What if my spouse later marries the paramour?” – Marriage does not extinguish liability; the offense was complete before the marriage.
- “Is DNA proof of a love child enough?” – It is strong circumstantial evidence of sexual relations, but still needs proof of marriage of complainant and respondent.
- “Will conviction automatically dissolve our marriage?” – No. You must file for legal separation or nullity/annulment in a separate civil action.
- “Can I sue for damages even if criminal case fails?” – Yes, under Articles 20, 21, 26, and 33 of the Civil Code for moral damages and besmirched reputation.
10. Checklist for the offended spouse & counsel
☐ Secure marriage certificate (PSA certified) ☐ Collect prima facie evidence of the affair (digital & physical) ☐ Draft verified affidavit-complaint naming both respondents ☐ Ensure no prior pardon or collusion ☐ File with Office of the Prosecutor within 10 years of last act ☐ Prepare for preliminary investigation (document gaps, subpoena requests) ☐ Consider parallel civil/VAWC actions for support or protection orders ☐ Budget for bail (if complainant may later shoulder family bail money) ☐ Preserve mental-health records for damages proof ☐ Stay alert for possible amicable settlement versus public trial
Bottom line
Filing concubinage or adultery remains a potent—though often emotionally taxing—legal remedy for the aggrieved Filipino spouse. While the Revised Penal Code provisions date back nearly a century, they are still vigorously enforced, especially when digital evidence makes clandestine affairs harder to keep hidden. Success hinges on strict compliance with the private-crime rules (joinder, pardon, prescription) and on marshalling credible, contemporaneous evidence. Consult competent counsel early, not only to secure convictions but also to integrate criminal action with civil, VAWC, or family-law remedies that better protect long-term interests.