In the Philippines, marital infidelity is not merely a moral failing or grounds for legal separation; it is a criminal offense classified as a Crime Against Chastity under the Revised Penal Code (RPC). However, the law distinguishes between infidelity committed by a wife and that committed by a husband, applying different definitions, evidentiary requirements, and penalties for each.
1. Adultery (Article 333, RPC)
Adultery is committed by a married woman and by the man who has carnal knowledge of her, knowing her to be married, even if the marriage is subsequently declared void.
- The Act: A single act of sexual intercourse is sufficient to constitute adultery.
- Who is Charged: Both the wife and her paramour are typically charged together.
- The Penalty: The penalty is prision correccional in its medium and maximum periods (2 years, 4 months, and 1 day to 6 years).
- Proof Required: Physical evidence of the act is rarely available, so "circumstantial evidence" (e.g., staying in a hotel room together, intimate letters, or public admissions) is often used to establish the occurrence of the sexual act.
2. Concubinage (Article 334, RPC)
Concubinage is committed by a husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse under scandalous circumstances, or shall cohabit with her in any other place.
Unlike adultery, a single act of intercourse is not enough to convict a husband of concubinage. One of the following three specific conditions must be proven:
- Keeping a mistress in the conjugal dwelling: The husband brings the woman into the home he shares with his wife.
- Sexual intercourse under scandalous circumstances: The relationship is so public and flagrant that it offends the moral sense of the community.
- Cohabitation: The husband and his mistress live together in a "state of normalcy" as if they were husband and wife in a different residence.
- The Penalty: The husband faces a lower penalty (prision correccional in its minimum and medium periods), while the concubine is only given the penalty of destierro (banishment from a specific radius of the complainant's residence).
3. Key Legal Differences
| Feature | Adultery (Wife) | Concubinage (Husband) |
|---|---|---|
| Standard of Proof | Single act of sexual intercourse. | Cohabitation, scandal, or keeping her in the home. |
| Penalty for Spouse | Up to 6 years imprisonment. | Up to 4 years and 2 months imprisonment. |
| Penalty for Third Party | Same as the wife. | Destierro (Banishment) only. |
4. Grounds and Requirements for Filing
To initiate a criminal complaint for Adultery or Concubinage, the following procedural rules apply:
- Private Crime: These are considered private crimes. Only the offended spouse can file the complaint. It cannot be initiated by the police, parents, or neighbors.
- Mandatory Inclusion: The offended spouse must include both the guilty spouse and the third party in the complaint, provided they are both alive.
- Pardon and Consent: The case will be dismissed if it is proven that the offended spouse consented to the infidelity or has pardoned the guilty party (either expressly or by continued cohabitation after knowledge of the affair).
- Prescription Period: The crime must be reported within one year from the day the offended spouse became aware of the infidelity.
5. Infidelity as Psychological Violence (R.A. 9262)
In recent jurisprudence (notably XXX vs. People), the Supreme Court has recognized that a husband’s infidelity can constitute Psychological Violence under Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act).
- Lower Burden of Proof: Unlike the strict requirements of Concubinage under the RPC, the prosecution only needs to prove that the husband's extra-marital affair caused "emotional or mental anguish" to the wife.
- Higher Penalties: R.A. 9262 carries heavier penalties and offers Protection Orders (BPO, TPO, PPO) to immediately remove the husband from the residence or prevent further contact.
6. Civil Consequences
Beyond criminal prosecution, infidelity serves as a ground for:
- Legal Separation: Allows the couple to live apart and dissolve the property regime, though they cannot remarry.
- Disqualification of Inheritance: The guilty spouse may be disqualified from inheriting from the innocent spouse by intestate succession.
- Custody Battles: While infidelity does not automatically result in loss of custody (especially for children under 7), it can be used to argue against the "moral fitness" of the parent.
Legal Note: The Philippines does not currently recognize "No-Fault Divorce." Consequently, criminal complaints for Adultery or Concubinage are often leveraged in negotiations for legal separation or petitions for Nullity of Marriage under Article 36 (Psychological Incapacity) of the Family Code.