Legal Actions Against Adultery in the Philippines

I. Introduction

The Philippines remains one of the few countries in the world that still criminalizes adultery. Unlike most modern jurisdictions that have decriminalized or abolished adultery as a crime, the Philippines continues to treat marital infidelity — particularly by the wife — as a public offense under the Revised Penal Code (Act No. 3815, as amended). This archaic framework reflects the country's strong Catholic influence and the absence of absolute divorce for the majority of its citizens.

Adultery is governed primarily by Articles 333 and 344 of the Revised Penal Code, in conjunction with relevant provisions of the Family Code (Executive Order No. 209, as amended), the Rules of Court, and settled Supreme Court jurisprudence.

II. Definition and Elements of the Crime

Article 333 of the Revised Penal Code provides:

"Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void."

The elements are therefore:

1. The woman is validly married;
2. She has sexual intercourse with a man not her husband;
3. The man knows that the woman is married at the time of the sexual intercourse.

Key points from jurisprudence:

• A single act of sexual intercourse constitutes the crime (People v. Zapata, G.R. No. L-3047, May 30, 1951).
• The marriage need not be subsisting at the time of prosecution; even if subsequently annulled or declared void ab initio, the crime subsists because the article expressly states "even if the marriage be subsequently declared void."
• The paramour is liable only if he had knowledge of the woman's married status. Lack of knowledge is a complete defense for him.
• There is no crime if the woman honestly and reasonably believed her husband was dead (U.S. v. Enriquez, G.R. No. 7084, September 15, 1912), though this is extremely rare and heavily scrutinized.

III. Penalty

Article 333 imposes the penalty of prisión correccional in its medium and maximum periods on both the guilty wife and the guilty paramour.

Current penalty range (after Indeterminate Sentence Law and RA 10951 adjustments):

• 2 years, 4 months, and 1 day to 6 years.

Both accused suffer the same penalty — there is no distinction in punishment between the wife and the paramour.

IV. Nature of the Crime: Private Crime Requiring Complaint by Offended Spouse

Article 344 of the Revised Penal Code:

"The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse."

Consequences:

• Only the offended husband may file the complaint. The paramour's wife, children, or any third party has no legal personality to initiate prosecution.
• The complaint must be filed by the husband personally or through a duly authorized attorney-in-fact.
• Public prosecutors cannot file the information without the sworn complaint of the offended spouse.
• The offended spouse cannot be compelled to testify against his will.

V. Extinguishment of Criminal Liability

Article 344 further provides the following modes of extinguishment:

1. Express pardon by the offended spouse;
2. Implied pardon (condonation) — e.g., continued cohabitation after knowledge of the adultery with full awareness;
3. Death of the offended spouse (if no complaint was filed before death);
4. Subsequent marriage between the offender and the offended party (automatic pardon);
5. Desistance by the offended spouse during the pendency of the case.

Once pardoned or condoned, the crime is extinguished even as to the co-accused (paramour).

VI. Prescription of the Crime

Under Article 90 of the Revised Penal Code, as amended by RA 10951 (2017), the crime of adultery prescribes in 15 years (previously 10 years).

The period begins to run from the day of discovery by the offended spouse (People v. Reyes, G.R. Nos. L-26326-27, February 27, 1970).

VII. Distinction from Concubinage (Article 334)

The law treats husbands and wives differently:

Aspect	Adultery (Wife)	Concubinage (Husband)
Mere sexual intercourse outside marriage	Sufficient	Not sufficient
Required circumstances	None	1. Keeping mistress in conjugal dwelling 2. Sexual intercourse under scandalous circumstances 3. Cohabitation with mistress elsewhere
Penalty for guilty spouse	Prisión correccional medium & maximum	Prisión correccional minimum & medium
Penalty for paramour	Same as guilty wife	Destierro (banishment) only
Who can file complaint	Only offended husband	Only offended wife

This gender discrimination has been repeatedly challenged as violative of the equal protection clause but has been consistently upheld by the Supreme Court as a valid classification based on substantial distinctions (see deliberations in the 1930 Constitutional Convention and subsequent cases).

VIII. Evidentiary Requirements and Proof

• Direct evidence (ocular inspection of the act) is almost never available.
• Circumstantial evidence is sufficient if it produces moral certainty of carnal knowledge (People v. Ellevera, G.R. No. 131864, March 6, 2002).
• Common circumstantial evidence accepted by courts: love letters, hotel receipts, photographs showing intimacy, pregnancy by the paramour, confessions, testimony of private investigators.
• Mere intimacy or opportunity is insufficient; there must be proof of actual sexual intercourse.

IX. Civil Consequences of Adultery

1. Legal Separation (Article 55(1), Family Code)

   • Adultery by the wife is an absolute ground.
   • Effects: dissolution of conjugal partnership, forfeiture of guilty spouse's share in net profits, loss of parental authority over minor children (unless court rules otherwise for child's best interest), inhibition from inheriting intestate from innocent spouse.

2. Declaration of Nullity of Marriage (Article 36, Family Code)

   • Habitual or compulsive adultery may be used as evidence of psychological incapacity, especially when it demonstrates incurable inability to comply with essential marital obligations (Tsoi v. CA is not directly applicable, but cases like Antonio v. Reyes, G.R. No. 155800, March 10, 2006, and subsequent jurisprudence accept serial infidelity as indicative of PI when sufficiently proven).

3. Disinheritance (Article 919(5), Civil Code)

   • Adultery is a ground for disinheriting a spouse in a will.

4. Support and Custody

   • Guilty spouse may be deprived of spousal support and custody of children.

5. Administrative/Criminal Cases Against Public Officials

   • Adultery/concubinage constitutes disgraceful and immoral conduct under the Civil Service Law and may lead to dismissal.

X. Practical Realities and Prosecution Statistics

• Adultery cases are extremely rare in actual prosecution (fewer than 100 convictions per decade nationwide).
• Most complaints are used as leverage in separation, annulment, or support proceedings and are later withdrawn.
• The requirement of offended-spouse complaint makes the crime essentially "negotiable."
• Private investigators and "entrapment" operations are common, though courts scrutinize evidence obtained through entrapment for possible violation of privacy rights (Ople v. Torres privacy doctrine).

XI. Legislative Attempts at Decriminalization/Reform

Multiple bills have been filed since the 8th Congress to repeal Articles 333 and 334:

• Gabriela Women's Party proposals (most prominent)
• Senator Risa Hontiveros bills
• House Bill No. 7334 (18th Congress)
• Discussions during the Duterte administration about equalizing penalties or decriminalizing

As of December 2025, none have prospered. Articles 333 and 334 remain in full force and effect.

XII. Conclusion

Adultery in the Philippines is not merely a private wrong but a public crime punishable by imprisonment, reflecting the State's policy of protecting the sanctity of marriage in a country without divorce. The law's asymmetrical treatment of men and women, its reliance on the offended spouse's complaint, and its severe civil consequences make it a powerful — though rarely used — weapon in marital disputes.

While modern views on gender equality and personal liberty increasingly question its continued existence, the crime of adultery remains firmly entrenched in Philippine statute books and jurisprudence as of 2025.