In the Philippines, marital infidelity is not merely a moral or civil issue; it is a criminal offense governed by the Revised Penal Code (RPC). However, the law does not treat men and women equally in this regard. The legal framework distinguishes between Adultery, which applies to wives, and Concubinage, which applies to husbands.
Understanding these distinctions is crucial for anyone navigating the complexities of Family Law in the Philippine jurisdiction.
1. Adultery (Article 333, RPC)
Adultery is committed by a married woman who has sexual intercourse with a man not her husband, and by the man who has carnal knowledge of her, knowing her to be married.
- The Threshold of Proof: To secure a conviction, the husband only needs to prove a single act of sexual intercourse.
- The Participants: Both the wife and her lover are criminally liable.
- Penalties: The penalty for the wife and her lover is prision correccional in its medium and maximum periods (ranging from 2 years, 4 months, and 1 day to 6 years).
2. Concubinage (Article 334, RPC)
Concubinage is committed by any married man who shall:
- Keep a mistress in the conjugal dwelling;
- Have sexual intercourse, under scandalous circumstances, with a woman who is not his wife; OR
- Cohabit with her in any other place.
- The Higher Burden of Proof: Unlike adultery, a single act of infidelity is insufficient for a concubinage conviction. The wife must prove one of the three specific conditions mentioned above. "Cohabitation" implies a "dwelling together" or a more permanent arrangement than a fleeting encounter. "Scandalous circumstances" requires public knowledge or an affront to public morals.
- Penalties: The husband faces prision correccional in its minimum and medium periods (shorter than the wife's penalty). The concubine (the mistress) is only given the penalty of destierro (banishment from a specific radius), not imprisonment.
3. Key Procedural Requirements
The prosecution of these crimes is subject to specific rules under the Rules of Court and the RPC:
- Private Crimes: Adultery and concubinage are private crimes. They can only be prosecuted upon a complaint filed by the offended spouse.
- Inseparability of Parties: The offended spouse cannot file a complaint against only one of the guilty parties (e.g., just the wife or just the husband). Both the cheating spouse and the "third party" must be included in the same complaint.
- Pardon and Consent: The law provides that the offended spouse cannot institute criminal proceedings if he/she has consented to the offense or pardoned the offenders. A pardon can be express or implied (e.g., continued cohabitation after knowledge of the affair).
4. Civil Effects and Legal Separation
Criminal prosecution is often used as leverage or a precursor to civil actions. Under the Family Code of the Philippines, "sexual infidelity or perversion" is a ground for Legal Separation (Article 55).
- Legal Separation vs. Annulment: Legal separation allows the couple to live apart and divide their properties, but it does not dissolve the marriage bond. Neither party can remarry.
- Psychological Incapacity: In some cases, habitual infidelity may be used as evidence to prove Psychological Incapacity under Article 36 of the Family Code to have the marriage declared void ab initio (from the beginning). However, the infidelity must be linked to a deep-seated psychological condition that prevents the spouse from complying with essential marital obligations.
5. Summary of Differences
| Feature | Adultery (Wife) | Concubinage (Husband) |
|---|---|---|
| Required Act | Single act of intercourse. | Keeping in the home, cohabiting elsewhere, or scandalous intercourse. |
| Primary Penalty | Imprisonment (Prision Correccional). | Imprisonment (Prision Correccional). |
| Third Party Penalty | Imprisonment. | Banishment (Destierro). |
| Ease of Prosecution | Generally easier to prove. | Harder to prove due to specific conditions. |
6. The "Honor" Defense (Article 247, RPC)
A unique and controversial provision in the RPC is Death or Physical Injuries Inflicted Under Exceptional Circumstances. If a legally married person surprises their spouse in the act of committing sexual intercourse with another person and kills any or both of them in the act or immediately thereafter, the penalty is merely destierro. This is not a "license to kill" but a recognition of the temporary loss of self-control due to extreme provocation.
7. Modern Legal Perspectives
There are ongoing legislative efforts and discussions regarding the "decriminalization" of adultery and concubinage, or at least the equalization of the law. Critics argue that the current distinctions are discriminatory against women (as it is easier to convict a wife) and rooted in outdated patriarchal views of "honor" and "property." Until such laws are amended by Congress, the distinctions under Articles 333 and 334 remain the prevailing law of the land.