Introduction

In the Philippines, extramarital affairs are not merely social or moral issues but carry significant legal consequences rooted in the country's civil and criminal laws. The legal framework governing such matters is primarily derived from the Revised Penal Code (Act No. 3815, as amended), the Family Code of the Philippines (Executive Order No. 209), and related jurisprudence from the Supreme Court. These laws reflect the Philippines' strong emphasis on the sanctity of marriage, influenced by its predominantly Catholic culture and colonial history under Spanish rule, which introduced concepts like adultery and concubinage.

Extramarital affairs can lead to criminal prosecution, civil suits for damages, grounds for annulment or legal separation, and even impact child custody or property division. However, the laws are notably gender-specific in their criminal provisions, a remnant of outdated patriarchal norms that have been criticized for inequality. This article explores the criminal liabilities, civil remedies, procedural aspects, penalties, defenses, and broader implications of extramarital affairs under Philippine law.

Criminal Liabilities: Adultery and Concubinage

The cornerstone of criminal actions against extramarital affairs is found in Articles 333 and 334 of the Revised Penal Code.

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 her to be married. Key elements include:

The offender must be a married woman.
There must be actual sexual intercourse.
The male participant must know of her marital status, even if the marriage is later declared void.

This crime is considered a private offense, meaning it can only be prosecuted upon the complaint of the offended spouse (the husband). If the husband condones the act or pardons the wife, the case cannot proceed. Notably, adultery does not require ongoing cohabitation or scandal; a single act of intercourse suffices.

Concubinage (Article 334, RPC)

Concubinage applies to married men and involves three modes of commission:

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

The elements require proof of the husband's marriage, the act of keeping or cohabiting with a mistress, and scandal or cohabitation. Unlike adultery, concubinage is harder to prove due to the need for evidence of ongoing relations or scandal, such as public displays that offend public decency.

Similar to adultery, concubinage is a private crime prosecutable only by the offended wife. Pardon or consent by the wife extinguishes the criminal liability.

Gender Disparity and Criticisms

The laws on adultery and concubinage have been criticized for gender bias. Adultery penalizes the wife for a single act, while concubinage requires more substantial proof against the husband, such as cohabitation or scandal. This disparity has led to calls for reform, with arguments that it violates equal protection under the 1987 Constitution (Article II, Section 14). However, the Supreme Court has upheld these provisions in cases like People v. Nepomuceno (G.R. No. L-40624, 1976), reasoning that they protect the family unit differently based on societal roles. Despite this, no major legislative changes have equalized the offenses, though bills have been proposed in Congress to decriminalize or harmonize them.

Related Criminal Offenses

Extramarital affairs may intersect with other crimes:

Bigamy (Article 349, RPC): Marrying another while still legally married, which could stem from an affair leading to a second marriage.
Acts of Lasciviousness or Seduction (Articles 336-339, RPC): If the affair involves minors or coercion.
Violence Against Women and Their Children (RA 9262): Infidelity can be considered psychological violence if it causes mental anguish, potentially leading to protection orders or criminal charges.
Cybercrime Prevention Act (RA 10175): If the affair involves online sexting or sharing intimate images without consent, it could constitute cyber libel or violations under the Anti-Photo and Video Voyeurism Act (RA 9995).

Civil Remedies and Family Law Implications

Beyond criminal prosecution, extramarital affairs provide grounds for civil actions under the Family Code.

Annulment and Declaration of Nullity (Articles 35-55, Family Code)

Infidelity itself is not a direct ground for annulment, but it can support claims of psychological incapacity (Article 36), which renders the marriage void ab initio. In landmark cases like Republic v. Molina (G.R. No. 108763, 1997), the Supreme Court clarified that psychological incapacity must be grave, juridical antecedence, and incurable, often proven through expert testimony. An affair may evidence such incapacity if it demonstrates an inability to fulfill marital obligations.

Fraud (Article 45), such as concealing a previous affair leading to pregnancy by another, can also be a ground for annulment.

Legal Separation (Articles 55-67, Family Code)

Sexual infidelity or perversion is an explicit ground for legal separation (Article 55[1]). Unlike annulment, legal separation does not dissolve the marriage but allows spouses to live separately, with effects on property and custody. The petition must be filed within five years from discovery of the infidelity.

In legal separation proceedings, the guilty spouse may lose custody of minor children (Article 63) and forfeit their share in the conjugal property (Article 63[4]).

Damages and Moral Damages

Under the Civil Code (Articles 19-21, 26), the offended spouse can sue for moral damages due to anguish from the affair. In Marcia v. Court of Appeals (G.R. No. 106615, 1996), the Court awarded damages for alienation of affection if a third party induces the affair. Additionally, under RA 9262, economic abuse tied to infidelity can lead to civil claims.

Child Custody and Support

Infidelity can influence custody decisions under Article 211 of the Family Code, prioritizing the child's welfare. A parent involved in an affair may be deemed unfit if it affects parenting, as seen in cases like Santos v. Court of Appeals (G.R. No. 113054, 1995).

Illegitimate children from affairs are entitled to support (Article 195) but have limited inheritance rights compared to legitimate ones (Article 176, as amended by RA 9255).

Procedural Aspects

Filing Complaints

Criminal complaints for adultery or concubinage must be filed with the prosecutor's office by the offended spouse. Evidence typically includes witness testimonies, hotel records, messages, or DNA tests for children born from the affair.

Civil petitions for annulment or legal separation are filed in the Regional Trial Court (Family Court). The process involves pre-trial, mediation, and trial, often taking years due to court backlogs.

Prescription and Pardon

Adultery and concubinage prescribe after 15 years (Article 90, RPC). Pardon by the offended spouse, express or implied (e.g., continued cohabitation), bars prosecution.

Burden of Proof

In criminal cases, proof beyond reasonable doubt is required, making convictions rare without direct evidence. In civil cases, preponderance of evidence suffices.

Penalties

Criminal Penalties

Adultery: Prision correccional in its medium and maximum periods (2 years, 4 months, and 1 day to 6 years) for both the wife and her paramour.
Concubinage: Prision correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months) for the husband; destierro (banishment) for the concubine.

Fines may also apply under RA 10175 if cyber elements are involved.

Civil Consequences

Forfeiture of property share.
Loss of custody.
Payment of damages, potentially in millions of pesos depending on the case.

Defenses and Mitigating Factors

Common defenses include:

Lack of knowledge of marital status (for the third party).
Absence of sexual intercourse or scandal.
Pardon or condonation.
Invalid marriage (e.g., bigamous, which could nullify the charge).

Mitigating circumstances, like voluntary surrender, may reduce penalties.

Broader Implications and Societal Context

Extramarital affairs in the Philippines often lead to social stigma, family breakdowns, and economic hardship. With no divorce law (except for Muslims under the Code of Muslim Personal Laws), couples are limited to annulment or separation, making legal actions costly and protracted. Public figures involved in scandals face media scrutiny, amplifying consequences.

Reform efforts, including proposals to introduce absolute divorce (e.g., House Bill No. 9349 in previous Congresses), aim to address these issues, but progress is slow due to opposition from religious groups.

In conclusion, while the laws provide mechanisms to address extramarital affairs, they underscore the need for gender equality and modernization in Philippine family law to better reflect contemporary values. Individuals facing such situations are advised to consult legal professionals for personalized guidance.