Legal Actions Against a Spouse Who Is Cohabiting With Another Person in the Philippines

This article provides a Philippine-specific, statute-grounded overview of remedies—criminal, civil, and administrative—available when a legally married spouse lives or maintains an intimate relationship with another person. It is general information, not legal advice.

I. Core Legal Framework

Family Code of the Philippines
- Governs marriage, property relations, legal separation, annulment/nullity, support, custody, and effects of marital breaches.
Revised Penal Code (RPC)
- Adultery (Art. 333) and Concubinage (Art. 334) are crimes “against chastity,” prosecuted only upon complaint by the offended spouse (a “private offense” under the RPC and related rules).
Special Penal Laws
- Bigamy (RPC Art. 349) – contracting a second marriage while the first subsists.
- Violence Against Women and Their Children (RA 9262) – includes psychological violence (e.g., marital infidelity and cohabitation causing mental or emotional anguish), economic abuse, and provides Protection Orders.
- Anti-Wiretapping Act (RA 4200) – criminalizes recording private communications without legal authority or consent.
- Rules on Electronic Evidence – govern admissibility of digital proof (texts, emails, social media posts, call logs, photos, metadata).

II. Criminal Liability Potentially Triggered by Cohabitation

A. Adultery (Art. 333 RPC)

Who can be liable? A married wife who has sexual intercourse with a man not her husband, and the paramour who knows she is married.
Elements:
1. The woman is married; 2) sexual intercourse occurred; 3) the other party knew she was married.
Key notes:
- Each act of intercourse is a separate offense.
- Requires proof of sexual intercourse; direct evidence is rare but strong circumstantial evidence can suffice.
- Penalty: prisión correccional (medium to maximum); the paramour faces the same if he knew of the marriage.
- Procedural bars: Prior consent or pardon/condonation by the offended husband bars prosecution; case must be initiated by the offended husband, and both offenders must be included if both are alive.

B. Concubinage (Art. 334 RPC)

Who can be liable? A married husband and his concubine under any of the following modes:
1. Keeping a mistress in the conjugal dwelling;
2. Having sexual intercourse with a woman under scandalous circumstances;
3. Cohabiting with her in any other place.
Proof considerations: Unlike adultery (which penalizes each act of intercourse), concubinage targets patterns/circumstances (keeping, scandal, cohabitation).
Penalty: Husband—prisión correccional (minimum to medium); concubine—destierro (banishment).
Procedural bars: Similar to adultery—private offense requiring a complaint by the offended wife; consent/pardon bars prosecution; both must be included in the complaint if alive.

C. Bigamy (Art. 349 RPC)

Trigger: If the erring spouse contracts a second marriage while the first is still valid and subsisting.
Notes:
- Bigamy is publicly prosecutable (not a private offense).
- Completion of the second marriage ceremony is enough—cohabitation is immaterial to liability.
- Good-faith belief in nullity requires prior judicial declaration; a later declaration generally does not retroactively excuse bigamy.

D. Violence Against Women and Their Children (RA 9262)

Who may be protected? Wives, former spouses, women in dating or sexual relationships with the offender, and their children.
Relevance of cohabitation: Marital infidelity/cohabitation that causes psychological violence (e.g., humiliation, mental/emotional anguish, public ridicule) or economic abuse (e.g., denial of support due to the affair) can lead to criminal liability under RA 9262.
Relief: Immediate Protection Orders (Barangay, Temporary, or Permanent), custody arrangements, and support orders can issue even before full trial.

III. Civil and Family-Law Remedies

A. Legal Separation (Family Code, Art. 55)

Grounds include: Sexual infidelity or perversion, repeated physical violence, etc.
Effects upon decree (Art. 63):
- Separation from bed and board (no re-cohabitation duty).
- Dissolution of the property regime and forfeiture of the guilty spouse’s share in net profits in favor of the innocent spouse and common children.
- Disqualification of the guilty spouse from inheriting ab intestato from the innocent spouse; revocation of donations/benefits.
- Support, custody, and visitation are fixed by the court.
No capacity to remarry (bond subsists).

B. Annulment / Declaration of Nullity

Cohabitation or an affair is not, by itself, a ground to void the marriage. However, facts showing deeply rooted traits (e.g., psychological incapacity) may support a declaration of nullity under Art. 36 if they existed at the time of marriage and meet jurisprudential standards (gravity, juridical antecedence, incurability). This is fact-intensive and requires expert testimony.

C. Support, Custody, and Protection Orders

Independent actions for support (spousal/child) may proceed.
Under RA 9262, courts can order support, exclusive use of domicile, stay-away orders, and temporary custody.

D. Damages Against the Erring Spouse or the Paramour

Although the Philippines does not recognize a US-style “alienation of affection” tort, injured spouses have successfully sought moral and exemplary damages under Civil Code Arts. 19, 20, 21 (abuse of rights/acts contra bonos mores) for marital infidelity and cohabitation that cause humiliation and injury to dignity and family life.

IV. Procedure, Jurisdiction, and Prescription

Who may file and where
- Adultery/Concubinage: Only the offended spouse, by sworn complaint, typically in the place where the offense occurred or where elements took place. Both alleged offenders must be charged if alive.
- RA 9262: The offended woman (or a qualified representative) may file criminal complaints with the prosecutor or police and separately apply for Protection Orders (Barangay for BPO; Family Court/RTC for TPO/PPO).
- Legal separation/nullity/annulment: Filed with the Family Court (RTC designated as such) where either spouse resides.
Cooling-off / Mediation
- Legal separation proceedings ordinarily observe a six-month cooling-off period from filing (except when not advisable, e.g., violence), to encourage possible reconciliation.
Prescription (Statute of Limitations)
- Adultery/Concubinage: Generally 10 years (correctional penalty) from discovery by the offended spouse.
- RA 9262 & Bigamy: Governed by their respective statutory/regulatory rules; do not assume short periods.
Compromise and Pardon
- Adultery/Concubinage: Consent or express/implied pardon before filing bars prosecution; pardon after filing can affect prosecution depending on timing and form.
- RA 9262: Crimes involving violence are generally non-compromisable; protection orders and prosecutions proceed notwithstanding later private settlements.

V. Evidence & Proof Strategy

What helps
- Digital evidence: messages, emails, photos, call logs, location data, booking records, financial records, birth records of an alleged love child, consistent witness accounts.
- Patterns: shared lease/utility bills, personal effects at the same residence, joint social media presence, neighborhood testimony—especially relevant to concubinage (keeping/cohabitation).
- For RA 9262: medical/psychological reports documenting mental anguish; proof of economic abuse (withholding support).
What to avoid
- Illegal recordings violating RA 4200 (audio recordings of private conversations without consent).
- Unlawful access to accounts or devices (computer/data privacy offenses).
- Self-help that risks violence, defamation, or child endangerment.
Admissibility
- Follow the Rules on Electronic Evidence: establish authenticity, integrity, relevance, and chain of custody; preserve original formats and metadata.

VI. Practical Pathways Depending on Goals

Goal 1: Immediate Safety & Stability

Seek a Barangay Protection Order (BPO) for quick relief (valid 15 days), then a Temporary (TPO) and Permanent Protection Order (PPO) under RA 9262.
Petition for support and temporary custody; request exclusive residence and stay-away directives if appropriate.

Goal 2: Accountability for the Affair

If the spouse is a wife: consider adultery complaint (with paramour).
If the spouse is a husband: consider concubinage (focus on keeping/cohabitation/scandal) or RA 9262 for psychological violence/economic abuse; if a second marriage exists, evaluate bigamy.
Weigh evidentiary thresholds: adultery requires sexual intercourse proof; concubinage requires specific modes (keeping, scandal, cohabitation). RA 9262 centers on harm caused.

Goal 3: Restructuring the Marriage & Finances

File for legal separation (ground: sexual infidelity). Effects include property dissolution and potential forfeitures against the guilty spouse, while preserving the bond (no remarriage).
Alternatively, explore nullity under Art. 36 only if facts indicate pre-existing psychological incapacity meeting jurisprudential standards.

Goal 4: Civil Compensation

Consider a damages suit under Arts. 19/20/21 against the spouse and, when warranted, the paramour for moral and exemplary damages, anchored on proof of indignity, humiliation, and family disruption.

VII. Special Situations & Nuances

Pregnancy/Children outside marriage: May serve as potent circumstantial evidence; also affects support and successional issues for the child (acknowledgment, filiation).
Public officials/military/PNP personnel: Internal administrative liability (conduct prejudicial to the best interest of the service; immoral conduct) may attach in addition to criminal/civil cases.
OFW/long-distance marriage: Venue and service issues arise; consider electronic evidence and letters rogatory/video conferencing testimony as allowed by rules.
Religious or customary marriages: Civil effects hinge on compliance with civil law; absent that, criminal liability (e.g., bigamy) still follows from the civil status of the first marriage.

VIII. Common Defenses & How They Affect Strategy

Consent or Condonation (e.g., tolerated relationship, “open marriage”): may bar adultery/concubinage; document absence of consent.
Lack of knowledge of marriage (paramour in adultery): prosecution must prove he knew she was married.
Insufficient proof of sexual intercourse (adultery) or of “keeping/scandal/cohabitation” (concubinage): tailor evidence to the specific element set.
Good-faith belief in nullity: Usually insufficient for bigamy unless supported by a prior court decree declaring the first marriage void.

IX. Step-by-Step Action Checklist

Safety first: If there is intimidation, stalking, or violence, document and pursue BPO/TPO/PPO immediately.
Preserve evidence: Secure lawful copies of communications, photos, bills/leases, and keep a dated incident log. Avoid illegal recordings.
Consult counsel early: Decide the forum(s)—criminal (adultery/concubinage, RA 9262, bigamy), civil (damages), family (legal separation/nullity), or a combination.
Assess children’s interests: Prepare for support and custody filings; prioritize best interests of the child.
Financial audits: Trace transfers or conjugal funds spent on the affair; raise reimbursement/forfeiture in property liquidation or damages suits.
File the right complaint(s):
- Adultery/Concubinage: sworn complaint by the offended spouse naming both alleged offenders.
- RA 9262: criminal complaint + petition for Protection Orders.
- Legal separation: verified petition with evidence of infidelity; expect cooling-off (unless violence).
- Damages: civil complaint under Arts. 19/20/21.
Mind prescription: Do not delay; for adultery/concubinage, count generally 10 years from discovery.

X. Key Takeaways

Cohabitation can ground concubinage (for husbands), support adultery (for wives, via proof of intercourse), constitute psychological/economic violence under RA 9262, and—if a second marriage exists—bigamy.
Private offense rules are decisive in adultery/concubinage: only the offended spouse may initiate; consent/pardon can bar cases; both offenders must be pursued together.
Family-law remedies (especially legal separation) can realign property rights, support, and custody without dissolving the marital bond.
Thoughtful evidence curation—lawful, authentic, and relevant—is often the difference between success and dismissal.

Final Note

The best course depends on your priorities—safety, accountability, finances, or marital status—and the quality of evidence available. A Philippine family/criminal law practitioner can help you triage options, assess evidentiary strength, and sequence filings to protect you and your children effectively.