Legal Consequences of Being With a Married Partner: Adultery, Concubinage, and Civil Liability in the Philippines

Introduction

In the Philippines, marital fidelity is a cornerstone of family law, deeply rooted in the country's predominantly Catholic values and enshrined in both criminal and civil statutes. Engaging in a romantic or sexual relationship with a married person—commonly referred to as an extramarital affair—can trigger severe legal repercussions. These consequences are primarily governed by the Revised Penal Code (RPC) for criminal offenses like adultery and concubinage, and the Family Code and Civil Code for civil liabilities. This article explores the full spectrum of legal implications, including definitions, elements, penalties, defenses, and broader societal impacts, all within the Philippine legal framework. While these laws aim to protect the sanctity of marriage, they have faced criticism for gender disparities and outdated provisions.

It is important to note that Philippine law distinguishes between the acts committed by married women (adultery) and married men (concubinage), reflecting historical biases. Additionally, civil remedies often accompany criminal charges, allowing aggrieved spouses to seek compensation for emotional and financial harm. The discussion below covers all relevant aspects, from prosecution to potential reforms.

Criminal Consequences: Adultery and Concubinage

The RPC, enacted in 1930 and still in force with amendments, criminalizes extramarital relations under Articles 333 and 334. These provisions fall under "Crimes Against Chastity" and are prosecuted only upon complaint by the offended spouse, emphasizing their private nature. The offended party must include both the guilty spouse and the paramour in the complaint, and pardon or consent can extinguish the criminal liability.

Adultery (Article 333, RPC)

Adultery is defined as the act of a married woman engaging in sexual intercourse with a man who is not her husband. The paramour (the man involved) is also liable if he knows of her marital status.

Elements of the Crime

To establish adultery, the following must be proven beyond reasonable doubt:

The woman is married (a valid marriage must exist; bigamous or void marriages do not qualify).
She has sexual intercourse with a man not her husband.
The act is consensual (force or incapacity negates liability).
The paramour knows she is married (knowledge can be inferred from circumstances).

Each act of sexual intercourse constitutes a separate offense, allowing for multiple charges.

Penalties

Both the married woman and her paramour face prisión correccional in its medium and maximum periods (2 years, 4 months, and 1 day to 6 years).
If convicted, they may also be subject to accessory penalties like suspension from public office or profession.

Defenses and Extenuating Circumstances

Lack of knowledge of marriage (for the paramour).
Annulment or declaration of nullity of the marriage before final judgment.
Pardon by the offended spouse (must be express and before the institution of the criminal action).
Death of the offended spouse extinguishes the case.
Prescription: The crime prescribes in 15 years.

Adultery cases are notoriously difficult to prove due to the need for direct evidence of sexual intercourse, often relying on circumstantial evidence like hotel records, messages, or witness testimonies.

Concubinage (Article 334, RPC)

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

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

The paramour (the woman involved) is liable only if she knows of the man's marriage.

Elements of the Crime

The man is married.
He commits one of the three acts above.
The act involves a woman not his wife.
Knowledge of marriage (for the woman in modes 2 and 3).

Unlike adultery, a single act may suffice if it meets the criteria, but proof of cohabitation or scandal is required.

Penalties

The husband faces prisión correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months).
The concubine (woman) is punished with destierro (banishment from a certain place for 6 months and 1 day to 6 years), a lighter penalty.
Accessory penalties may apply.

This disparity in penalties—harsher for women in adultery versus men in concubinage—has been critiqued as discriminatory, violating equal protection under the 1987 Constitution. However, the Supreme Court has upheld the distinction in cases like People v. Nepomuceno (1960), arguing it reflects societal norms.

Defenses and Extenuating Circumstances

Similar to adultery:

Lack of knowledge (for the woman).
Pardon by the offended wife.
No scandal or cohabitation proven.
Prescription: 10 years.

Prosecution often hinges on evidence like shared residences, public displays of affection, or financial support to the mistress.

Comparative Analysis and Criticisms

Aspect	Adultery (Married Woman)	Concubinage (Married Man)
Applicability	Married woman and her paramour	Married man and his concubine
Proof Required	Sexual intercourse (each act separate)	Cohabitation, scandal, or keeping in home
Penalty Severity	Medium to maximum prisión correccional	Minimum to medium prisión correccional (husband); destierro (woman)
Gender Bias	Harsher; seen as discriminatory	Lighter; criticized for leniency
Prosecution Rate	Higher due to easier proof in some cases	Lower, as scandal/cohabitation harder to prove

Critics argue these laws are archaic, promoting gender inequality and infringing on privacy rights under Article III of the Constitution. Proposals for decriminalization have been floated in Congress, but none have passed. In practice, many cases settle out of court to avoid public scandal.

Civil Liability

Beyond criminal sanctions, extramarital affairs can lead to civil actions under the Family Code (1987), Civil Code (1950), and related laws. These focus on dissolving the marriage, dividing property, and compensating for damages.

Grounds for Legal Separation or Annulment (Family Code, Articles 55-56, 45-47)

Adultery or concubinage serves as a ground for legal separation (not absolute divorce, which is unavailable except for Muslims or foreigners).
For legal separation:
- The aggrieved spouse files a petition.
- Consequences: Separation of bed and board, but marriage bond remains; property regime dissolves (absolute community or conjugal partnership liquidated).
- Child custody favors the innocent spouse; support obligations continue.
If the marriage is voidable (e.g., due to psychological incapacity under Article 36), affairs may evidence incapacity, leading to annulment.
Bigamy (Article 349, RPC) could arise if the affair leads to a second marriage, but that's separate.

Damages Under the Civil Code (Articles 19-21, 26, 2176)

The paramour and guilty spouse may be held liable for:

Moral Damages: For mental anguish, besmirched reputation, or social humiliation (e.g., P100,000-P500,000 in awards, based on cases like Baksh v. CA, 1993).
Exemplary Damages: To deter similar acts.
Nominal Damages: If no actual harm but rights violated.
Attorney's Fees and Costs.

The cause of action is often "abuse of rights" or quasi-delict. The paramour can be sued independently if they knowingly interfered in the marriage (akin to alienation of affection, though not formally named as such in PH law).

Elements for Civil Liability

Wrongful act (e.g., affair causing harm).
Damage to the plaintiff (emotional, financial).
Causal connection.
For the paramour: Knowledge and intent to disrupt the marriage.

Prescription: 4 years for quasi-delict, 5 years for injury to rights.

Impact on Property and Children

Property Regime: Affairs can lead to forfeiture of the guilty spouse's share in community property (Family Code, Article 63).
Child Legitimacy: Children from affairs are illegitimate (Family Code, Article 165), affecting inheritance (intestate share halved) and support rights.
Support and Custody: The guilty parent may lose custody; support must still be provided.
Related Laws: Under RA 9262 (Anti-VAWC Act, 2004), if the affair involves psychological violence (e.g., infidelity causing distress), it could lead to protection orders, fines (P5,000-P300,000), or imprisonment (6 months-6 years).

Broader Implications and Societal Context

Engaging with a married partner can result in professional repercussions (e.g., disbarment for lawyers under Code of Professional Responsibility) or immigration issues (e.g., visa denials for moral turpitude). Social stigma remains strong, often leading to family breakdowns.

Reform efforts include bills to equalize penalties or decriminalize infidelity, aligning with international human rights standards (e.g., CEDAW). However, conservative opposition persists.

In conclusion, while these laws protect marital integrity, they impose significant burdens. Individuals should seek legal counsel to navigate these complexities, as outcomes depend on evidence and jurisdiction (e.g., Metropolitan Trial Courts for criminal, Regional Trial Courts for civil). This framework underscores the Philippines' unique stance on marriage in a global context where divorce is more common.