In the Philippines, marital infidelity is not merely a moral grievance or a ground for legal separation; it is a criminal offense. However, the law distinguishes between the genders of the offending spouse, categorizing infidelity as either Adultery or Concubinage under the Revised Penal Code (RPC).
Understanding these distinctions is crucial, as the elements, burden of proof, and penalties differ significantly between the two.
1. Adultery (Article 333, RPC)
Adultery is committed by a married woman and by the man who has carnal knowledge of her, knowing her to be married.
Key Elements:
- The Woman is Married: The marriage must be valid or at least voidable (not yet annulled).
- Sexual Intercourse: The woman has sexual intercourse with a man other than her husband.
- Knowledge of Marriage: The man (the paramour) must know that the woman is married at the time of the act.
Legal Nuances:
- Proof of Act: Each individual act of sexual intercourse constitutes one count of adultery.
- Evidence: Since direct evidence (catching them in the act) is difficult to obtain, Philippine courts often accept circumstantial evidence. If the circumstances (e.g., staying together in a hotel room, intimate correspondence, or public admissions) lead to a reasonable conclusion that sexual intercourse occurred, a conviction can stand.
- Penalty: Adultery carries the penalty of prision correccional in its medium and maximum periods.
2. Concubinage (Article 334, RPC)
Concubinage is committed by a married man under specific, narrow circumstances. Unlike adultery, the mere act of sexual intercourse outside of marriage is not enough to convict a husband of concubinage.
Legal Grounds (The Three Ways to Commit Concubinage):
A husband can only be charged if he:
- Keeps a mistress in the conjugal dwelling: Bringing the woman into the home shared with his legal wife.
- Has sexual intercourse under scandalous circumstances: The relationship is so public and blatant that it offends public morals or causes a stir in the community.
- Cohabits with her in any other place: Living together as husband and wife in a different residence.
Legal Nuances:
- Higher Burden of Proof: It is much harder to convict a man of concubinage than a woman of adultery. A single "one-night stand" by a husband does not constitute concubinage; there must be an element of "keeping" or "cohabiting."
- Penalty: The husband faces prision correccional in its minimum and medium periods (a lighter sentence than adultery). The concubine is not imprisoned but is served with a "destierro" (banishment), meaning she is prohibited from entering a specific radius around the complainant's residence for a set period.
3. Comparison of Penalties and Requirements
| Feature | Adultery (Wife) | Concubinage (Husband) |
|---|---|---|
| Offending Spouse | The Wife | The Husband |
| Required Act | Any sexual intercourse | Cohabitation, keeping in the home, or scandalous sex |
| Penalty for Spouse | 2 years, 4 months to 6 years | 6 months to 4 years and 2 months |
| Penalty for Paramour | Same as the wife | Destierro (Banishment) |
4. Prosecution and Common Defenses
Who Can Sue?
Only the offended spouse can file the complaint. The law requires that the offended party must include both the guilty spouse and the paramour in the charge (unless one of them is already dead).
The Defense of Consent or Pardon:
Under Article 344 of the RPC, the case will be dismissed if:
- Consent: The offended spouse agreed to the infidelity beforehand.
- Pardon: The offended spouse expressly or impliedly forgave the offending spouse after the discovery of the infidelity. "Implied pardon" often occurs when the husband and wife continue to live together or have sexual relations after the affair is known.
Psychological Incapacity (Article 36, Family Code):
While adultery and concubinage are criminal cases, they are often used as evidence in civil cases for Declaration of Nullity of Marriage. While "infidelity" itself is not psychological incapacity, a pattern of habitual infidelity may be presented as a symptom of a deeper psychological inability to comply with essential marital obligations.
5. Notable Jurisprudence
- People vs. Zapata and Bondoc: Established that each act of sexual intercourse in adultery is a separate crime.
- Ocampo vs. People: Clarified the definition of "scandalous circumstances" in concubinage, noting that it requires more than just the community knowing about the affair—it requires an element of public defiance of morality.
- The "Double Standard" Debate: There have been numerous attempts in the Philippine Congress to repeal these articles in favor of a gender-neutral "Marital Infidelity" law, as the current RPC is often criticized for being discriminatory against women by making adultery easier to prove and more harshly punished.