In the Philippines, marital infidelity is not merely a private grievance or a ground for legal separation; it is a criminal offense. Under the Revised Penal Code (RPC), infidelity is prosecuted under two distinct concepts: Adultery and Concubinage. While both fall under "Crimes Against Chastity," the law treats them with significant disparity regarding the elements of the crime and the severity of the penalties.
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.
- Who is liable: The wife and her paramour.
- Essential Elements:
- The woman is legally married to another man.
- She has sexual intercourse with a man other than her husband.
- As for the paramour, he must know that the woman is married at the time of the act.
- The Standard of Proof: A single act of sexual intercourse is sufficient to constitute adultery.
- Penalty: Prision correccional in its medium and maximum periods (typically 2 years, 4 months, and 1 day to 6 years).
2. Concubinage (Article 334, RPC)
Concubinage is committed by a married man under specific, restrictive circumstances. Unlike adultery, simple sexual infidelity by a husband does not automatically constitute concubinage.
- Who is liable: The husband and his concubine.
- Essential Elements (The "Three Ways"): To be convicted of concubinage, the husband must do any of the following:
- Keep a mistress in the conjugal dwelling;
- Have sexual intercourse under scandalous circumstances; or
- Cohabit (live together) with her in any other place.
- The Standard of Proof: It is significantly harder to prove than adultery. The prosecution must prove "cohabitation" (a shared life/household) or "scandalous circumstances" (acts that shock public morals), rather than just the act of sex.
- Penalty: * For the Husband: Prision correccional in its minimum and medium periods (typically 6 months and 1 day to 4 years and 2 months).
- For the Concubine: The penalty is only destierro (banishment from a specific radius for a certain period), not imprisonment.
3. Key Legal Distinctions
| Feature | Adultery (Wife) | Concubinage (Husband) |
|---|---|---|
| Required Act | A single act of sexual intercourse. | Cohabitation, mistress in the house, or scandalous sex. |
| Penalty Severity | Higher (Imprisonment for both). | Lower (Imprisonment for him; banishment for her). |
| Proof of Knowledge | Paramour must know she is married. | Concubine's knowledge of marriage is generally implied by the circumstances. |
4. Common Procedural Rules
Both crimes are considered Private Crimes, meaning they are subject to specific procedural requirements under the Rules of Court:
- Who can file: Only the offended spouse can initiate the criminal complaint.
- Pardon and Consent: The case cannot be prosecuted if the offended spouse has consented to the offense or pardoned the offenders (expressly or impliedly).
- The "Joint Party" Rule: The offended spouse must include both the guilty spouse and the third party (paramour/concubine) in the complaint, provided they are both alive.
- Effect of Death: If one of the accused dies before or during the trial, the criminal liability is extinguished for that individual, but the case may proceed against the survivor.
5. Constitutional and Civil Perspectives
The "Equal Protection" Debate
The disparity between Adultery and Concubinage has been a subject of long-standing criticism. Critics argue that the higher burden of proof and lower penalties for men violate the Equal Protection Clause of the Constitution and the Magna Carta of Women (R.A. 9710). However, the RPC remains the prevailing law until Congress passes a bill to decriminalize or unify these offenses under a gender-neutral "Marital Infidelity" law.
Impact on Family Law
While the criminal cases proceed in Municipal or Regional Trial Courts, they have profound effects on civil status:
- Legal Separation: A conviction for adultery or concubinage is a ground for legal separation under the Family Code.
- Custody and Support: While not an absolute bar to custody, a parent’s "moral depravity" (as evidenced by a conviction) can be used to argue that they are unfit to care for children.
- Psychological Incapacity: Infidelity itself is not "psychological incapacity" for annulment (Article 36), but it is often used as a symptom to prove an underlying personality disorder that renders the spouse incapable of complying with marital obligations.
Article 247: Death or Physical Injuries Under Exceptional Circumstances
Under Article 247 of the RPC, a legally married person who surprises their spouse in the act of sexual intercourse with another person and kills any or both of them in the act or immediately thereafter shall suffer the penalty of destierro (banishment). This is not a "license to kill" but a recognition of the "uncontrollable fury" provoked by the discovery of infidelity. This protection also applies to parents who surprise their daughters (under 18) and their seducers.