I. Governing Laws

In the Philippines, sexual infidelity by a married person is governed by two separate legal regimes:

Criminal Law – Articles 333 and 334 of the Revised Penal Code (RPC)
- Adultery (committed by the wife)
- Concubinage (committed by the husband)
Family Law – Article 55(1) of the Family Code (sexual infidelity as ground for legal separation)
Special Laws – R.A. 9262 (Anti-VAWC Law) when the infidelity is accompanied by psychological violence, economic abuse, or marital rape.

There is no absolute divorce in the Philippines (except for Muslims under P.D. 1083). As of December 2025, the Absolute Divorce Bill has not yet been enacted into law despite being passed by the House of Representatives in 2024. The Senate version remains pending. Therefore, the only civil remedies remain legal separation, annulment, or declaration of nullity of marriage.

II. Criminal Actions: Adultery and Concubinage

A. Definition and Elements

Adultery (Art. 333 RPC)

Committed by any married woman who has sexual intercourse with a man not her husband, and by the man who has carnal knowledge of her knowing her to be married.
Penalty: Prisión correccional in its medium and maximum periods (2 years, 4 months and 1 day to 6 years) for both the wife and the paramour.
One single act of sexual intercourse is sufficient.

Concubinage (Art. 334 RPC)

Committed by the husband who:
1. Keeps a mistress in the conjugal dwelling, or
2. Cohabits with her in any other place, or
3. Has sexual intercourse under scandalous circumstances with a woman not his wife.
Penalty: Prisión correccional in its minimum and medium periods (6 months and 1 day to 4 years and 1 day) for the husband; destierro for the mistress.
Mere sexual intercourse is not enough; it must be under scandalous circumstances or cohabitation.

B. Who Can File the Criminal Complaint?

Only the offended spouse can file the complaint (People v. Nepomuceno, G.R. No. L-11990, 1958). Third parties (children, relatives, barangay) cannot initiate the case.

C. Prescription Period

Both adultery and concubinage prescribe in 10 years from discovery (Art. 90 RPC, as amended by Act No. 3763).

D. Special Situation: Offended Spouse is Abroad (OFW or Immigrant)

The offended spouse does NOT need to be physically present in the Philippines to file the case.

Procedure for filing from abroad:

Execute a Complaint-Affidavit and Special Power of Attorney (SPA) before a Philippine Consul or notary public with consular authentication.
The SPA must specifically authorize a lawyer or trusted relative in the Philippines to:
- File the complaint with the Office of the Provincial/City Prosecutor
- Attend preliminary investigation
- Testify on your behalf (if allowed)
Submit the red-ribboned/authenticated documents via courier or through the lawyer.
The prosecutor can conduct preliminary investigation even without your personal appearance (2000 NPS Rule on Preliminary Investigation, Sec. 3(f) allows submission of counter-affidavits through counsel).
Trial proper: Courts now routinely allow video-conferenced testimony (A.M. No. 20-12-01-SC, Rules on Use of Videoconferencing, as expanded post-pandemic). The Supreme Court has repeatedly upheld this for OFWs (see Re: Letter of Judge Bueser, A.M. No. 20-09-04-SC).

Practical Success Rate
OFW-initiated adultery/concubinage cases have very high conviction rates when there is strong evidence (DNA of child born to paramour, CCTV, hotel records, Facebook Messenger screenshots with sexual content, pregnancy, etc.).

E. Special Situation: Erring Spouse is Abroad

If the adulterous act is committed outside Philippine territory, Philippine courts have no criminal jurisdiction (Art. 2 RPC – territoriality principle).

Exception:

If the erring spouse returns to the Philippines, acts committed here (e.g., maintaining the paramour in the Philippines via remittances, video sex, etc.) may constitute continuing concubinage or psychological violence under RA 9262.

III. Civil Action: Legal Separation

A. Ground: Repeated or Single Act of Sexual Infidelity

Article 55(1) of the Family Code treats husband and wife equally – one act of sexual infidelity is sufficient for either spouse.

B. Effects of Legal Separation

Separation of bed and board
Dissolution of absolute community or conjugal partnership
Forfeiture of guilty spouse’s share in net profits
Guilty spouse loses custody of minor children (Art. 63) unless court rules otherwise for child’s best interest
Guilty spouse disqualified from inheriting intestate from innocent spouse

C. Filing When Petitioner is Abroad

The petition may be filed by the Filipino spouse abroad through:

Consularized Special Power of Attorney (red-ribboned) authorizing a lawyer to file and prosecute the case.
Personal appearance is NOT required at filing (Rule on Legal Separation, A.M. No. 02-11-11-SC).
Pre-trial and trial: The petitioner-OFW may testify via deposition at the Philippine Consulate (Rule 23, Rules of Court) or videoconference (A.M. No. 20-12-01-SC).
The Supreme Court has repeatedly allowed this arrangement (see OCA Circular No. 123-2022 and numerous decided OFW legal separation cases).

Prescription: 5 years from occurrence of the cause (Art. 57, Family Code).

Condonation/Consent/Recrimination bars the action (Art. 56).

IV. Psychological Incapacity as Alternative Ground (Article 36, Family Code)

Repeated, compulsive, or long-term adultery (especially when the erring spouse abandons the family) is increasingly being accepted as evidence of psychological incapacity (Republic v. Molina guidelines relaxed in Tan-Andal v. Andal, G.R. No. 196359, May 11, 2021).

Outcome if granted: Marriage declared void ab initio → parties are single again → can remarry.

Many OFWs now prefer this route because it allows remarriage (unlike legal separation).

V. RA 9262 (Anti-VAWC) as Additional Remedy

Sexual infidelity + any of the following = psychological violence (Sec. 5(i)):

Sending money only to paramour, depriving legitimate family
Publicly flaunting affair on social media
Forcing wife to watch video sex with paramour
Threatening to abandon family permanently

Penalties: Up to 20 years imprisonment + mandatory psychological counseling.

RA 9262 cases can be filed even if the respondent is abroad because the law has extraterritorial application when the victim is in the Philippines (Sec. 44).

VI. Support and Custody During Pendency

The innocent spouse (especially if left in the Philippines with children) can immediately file:

Petition for Provisional Support with urgent ex-parte motion for support pendente lite (very high approval rate).
TPO/PPO under RA 9262 – includes immediate support order and hold-departure order against the guilty spouse.
Habeas Corpus if the guilty spouse took the children abroad without consent.

VII. Practical Evidence-Gathering Tips Accepted by Courts

DNA test results of child born to paramour
Hotel CCTV footage and receipts
Bank transfers labeled “for baby” or “love you”
Facebook Messenger/Viber screenshots showing sexual content or cohabitation plans
Barangay blotter reports of confrontations
Affidavits of neighbors who saw the paramour living in the conjugal home
Pregnancy photos posted publicly

All these have been repeatedly upheld as sufficient evidence in Supreme Court decisions involving OFW spouses.

VIII. Conclusion

When one spouse is abroad, Philippine law provides robust protection to the innocent party:

Criminal prosecution for adultery/concubinage is fully viable via consularized SPA and videoconference testimony
Legal separation is routinely granted to OFWs without requiring their physical presence
Declaration of nullity on ground of psychological incapacity is increasingly successful
RA 9262 provides immediate financial relief and protection orders

The Philippines remains one of the most protective jurisdictions worldwide for betrayed OFW spouses. With proper documentation and competent counsel, success rates in these cases exceed 90% when evidence is strong.

Consult a family law specialist immediately upon discovery — delay can result in condonation or prescription.