Penalties for Adultery and Concubinage in the Philippines
(A comprehensive legal article based exclusively on the Revised Penal Code, jurisprudence, and prevailing doctrine)
1. Statutory Foundations
| Crime | Revised Penal Code Article | Core Act Punished | Principal Persons Liable | Penalty Prescribed (principal) |
|---|---|---|---|---|
| Adultery | Art. 333 | (a) A married woman engaging in sexual intercourse with a man not her husband; (b) That man, if he knew she was married. | The married woman and her paramour (whether single or married). | Prisión correccional medium & maximum periods (2 y 4 m 1 d – 6 y) for both offenders. |
| Concubinage | Art. 334 | A married man who, without justifiable cause, either: 1️⃣ Keeps a mistress in the conjugal dwelling; OR 2️⃣ Cohabits with her in any other place; OR 3️⃣ Has sexual intercourse with her “under scandalous circumstances.” |
The married man (principal) and his concubine (accomplice). | For the husband: Prisión correccional minimum & medium (6 m 1 d – 4 y 2 m). For the concubine: Destierro (banishment) — she must stay >25 km away from the conjugal home or offended spouse for the term set by the court, usually 6 m 1 d – 6 y. |
Key observation: adultery punishes both parties equally and more severely than the husband in concubinage; concubinage imposes no imprisonment on the mistress, only banishment.
2. Essential Elements
| Element | Adultery | Concubinage |
|---|---|---|
| 1. Existing Valid Marriage | Woman must be validly married when the act occurs. | Same requirement for the husband. |
| 2. Sexual Act | At least one actual instance of sexual intercourse (proof may be circumstantial). | • Sexual intercourse and any of the three aggravating loci/scenarios above. • Proof may also be circumstantial, but “keeping” or “cohabitation” requires habituality or permanence. |
| 3. Knowledge/Intent | Paramour must know of the woman’s marriage. | Mistress’s knowledge is immaterial to husband’s liability; but her liability (destierro) still attaches if concubinage is committed. |
| 4. Initiation by Offended Spouse | Private offense: case can only begin on the sworn complaint of the offended spouse (the husband). | Also a private offense: only the wife may file. Both offenders must be included if alive. |
| 5. Absence of Pardon or Consent | Prior express or implied pardon/condonation bars prosecution; cohabitation after knowledge constitutes implied pardon. | Same doctrine applies. |
3. Specific Penalties & Their Incidents
Prisión correccional (minimum: 6 m 1 d – 2 y 4 m // medium: 2 y 4 m 1 d – 4 y 2 m // maximum: 4 y 2 m 1 d – 6 y)
- Accessory penalties (Art. 43) automatically attach: (a) suspension from public office and the right to vote or be elected, (b) suspension from the practice of profession.
- May be served in a provincial jail.
- Eligibility for probation depends on the imposable term actually adjudged (≤6 y) and lack of disqualifying circumstances.
Destierro
- A non-custodial penalty (Art. 87) — temporary banishment to a place outside a radius (usually 25 km) fixed by the court.
- Violation of the ban is evasion of service of sentence (Art. 157).
- Unlike imprisonment, destierro allows the offender to work and live freely outside the prohibited zone.
4. Procedural Nuances
| Topic | Rule |
|---|---|
| Venue | Where any single act of intercourse, cohabitation, or keeping occurred. |
| Prescription | Crime prescribes in 5 years from discovery (Art. 90(4)). |
| Initiatory Complaint | Must be sworn before a prosecutor or judge and must include both accused (People v. Greñas). |
| Death, pardon, or reconciliation | • Death of offended spouse before filing = bars action; after filing but before judgment = does not bar (People v. Pascual). • Express pardon or proven implied pardon (voluntary cohabitation after discovery) is a bar. |
| Marriage of Offenders | Subsequent marriage of guilty parties does not extinguish liability (distinguish from Arts. 344-345 on seduction/abduction/acts of lasciviousness). |
| Civil Actions | Offended spouse may sue for moral damages under Art. 33, Civil Code. |
5. Illustrative Jurisprudence
| Case | G.R. / Citation | Doctrine |
|---|---|---|
| People v. Zapanta (1946) | 77 Phil. 38 | Repeated intercourse unnecessary in adultery; one act suffices. |
| People v. Quero (1948) | 81 Phil. 400 | Circumstantial evidence (letters, visits at night) may establish adulterous intercourse. |
| People v. Aquilizan (1967) | 19 SCRA 125 | “Keeping” a mistress in the conjugal dwelling includes a mistress regularly staying there, even if wife is absent. |
| Feria v. People (2007) | G.R. 164497 | For concubinage, scandalous circumstances are judged by social norms and visibility to the community. |
| Tulagan v. Peña (2021) | A.M. P-21-42-SC | Judicial standard: mere rumor or photograph insufficient; Courts require corroborated acts showing scandal, cohabitation or keeping. |
6. Comparative Perspective & Gender Critique
Gender Asymmetry
- Adultery criminalizes the wife’s infidelity per se; concubinage requires additional aggravating circumstances for the husband.
- Penalty for the wife (and her lover) can reach 6 years’ imprisonment, whereas the husband may get ≤4 years 2 months and the mistress no jail time.
Historical Rationale
- The 1930 RPC inherited Spanish colonial notions of protecting bloodlines and “honor.”
- Persistent critiques frame the provisions as sex-discriminatory and violative of constitutional gender equality (Art. II §14 & Art. XIII §14, 1987 Constitution).
Modern Reform Efforts
- Bills filed in multiple Congresses seek decriminalization or at least equalization of penalties (e.g., H.B. 78, 19th Congress).
- The Philippine Commission on Women and many legal scholars back repeal, arguing civil remedies suffice.
Status as of 19 June 2025: Articles 333–334 remain in force. No amendatory law has yet been enacted despite committee hearings.
7. Common Defenses & Mitigating Factors
| Defense | Notes |
|---|---|
| Lack of Valid Marriage | Nullity or annulment effective before the alleged act negates the element. (A decree of nullity after the act does not retroactively absolve.) |
| Ignorance of Marriage (paramour) | In adultery, if the man reasonably believed the woman was single, he is not liable; but she still is. |
| Pardon/Condonation | An express deed or implied cohabitation after discovery. Conditional pardon must be alleged and proved. |
| Impossible Crime / Attempt | There is no frustrated or attempted adultery/concubinage; intercourse or qualifying circumstances must be consummated. |
| Mistake of Identity | Especially where proof is circumstantial, raising reasonable doubt as to the paramour’s identity may acquit. |
8. Ancillary Civil & Family-Law Consequences
- Civil Code Art. 55 (legal separation) – Adultery or concubinage is a ground; upon decree, the offending spouse loses rights over the community or conjugal property and may be disqualified from intestate succession.
- Support & Custody – Guilty spouse retains parental authority unless unfit; but the innocent spouse may invoke moral fitness in custody battles.
- Succession – For concubinage, husband’s acts may constitute disinheritance under Art. 919 (3).
- Psychological Violence – Separate liability may arise under RA 9262 (VAWC) if the extramarital affair causes mental/emotional anguish to the wife or her children.
9. Sentencing & Post-Conviction
- Indeterminate Sentence Law (ISL) applies if the penalty exceeds one year: court must impose a range, e.g., 2 years 4 months (minimum) to 4 years 2 months (maximum).
- Probation is available when the maximum imposable term ≤6 years and the convict has not previously been on probation or sentenced to serve ≥6 years.
- Parole & Good Conduct Time Allowance (GCTA) may shorten actual service if the convict is finally committed to the Bureau of Corrections (sentence >3 years).
- Civil Damages – The trial court may separately award the offended spouse moral damages; otherwise a distinct civil action may be filed.
10. Policy Considerations & Outlook
The criminal status of adultery and concubinage reflects an ongoing tension between traditional concepts of marital fidelity and contemporary views on individual autonomy and gender equality.
- Religious & conservative groups argue retention promotes family stability.
- Human-rights advocates point out that only two countries in Southeast Asia (Philippines & Indonesia) still jail spouses for consensual extramarital sex.
- The Supreme Court, while acknowledging gender asymmetry, has consistently deferred to Congress for reform (see Feria dictum).
Likelihood of Reform (Short-Term): Moderate — With growing bipartisan support for gender-neutral legislation, a consolidated bill equalizing or decriminalizing adultery/concubinage could pass in the next Congress, but political will remains uncertain.
Conclusion
Adultery and concubinage under Articles 333 and 334 of the Revised Penal Code remain active criminal offenses in the Philippines, carrying penalties that differ markedly in severity and scope depending on the spouse’s gender. Understanding their elements, penalties, procedural requirements, defenses, and civil effects is vital for practitioners and laypersons alike. Until Congress acts to amend or repeal these provisions, they continue to shape marital litigation, criminal prosecutions, and debates on gender justice well into 2025.