Adultery vs Concubinage: Why the Rules Differ
Quick answer
Adultery and concubinage are both crimes of marital infidelity under the Revised Penal Code, but the law treats them differently. Adultery is committed by a married woman who has sexual intercourse with a man not her husband, and by the man who knows she is married. Concubinage is committed by a married man only in one of three ways, so it needs more than proof of an affair. Adultery also carries the heavier penalty. In both, only the offended spouse can file the complaint, and it must include both offenders.
| Aspect | Adultery | Concubinage | Legal basis |
|---|---|---|---|
| Who commits it | A married woman, and the man who has carnal knowledge of her knowing she is married (Art. 333). | A married man, and the woman who knows he is married (Art. 334; Singgit v. People, 2023). | Article 333, Revised Penal Code, Article 334, Revised Penal Code |
| What must be proved | Sexual intercourse with a man who is not her husband. | One of three acts: keeping a mistress in the conjugal dwelling; sexual intercourse under scandalous circumstances with a woman not his wife; or cohabiting with her in any other place. | Article 333, Revised Penal Code, Article 334, Revised Penal Code |
| How the Court has read the proof | The intercourse may be established by circumstantial evidence (Valencia v. People, 2024). | To cohabit means to dwell together as husband and wife for some period of time, not occasional meetings (Singgit v. People, 2023). | |
| If the marriage is later declared void | Art. 333 says the crime is committed "even if the marriage be subsequently declared void". | Art. 334 does not contain these words. | Article 333, Revised Penal Code |
| Penalty of the married spouse | Prision correccional in its medium and maximum periods: 2 years, 4 months and 1 day to 6 years. | Prision correccional in its minimum and medium periods: 6 months and 1 day to 4 years and 2 months. | Article 333, Revised Penal Code, Article 334, Revised Penal Code |
| Penalty of the partner | The same penalty as the wife. | Destierro: the woman may not enter the places named in the sentence (Arts. 87, 334). | Article 334, Revised Penal Code |
| Spouse abandoned without justification | The guilty spouse gets the penalty next lower in degree (Art. 333, third paragraph). | Art. 334 has no such rule. | Article 333, Revised Penal Code |
| Who files and how | Only the offended spouse, against both offenders if both are alive; not if the offended spouse consented or pardoned them (Rule 110, Sec. 5). | Same rule (Rule 110, Sec. 5). | |
| Deadline to file (prescription) | Ten years: crimes punished by a correctional penalty (Art. 90). | Ten years: crimes punished by a correctional penalty (Art. 90). | Article 90, Revised Penal Code |
What do the two articles say?
Article 333 defines adultery by one act, sexual intercourse:
Adultery shall be punished by prision correccional in its medium and maximum periods.
The first paragraph of the article makes the married woman and the man who has carnal knowledge of her, knowing her to be married, both guilty, "even if the marriage be subsequently declared void".
Article 334 does not punish every affair of a husband. It lists three acts: keeping a mistress in the conjugal dwelling, having sexual intercourse with a woman not his wife "under scandalous circumstances", or cohabiting with her in any other place. Its second paragraph sets a different penalty for the woman:
The concubine shall suffer the penalty of destierro.
Why is concubinage harder to prove?
Because the article asks for more than intercourse. In Singgit v. People (2023), the Supreme Court listed the elements of concubinage: the man is married; he did one of the three acts; and the woman knew he was married. It said that "the term 'cohabit' means to dwell together, in the manner of husband and wife, for some period of time, as distinguished from occasional, transient interviews for unlawful intercourse." For the third act, it does not matter whether the place is a private or conjugal dwelling, and scandalous circumstances need not be shown.
For adultery, the act itself is the crime. In Valencia v. People (2024), the Court said that "proof of the sexual intercourse between a married woman and a man who is not her husband may be established by circumstantial evidence."
Why are the penalties different?
The articles simply set different penalties. For adultery, the wife and the man both face prision correccional in its medium and maximum periods, 2 years, 4 months and 1 day to 6 years. If the wife committed it while abandoned without justification by her husband, the penalty is one degree lower.
For concubinage, the husband faces prision correccional in its minimum and medium periods, 6 months and 1 day to 4 years and 2 months, and the woman faces destierro: under Article 87, she may not enter the places named in the sentence, nor come within the radius the sentence sets. The ranges come from Articles 27 and 76.
Are the rules on filing the same?
Yes. Rule 110, Section 5 of the Rules of Criminal Procedure says adultery and concubinage "shall not be prosecuted except upon a complaint filed by the offended spouse." The offended spouse cannot start the case without including both guilty parties if both are alive, nor after consenting to the offense or pardoning the offenders.
- In Busuego v. Office of the Ombudsman (2013), a concubinage case, the Court upheld an order to include the two women named in the wife's complaint.
- In Alonte v. Savellano (1998), the Court quoted an older ruling: the pardon "must come before the institution of the criminal prosecution and must be for both offenders to be effective".
The full rules, with more examples, are in Adultery and concubinage: what must be proved and the penalties.
What other cases can the offended spouse file?
The criminal case is not the only remedy. Sexual infidelity is a ground for legal separation under Article 55 of the Family Code: see Grounds for legal separation. In XXX v. People (2024), the Supreme Court said that "the law itself includes marital infidelity as one of the forms of psychological violence" under Republic Act No. 9262: see How to file a VAWC case. Marrying again while the first marriage exists is a different crime: see Bigamy in the Philippines.
How does this work in real life?
These are made-up examples to show how the rules work. They are not advice for any real case.
Liza, a married woman, spends nights with Mark, who knows she is married. Her husband, Jose, finds messages and hotel records. Adultery needs proof of intercourse, and under Valencia this may come from circumstantial evidence. A complaint by Jose would have to name both Liza and Mark.
Ben, a married man, has an affair with a co-worker. They meet now and then at a hotel, but they do not live together, and nothing was done under scandalous circumstances. Without one of the three acts of Article 334, the facts may not amount to concubinage, even if the affair is proven.
Ana's husband moves to another town and lives there with another woman for several months. Living together as husband and wife for some period of time is cohabiting "in any other place", one of the three acts of concubinage under Singgit.
When do you need a lawyer?
Talk to a lawyer before filing, because the complaint must come from the offended spouse, must include both parties, and can be barred by an earlier pardon. A lawyer can also explain how a criminal case relates to legal separation, annulment or a VAWC case. If you cannot afford one, see Free legal help in the Philippines for the Public Attorney's Office (PAO) and other options.
Which provisions does this answer rest on?
Frequently asked questions
What is the difference between adultery and concubinage?
Adultery is committed by a married woman who has sexual intercourse with a man not her husband, and by the man who knows she is married. Concubinage is committed by a married man only in one of three ways: keeping a mistress in the conjugal dwelling, intercourse under scandalous circumstances, or cohabiting with her in any other place.
Why is concubinage harder to prove than adultery?
For adultery, Article 333 needs proof of sexual intercourse. For concubinage, Article 334 needs proof of one of three specific acts, so an affair alone may not be enough. In Singgit v. People (2023), the Supreme Court read cohabiting as living together as husband and wife for some period of time.
Which crime has the heavier penalty?
Adultery. The wife and the man face prision correccional in its medium and maximum periods, up to 6 years. In concubinage, the husband faces prision correccional in its minimum and medium periods, up to 4 years and 2 months, and the woman faces destierro.
Can I file a case against my spouse's partner only?
No. Under Rule 110, Section 5 of the Rules of Criminal Procedure, the offended spouse cannot start the case without including both guilty parties if both are alive. The Supreme Court applied this in Busuego v. Office of the Ombudsman (2013).
Does forgiving my spouse stop the case?
Consent or pardon given before the case is filed bars it under Rule 110, Section 5, and the pardon must cover both offenders, as explained in Alonte v. Savellano (1998). Whether there was a real pardon is decided on the evidence.
Are adultery and concubinage the only remedies?
No. Sexual infidelity is also a ground for legal separation under Article 55 of the Family Code. In XXX v. People (2024), the Supreme Court held that marital infidelity can be psychological violence under Republic Act No. 9262, a separate case with its own rules.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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