Adultery and Concubinage: What Must Be Proved and the Penalties

Article 333 says adultery is committed by a married woman who has sexual intercourse with a man who is not her husband, and by the man who has carnal knowledge of her knowing she is married, "even if the marriage be subsequently declared void". So the prosecution has to show:

• the woman was married;
• she had sexual intercourse with a man who is not her husband; and
• for the man, that he knew she was married.

Direct proof of the act is not always needed. In Valencia v. People (2024), the Supreme 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." In that case, the marriage was proved by the marriage contract, and the man's knowledge was shown by his own affidavit. The Court convicted him of adultery.

Article 334 covers a husband who does one of three things:

1. keeps a mistress in the conjugal dwelling;
2. has sexual intercourse, under scandalous circumstances, with a woman who is not his wife; or
3. cohabits with her in any other place.

The woman is liable too if she knew the man was married. In Singgit v. People (2023), the Supreme Court listed these elements and explained the third way. 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 this third way, the Court said, it does not matter whether the place is a private or conjugal dwelling, and scandalous circumstances need not be shown.

So proof of an affair alone may not be enough for concubinage. One of the three ways has to be proven.

The second paragraph of Article 334 is short:

The ranges come from Articles 27 and 76. Under Article 87, a person sentenced to destierro may not enter the place or places named in the sentence, nor come within the radius the sentence sets. Neither article sets a fine.

For the two crimes side by side, see adultery vs concubinage.

These crimes are not prosecuted like most others. 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 same rule says the offended party cannot start the case without including both guilty parties if both are alive, nor if the offended party consented to the offense or pardoned the offenders.

The Supreme Court applied this rule in two cases:

• Both must be included. 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 instead of dismissing it.
• Pardon before filing, for both. 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".
• Believing it stopped is not pardon. In Busuego, the wife had said she believed her husband had stopped womanizing. The Court held this was not condonation of the specific acts charged.

It can. In XXX v. People (2024), the Supreme Court, sitting En Banc, said that "the law itself includes marital infidelity as one of the forms of psychological violence" under Republic Act No. 9262, Section 5(i). In that case, the husband's infidelity caused mental and emotional anguish to his wife, and he was convicted under that law. A VAWC case is separate from a concubinage case and has its own rules. See how to file a VAWC case.

Yes, that is a separate civil case. Sexual infidelity is one of the grounds for legal separation under Article 55 of the Family Code. See grounds for legal separation. Marrying another person while the first marriage still exists is a different crime: see bigamy.

Adultery and concubinage carry correctional penalties. Under Article 90, crimes punishable by a correctional penalty prescribe in ten years, except those punishable by arresto mayor, which prescribe in five years. See prescription of crimes for when the period starts to run.

These are made-up examples to show how the rules work. They are not advice for any real case.

Ana learns that her husband, Ben, has lived with another woman in another town for several months. Living together "for some period of time" in any other place is one of the three ways of concubinage under Singgit. If Ana files, the complaint must name both Ben and the woman, if the woman knew Ben was married.

Jose, an OFW, finds messages and hotel records showing that his wife, Liza, spent nights with Mark, who knew she was married. Under Valencia, intercourse may be proved by circumstantial evidence. A complaint by Jose would have to include both Liza and Mark.

Rosa tells her husband and his partner in writing, before any case is filed, that she forgives them both. Under the rule explained in Alonte, a pardon of both offenders before filing bars the case. Whether a real pardon was given is for the prosecutor and the court to decide.

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 a legal separation, annulment or VAWC case, and what evidence is needed. If you cannot afford one, see Free legal help in the Philippines for the Public Attorney's Office (PAO) and other options.