Adultery and Concubinage: The Crimes, the Penalties and Your Other Options

Adultery (Art. 333)

Under Article 333 of the Revised Penal Code (RPC), adultery is committed by:

• a married woman who has sexual intercourse with a man who is not her husband; and
• the man who has sexual intercourse with her, knowing that she is married.

It is adultery even if the marriage is later declared void. One act of sexual intercourse is enough, and each act is a separate crime.

Penalty: prision correccional in its medium and maximum periods, which is from 2 years, 4 months and 1 day to 6 years in prison, for both the wife and the man. If the wife acted because her husband abandoned her without good reason, the penalty is one degree lower.

Concubinage (Art. 334)

Under Article 334, a married man commits concubinage only if he does one of these:

1. keeps a mistress in the conjugal dwelling (the family home);
2. has sexual intercourse with a woman who is not his wife under scandalous circumstances (in a way that offends public decency and becomes known in the community); or
3. cohabits (lives together as a couple) with her in any other place.

Penalty: for the husband, prision correccional in its minimum and medium periods, which is from 6 months and 1 day to 4 years and 2 months in prison. The woman, called the concubine in the law, gets destierro: she is not jailed but is banned from going within a distance set by the court from a place it names.

How They Are Different

The law is easier to prove against a wife than a husband, and it punishes her more heavily. Many people consider this unfair, and bills to change it have been filed in Congress, but as of this writing Articles 333 and 334 still apply as written.

Who Can File, and What Stops a Case (Art. 344)

Adultery and concubinage are "private crimes". Under Article 344 of the RPC:

• Only the offended spouse can start the case by filing a complaint. Parents, children, the police or the barangay cannot file it for them.
• The complaint must include both guilty parties if both are alive. You cannot charge only your spouse, or only the other person.
• The case cannot be filed if the offended spouse consented to the affair or pardoned the offenders. A pardon can be written or shown by conduct, and must cover both offenders. It must come before the case is filed.

The complaint is a sworn complaint-affidavit with evidence, filed with the Office of the City or Provincial Prosecutor where the act happened. See filing a criminal complaint. Proving sexual intercourse or cohabitation can be hard; photos, messages, witnesses, records of where the two lived, and birth records of a child may be used, but evidence must be gathered lawfully. Secretly recording private conversations, for example, can itself be against the law.

Other Options: Legal Separation and RA 9262

Legal separation. Sexual infidelity is a ground for legal separation under Article 55 of the Family Code. It lets you live apart and divide the property, and the spouse at fault loses certain rights, but you stay married. The case must be filed within five years from the cause (Art. 57), and it is denied if you condoned (forgave), consented to or connived in the infidelity (Art. 56). See annulment vs legal separation. Infidelity on its own is not a ground for annulment or nullity.

Psychological violence under RA 9262. The Anti-Violence Against Women and Their Children Act (Republic Act No. 9262, or RA 9262) punishes causing a woman or her child mental or emotional anguish, public ridicule or humiliation (Section 5(i)). The Philippine Commission on Women says a husband's cheating may be a ground for a case for psychological violence. This remedy is only for a woman (or her child) against a husband or partner, and you must show the anguish it caused, for example through your testimony and that of people around you. The penalty is prision mayor and a fine of ₱100,000 to ₱300,000, plus mandatory psychological counseling or psychiatric treatment. Unlike adultery and concubinage, it is not limited to the offended spouse filing and it does not need the other woman to be charged. See VAWC cases and Protection Orders.

Support and custody. Whatever you decide, the children still have a right to support from both parents. See child support.

Where to Get Help

• Public Attorney's Office (PAO), for free legal help if you qualify.
• IBP legal aid offices of the Integrated Bar of the Philippines chapter in your province.
• The Women and Children Protection Desk at the police station, the barangay VAW desk and the city or municipal social welfare office, for women facing abuse.
• If you are in danger, call 911.

Adultery and concubinage carry prison terms longer than one year, so they do not go through barangay settlement talks first.