Adultery & Annulment in Philippine Law

Why sexual infidelity is not a stand‑alone ground for civil annulment—and what practical remedies are available when a spouse strays.

1. Key Concepts at a Glance

Term	Where Found	Essence	Dissolves Marriage Bond?
Adultery (crime)	Revised Penal Code, Art. 333	Married woman engages in sexual intercourse with a man not her husband; both are liable.	No—it is a criminal prosecution.
Legal Separation	Family Code, Art. 55 (3)	Allows spouses to live apart; community property is dissolved; marriage bond remains.	No
Annulment (voidable marriage)	Family Code, Art. 45	Marriage valid at start but may be annulled for enumerated vices of consent or incapacity.	Yes once decree is final.
Declaration of Absolute Nullity	Family Code, Art. 35, 36, 37, 38	Marriage void from the beginning (e.g., bigamy, psychological incapacity).	Yes—marriage deemed never to have existed.

Bottom line: Adultery is directly a ground only for criminal prosecution and for legal separation.
For annulment or declaration of nullity, adultery is relevant only indirectly—as evidence of some other statutory ground (usually psychological incapacity).

2. Adultery as a Crime (Revised Penal Code, Art. 333)

Who may be charged
- a married woman and her paramour, if intercourse occurred and at least one act took place in the Philippines.
Elements
- (a) Valid subsisting marriage of the woman
- (b) Sexual intercourse with a man not her husband
Penalty
- Prisión correccional (6 months + 1 day to 6 years).
Extinguishment by pardon
- The offended husband may pardon the offenders before institution of the complaint, or he may condone via express pardon (written) after knowledge and before judgment (RPC, Art. 344).
No effect on civil status
- A conviction does not nullify the marriage; it may, however, bolster a subsequent petition for legal separation.

3. Grounds for Annulment under Article 45 (Why Adultery Isn’t One)

Art. 45 Ground	Typical Scenario	Possible Link to Adultery?
Lack of parental consent (18–21 yrs.)	None	None
Mental illness or incapacity (existing at celebration)	Uncontrollable impulse to infidelity may be symptom	Indirect
Fraud (e.g., deceit about chastity, pregnancy by another man)	Concealing ongoing extramarital affair before the wedding	Indirect
Force, intimidation, undue influence	Spouse forced to marry to “legalize” pregnancy	Rare
Impotence (incurable)	Sexual infidelity used to escape conjugal relations	Rare
Sexually transmissible disease (serious, incurable)	Disease acquired from lover	Rare

Take‑away: Adultery after the wedding, standing alone, does not fit into any Art. 45 category. The Supreme Court has consistently ruled that post‑marital acts—no matter how reprehensible—cannot retroactively void valid marital consent.

4. Psychological Incapacity under Article 36

The most common way adultery finds its way into an annulment petition.

Definition (Santos v. CA, 1995; Republic v. Molina, 1997)
- “A psychological (not physical) condition, existing at the time of the celebration, grave, juridically antecedent and incurable, that renders a spouse unable to comply with the essential marital obligations.”
Role of Adultery
- Chronic, compulsive sexual infidelity—especially if rooted in a personality disorder (e.g., narcissistic, antisocial)—has been accepted as manifestation, not the ground itself.
- Key cases:
  - Chi Ming Tsoi v. CA (1997) – repeated infidelity showed inability to observe marital fidelity, bolstering Art. 36 nullity.
  - Te v. Te (2009) – philandering husband found psychologically incapacitated where cheating was symptom of deeply rooted antisocial traits.
Evidence Required
- Expert psychological report (though no longer strictly indispensable after Tan‑Andal v. Andal, 2021)
- Examples/patterns of pre‑marital behavior pointing to antecedence
- Testimony of spouse or third parties describing compulsive unfaithfulness

5. Adultery as Statutory Ground for Legal Separation (Art. 55 (3))

Filing Window – Within five (5) years from discovery of the adultery; otherwise barred.
Consequences
- Decree of separation from bed and board; conjugal or absolute community property is dissolved and divided.
- Guilty spouse loses right to one‑half of net profits from conjugal partnership and may be disqualified from inheriting from innocent spouse (Art. 63).
- Custody of common children under 7 years is maternal—but courts may override if unfit.
Effect on Marriage Bond – The couple remains married; they cannot remarry.

6. “Church Annulment” vs. Civil Annulment

Feature	Catholic Tribunal (Canon Law)	Philippine Civil Courts
Applicable Law	Canon 1095 (incapacity to assume marital obligations)	Family Code Art. 36 (psychological incapacity)
Evidence of Adultery	May indicate grave lack of discretion or incapacity	Same—used as symptom, not ground
Effect of Decree	Ligamen dissolved in church	Must still file civil case for state recognition; otherwise civil marriage subsists

7. Procedural & Evidentiary Notes

Venue – Regional Trial Court (Family Court) of petitioner’s residence or spouse’s residence for civil actions; adultery criminal cases start at the prosecutor’s office where the act occurred.
Parties & Participation
- Annulment/Nullity: Petition versus “Republic of the Philippines” through the Office of the Solicitor General; spouse is indispensable party but the State must also be heard.
- Legal Separation: Same, plus mandatory 6‑month “cooling‑off” period (Art. 58).
Standard of Proof
- Civil cases: Preponderance of evidence.
- Criminal adultery: Beyond reasonable doubt.
Common Types of Evidence
- Hotel records, CCTV, text‑message dumps, photos/videos, private investigator reports, bank statements, social‑media posts, handwritten letters, birth records of illegitimate child.
- Corroboration is vital; declarations of the paramour alone may be treated with suspicion.
Costs & Duration
- Annulment/nullity: anywhere from ₱200,000–₱400,000 in metro areas, 2–4 years average.
- Legal separation: slightly cheaper but still protracted.
- Criminal adultery: filing fees minimal, but prosecution burden is heavy; often settles or is dismissed.

8. Property, Support & Succession After the Fact

Scenario	Property Regime	Right to Spousal Support	Right to Inherit
Annulment granted (Art. 45)	Conjugal/ACP dissolved; equal division unless court varies for equity	Innocent spouse may get support during trial; ends after decree	Inheritance rights extinguished between spouses
Psych. incapacity nullity	Same, but property relations treated as co‑ownership if marriage void	No support once decree final (incapacitated spouse treated as stranger)	No intestate rights between spouses
Legal separation	Conjugal/ACP dissolved	Guilty spouse loses support from innocent spouse	Guilty spouse disqualified from intestate succession (Art. 63)
Still married, no case filed	Property regime continues	Mutual support continues	Normal intestate rights

Illegitimate children born of adultery are entitled to one‑half the legitime of legitimate children (Art. 895 Civil Code).

9. Frequently Asked Questions

“If adultery isn’t a direct ground, why do lawyers say ‘file an annulment’?”
Because in practice, chronic infidelity often reflects an underlying psychological incapacity existing before the wedding.
“Can a husband be criminally liable for adultery?”
No. The equivalent offense for men is concubinage (RPC Art. 334), which is harder to prove (requires keeping a mistress in the conjugal dwelling, or sexual intercourse under scandalous circumstances). Civil consequences, however, are identical.
“Can I remarry after I get a decree of legal separation?”
No. Only a decree of annulment or nullity (or a foreign divorce recognized here) restores your capacity to remarry.
“Will my spouse’s admission of cheating on Facebook suffice?”
It is admissible if properly authenticated (Rules on Electronic Evidence), but courts still prefer corroboration—e.g., hotel receipts or witness testimony.
“Is divorce completely unavailable?”
As of April 20 2025, Congress has yet to enact an absolute divorce law, although several bills have passed the House in prior Congresses. Until a statute is signed, the remedies remain annulment, nullity, legal separation, or—if one spouse is foreign—a foreign divorce subsequently recognized by a Philippine court.

10. Practical Tips & Ethical Reflections

Document early, discreetly, and legally. Spying that violates the Anti‑Wiretapping Act or privacy laws may backfire.
Weigh the remedy. If you primarily need to end the marriage and remarry, focus on annulment/nullity; if you want financial safeguards or are not ready to break the bond, legal separation may be sufficient.
Consider mediation. Even in criminal adultery, settlement may spare children further trauma.
Protect assets immediately. A petition for annulment or legal separation can include a prayer for temporary preservation of property and support (Art. 49, 50).
Seek counsel experienced both in civil and canonical forums if you want parallel church proceedings.

Closing Thought

In Philippine jurisprudence, adultery wounds the marriage but does not dissolve it by itself. The law’s focus is on the deeper defect—psychological incapacity—or on protecting an innocent spouse’s financial and moral interests through legal separation or criminal sanction. Understanding this distinction allows aggrieved spouses to choose the most strategic, humane, and legally sound path forward.

(This article is for general information only and does not constitute legal advice. For case‑specific guidance, consult a Philippine family‑law practitioner.)