Can a Wife File an Adultery Case Against Her Husband?
(Philippine Legal Context)

Under Philippine law, the topics of adultery and concubinage often create confusion as to whether a wife can file an “adultery” case against her husband for marital infidelity. The short answer is no, because the crime of “adultery,” under the Revised Penal Code, specifically applies to a wife’s extra-marital affair, not the husband’s. The law instead provides a different criminal offense—called concubinage—for a husband’s extra-marital relations under certain conditions. Below is a comprehensive discussion of the relevant legal provisions, distinctions, and practical considerations.

1. Legal Framework

1.1. Revised Penal Code (RPC) Provisions

Article 333 – Adultery
This provision defines and penalizes adultery as committed by a married woman who engages in sexual intercourse with a man not her husband, and the man who has carnal knowledge of her, knowing her to be married.
- Essentials to note:
  1. Adultery is committed only by the wife and her paramour.
  2. Both must know that the woman is married.
  3. Every sexual act constitutes a separate count of adultery.
Article 334 – Concubinage
This provision covers concubinage, which is the crime applicable to a husband who has extra-marital relations under certain circumstances, together with the woman involved.
- Essentials to note:
  1. A husband can be held liable if he:
    - Keeps a mistress in the conjugal dwelling;
    - Has sexual intercourse with a woman under scandalous circumstances; or
    - Cohabits with his mistress in any other place.
  2. The wife can file a criminal complaint for concubinage if these elements are present.
  3. Proof of “cohabitation” or “scandalous circumstances” can be more difficult to establish compared to proving adultery.

1.2. Equality Concerns

Many have criticized the distinction between adultery (for the wife) and concubinage (for the husband) as a vestige of older, less gender-equal times. Nevertheless, these provisions remain in effect unless amended by law.

2. Distinction Between Adultery and Concubinage

Who can commit it?
- Adultery: A married woman and her paramour.
- Concubinage: A married man and his mistress.
Elements / Burden of Proof
- Adultery requires proof of a single instance of sexual intercourse. Each act can be a separate criminal charge.
- Concubinage requires proof of a more continuous or scandalous relationship: cohabitation, keeping a mistress in the marital home, or similarly scandalous behavior.
Penalties
- Adultery (Art. 333, RPC): Punished by prisión correccional in its medium and maximum periods (roughly 2 years, 4 months, and 1 day to 6 years).
- Concubinage (Art. 334, RPC): Punished by prisión correccional in its minimum and medium periods (6 months and 1 day to 4 years and 2 months) for the husband, and a lesser penalty (destierro or banishment) for the concubine.
Who may file the case?
- Adultery: The husband must file the complaint against his wife and her paramour.
- Concubinage: The wife must file the complaint against her husband and his mistress.

Key Point: A wife cannot file an “adultery” case against her husband because the law designates “concubinage” as the applicable offense when the husband is unfaithful.

3. Practical Implications and Procedure

3.1. Filing a Criminal Complaint

If a wife believes her husband is committing extramarital acts that fall under concubinage, she may file a complaint-affidavit with the Office of the Prosecutor (or a police station that will refer it to the prosecutor) alleging the acts that satisfy the elements of concubinage. The complaint would be filed against:

The husband (as principal), and
The mistress (as co-accused), if the conditions for concubinage are met.

3.2. Evidence

Proving concubinage can be more challenging than proving adultery because the wife must show evidence of:

Cohabitation in the conjugal dwelling (e.g., the mistress living in the family home), or
Scandalous circumstances (e.g., open displays of affection that shock the community or family, or evidence of a relationship carried on in such a manner that causes public scandal), or
Habitual cohabitation elsewhere (receipts for rent, eyewitness accounts, social media posts, photos, etc.).

Corroborating witnesses, documents such as lease agreements or utilities listing both husband and mistress, and other forms of evidence are often used.

3.3. Defense Considerations

A husband charged with concubinage may raise defenses such as:

Lack of proof of actual cohabitation or scandalous circumstances.
Denial of any permanent dwelling arrangement with the alleged mistress.
Improper motives or insufficient evidence by the complainant-wife.

Because these cases are criminal in nature, the standard of proof is beyond reasonable doubt.

4. Additional Remedies for the Aggrieved Wife

4.1. Civil Aspect

A wife who is aggrieved by her husband’s betrayal may explore civil remedies aside from criminal prosecution. This may include:

Legal Separation or Annulment (Family Code of the Philippines)
- Legal separation allows the spouses to live separately and divide properties but does not dissolve the marriage bond.
- Annulment (or declaration of nullity) may be pursued under specific grounds enumerated by law (e.g., psychological incapacity, fraud, lack of consent). However, infidelity alone is not a direct ground for annulment; it could be part of a pattern supporting a claim of “psychological incapacity” or other recognized grounds.
Protection Orders under the Anti-Violence Against Women and Their Children Act (VAWC, R.A. No. 9262)
- If the husband’s actions constitute psychological or emotional abuse, the wife may seek protection orders.
- This law may provide additional reliefs such as support, custody arrangements, or stay-away orders if the husband’s acts cause emotional distress or harm to the wife or children.

4.2. Settlement and Mediation

Some couples resort to mediation or settlement agreements (property and custody arrangements) rather than pursuing criminal charges, given that criminal prosecutions can be lengthy, emotionally taxing, and financially burdensome.

5. Frequently Asked Questions

Question: Is proof of a single act of intimacy enough to file a charge against a husband?
Answer: A single act of intimacy is enough to prove adultery—but that applies to the wife’s extramarital relations. For the husband’s case, concubinage requires more than a single act; it requires proof of cohabitation, scandalous acts, or a mistress being kept in the conjugal home.
Question: What if the husband repeatedly commits sexual infidelity but does not cohabit with the mistress?
Answer: Repeated instances of sexual relations outside marriage do not automatically constitute concubinage unless they meet any of the specific scenarios under Article 334 (cohabitation, scandalous conduct, or keeping a mistress in the conjugal home). If these elements are absent, the criminal case may fail, though other civil remedies (like legal separation) can be explored.
Question: Can a wife still file a civil action if the criminal complaint is dismissed?
Answer: Yes. The dismissal of a criminal case (e.g., if the elements of concubinage are not proven beyond reasonable doubt) does not necessarily bar a separate civil action for legal separation or other civil remedies under the Family Code.
Question: Is there any move to change these “adultery” or “concubinage” laws?
Answer: Various proposals and discussions about updating or repealing these laws have been made, citing gender biases. However, until the laws are formally amended, the provisions on adultery (Art. 333) and concubinage (Art. 334) remain in force.

6. Key Takeaways

A wife cannot file an “adultery” case against her husband in the Philippines.
If the husband’s extramarital conduct meets the legal elements, the correct criminal case is concubinage.
Concubinage is generally harder to prove because it requires showing cohabitation, scandalous circumstances, or keeping a mistress in the conjugal home.
Successful prosecution of concubinage or adultery depends on satisfying the beyond reasonable doubt standard, meaning substantial evidence is required.
Separate civil remedies exist (e.g., legal separation, possible annulment, or VAWC-based protection orders), which may offer relief even if a criminal case is difficult to prove or is dismissed.

Conclusion

In the Philippine legal context, the answer to whether a wife can file an adultery case against her husband is unequivocally no: by law, adultery is exclusively the offense of a married woman and her paramour. A husband who is unfaithful may instead be held liable for concubinage—provided the specific elements mandated by Article 334 of the Revised Penal Code are proven.

While this distinction can be seen as archaic and has been the subject of much debate, it remains the current legal standard. Wives who suspect or discover marital infidelity should consider both the criminal route (concubinage, if applicable) and civil remedies (legal separation, actions under the Family Code, or R.A. 9262 for abuse) in determining the most appropriate and viable course of action.