Filing an Adultery Charge Against a Husband Under Philippine Law: A Comprehensive Discussion

In the Philippines, crimes involving marital infidelity are principally governed by the Revised Penal Code (RPC). However, Philippine law draws a clear distinction between the crime of “adultery” (committed by a married woman and her male partner under Article 333 of the RPC) and the crime of “concubinage” (committed by a married man under Article 334 of the RPC). Because of these distinctions, individuals often find it confusing whether they can file an “adultery” charge against a husband. Below is a detailed overview of how Philippine law deals with marital infidelity, the differences between adultery and concubinage, and what is involved in filing criminal charges.

1. Distinguishing “Adultery” from “Concubinage”

Adultery (Article 333 of the Revised Penal Code)
- Adultery is committed by a married woman who engages in sexual intercourse with a man who is not her husband.
- Both the married woman and her “paramour” (the man involved) can be charged with adultery as co-accused.
- Each act of sexual intercourse constitutes a separate count of adultery.
- The essential element is proof of actual sexual intercourse between the married woman and her partner.
Concubinage (Article 334 of the Revised Penal Code)
- Concubinage is committed by a married man who:
  1. Keeps a mistress in the conjugal dwelling;
  2. Has sexual intercourse with a woman who is not his wife under scandalous circumstances; or
  3. Cohabits with her in any other place (i.e., sets up house with a mistress).
- The penalty for concubinage is generally lower than the penalty for adultery, a difference often noted as controversial.
- The offended wife (the lawful wife) may file the complaint for concubinage against both the husband and his mistress.

The critical point: if a married man simply has extra-marital affairs, that alone does not automatically equate to adultery under Philippine law. The typical criminal charge for a husband’s infidelity is concubinage, not adultery, unless the husband is having an affair with a married woman—and in that situation, the husband becomes the “paramour” in an adultery case filed by the other woman’s spouse.

2. Can You File “Adultery” Against Your Husband?

Because Philippine law’s definition of adultery (Article 333) specifically targets a married woman who has sexual relations with a man who is not her husband, you cannot ordinarily charge a husband with “adultery” if you are his wife. Instead:

If the husband is having an affair, the crime you would typically consider is concubinage (Article 334), not adultery.
If the husband is involved with a married woman, that married woman’s spouse could file adultery charges (with your husband as the co-accused “paramour”). In that scenario, your husband could be prosecuted for adultery—but it would be the married woman’s legal husband who files the complaint, not you.

Hence, the title “Filing Adultery Charge Against Husband” can be misleading under Philippine law. In most cases, the correct legal route for a wife seeking to hold her husband criminally liable for an extramarital relationship is to explore a concubinage case.

3. Understanding the Crime of Concubinage More Deeply

3.1. Elements of Concubinage

For a wife to successfully file a criminal complaint of concubinage against her husband, the following must generally be established:

The husband is legally married to the complaining wife.
The husband commits any of the following acts:
- Keeps a mistress in the conjugal home;
- Has sexual intercourse under scandalous circumstances with a woman who is not his wife; or
- Cohabits with that woman in any other place (i.e., a separate dwelling).
The illicit relationship or circumstances are proven by sufficient evidence.

3.2. Difficulty of Proof

In practice, proving concubinage can be challenging, as it requires more than just evidence of infidelity. Merely having an affair outside marriage does not necessarily constitute concubinage unless the relationship fits the circumstances explicitly listed in Article 334. For example, you might need:

Photographs or testimonies showing that the woman is living in the conjugal home;
Evidence that the husband and his mistress are living together in a separate residence;
Proof of open, scandalous public conduct indicating an affair (e.g., multiple witnesses attesting to them regularly staying in one house, introducing each other as spouses, etc.).

Because of these evidentiary requirements, many wives find it harder to prosecute their husbands for concubinage compared to how husbands may prove adultery (since “adultery” hinges on direct proof of sexual intercourse between the wife and another man).

4. The Process of Filing a Criminal Case

4.1. Where and How to File

Sworn Complaint
- A criminal complaint for adultery or concubinage starts with a sworn complaint executed by the offended spouse (the legally married individual who has been wronged).
- This complaint is typically filed with the Office of the City or Provincial Prosecutor with jurisdiction over where the crime was committed or where one of the essential elements of the crime occurred.
Prosecutor’s Investigation
- The Prosecutor’s Office conducts a preliminary investigation to determine if there is “probable cause” to proceed with the charges.
- Both parties (the complainant and the respondents) may be asked to submit evidence or affidavits.
Filing in Court
- If the prosecutor finds probable cause, an Information (a formal charge) is filed in the appropriate Regional Trial Court.
- The case then proceeds to arraignment, pre-trial, and trial unless settled or otherwise resolved.

4.2. Requirement of “No Separation”

Under Articles 344 of the Revised Penal Code, there is a requirement that the offended party in adultery or concubinage must not have consented to or pardoned the offense—and must not have filed for legal separation or obtained a divorce decree (in jurisdictions outside the Philippines). Once a legal separation based on the same grounds has been decreed or once the offended party consents to the continued cohabitation, a criminal charge may be extinguished.

5. Defenses and Other Relevant Points

Mutual Guilt and Pardon
- If both spouses committed marital infidelity, there might be grounds for “mutual guilt.” The law also allows for an implied pardon if the spouses voluntarily cohabited again after learning of the infidelity.
- The offended spouse’s subsequent forgiveness (express or implied) could prevent or extinguish a criminal case.
Prescriptive Period
- Under Philippine law, crimes of adultery and concubinage have prescriptive periods. Generally, the offended party has a limited number of years from the date of the commission (or date of discovery) of the offense to file charges.
Civil Aspects
- Apart from criminal prosecution, a spouse may also consider filing for legal separation or annulment (if grounds exist). A civil action could address matters like property distribution and child custody. However, annulment and legal separation have distinct grounds and legal processes separate from the criminal actions of adultery or concubinage.
Penalties
- Adultery is punishable by prisión correccional in its medium and maximum periods (2 years, 4 months, and 1 day up to 6 years).
- Concubinage is punishable by prisión correccional in its minimum period (6 months and 1 day to 2 years and 4 months) for the husband, and destierro (exile) for the concubine.

Because of these discrepancies, wives sometimes find the penalty for concubinage comparatively lighter. This disparity has been a point of legal debate in the Philippines, with many advocating reforms to align the penalties.

6. Practical Tips for Wives Considering Legal Action

Consult a Lawyer
- Because of the complexity in proving concubinage and the strict processes around filing criminal complaints, obtaining professional legal advice is crucial. A lawyer can help assess if the husband’s actions meet the elements of concubinage or if there are other legal remedies.
Gather Evidence
- Documentary and testimonial evidence is key. If you suspect your husband is cohabiting with another woman or keeping a mistress in the conjugal home, gather proof (photos, documents, statements from neighbors or friends, etc.).
Understand Possible Outcomes
- Weigh the emotional, financial, and social cost of a criminal proceeding. Criminal cases can be lengthy and emotionally taxing.
- Explore whether a private settlement, legal separation, or mediation might be a more suitable path, depending on your goals.
Act Promptly
- Remember prescriptive periods. If you wait too long or continue living with your husband as if nothing is wrong, you could be seen to have pardoned or condoned the offense.

7. Conclusion

While the title “Filing Adultery Charge Against Husband” might suggest that a wife could directly charge her husband with adultery, the correct criminal offense for a husband’s infidelity under Philippine law is often “concubinage.” “Adultery,” as defined by Article 333 of the Revised Penal Code, specifically applies when a married woman has sexual relations outside marriage. Thus, if a husband is discovered having extramarital affairs, a wife considering criminal prosecution would generally pursue concubinage charges, provided all legal elements are met (such as cohabitation, scandalous circumstances, or having a mistress in the conjugal dwelling).

Given the legal complexity, the best first step is always to seek professional legal advice and carefully weigh all options—both civil and criminal. The emotional stakes and evidentiary requirements for these criminal actions are high, so informed decision-making is paramount. Ultimately, while the law provides avenues to seek redress, the intricate rules, evidence thresholds, and social implications often make the process challenging.