Filing Adultery or Concubinage Case for Spousal Infidelity with Child

Disclaimer: The information provided here is for general informational and educational purposes only and is not intended as legal advice. Laws and their interpretation can change over time. For specific guidance regarding your unique circumstances, always consult a qualified attorney licensed to practice law in the Philippines.

1. Introduction

In the Philippines, a spouse’s act of infidelity can be prosecuted criminally under the Revised Penal Code (RPC) as either Adultery (Article 333) or Concubinage (Article 334). Which crime applies depends on whether the offending spouse is the wife or the husband. These laws stem from a traditional understanding of marital fidelity and aim to penalize certain kinds of extramarital relations. This article provides an overview of the definitions, elements, penalties, and procedural considerations for pursuing a criminal complaint of adultery or concubinage, especially in situations where the extramarital affair results in a child.

2. Relevant Legal Provisions

2.1. Adultery (Article 333 of the Revised Penal Code)

  • Definition: 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 that she is married.

  • Elements:

    1. The woman is married.
    2. She has sexual intercourse with a man who is not her husband.
    3. The man knows at the time of the intercourse that she is married.

  • Penalty: The penalty for adultery is prisión correccional in its medium and maximum periods (i.e., from two years, four months, and one day, up to six years). Both the wife and her paramour are punished equally.

2.2. Concubinage (Article 334 of the Revised Penal Code)

  • Definition: Concubinage is committed by a husband who:

    1. Keeps a mistress in the conjugal dwelling; or
    2. Has sexual intercourse under scandalous circumstances with a woman not his wife; or
    3. Cohabits with her in any other place.

  • Elements:

    1. The man is legally married.
    2. He commits one of the specific acts (keeping a mistress in the conjugal home, scandalous sexual relations, or cohabiting in another place).
    3. The woman he is involved with is not his wife.

  • Penalty:

    • For the husband: prisión correccional in its minimum and medium periods (i.e., from six months and one day, up to four years and two months).
    • For the concubine: destierro (banishment), which means being prohibited from residing within a certain radius of the offended party’s residence.

3. Spousal Infidelity Resulting in a Child

The birth of a child by the offending spouse (wife or husband) does not by itself create a separate criminal offense under Philippine law, but it can have evidentiary significance in proving adultery or concubinage. For example:

  1. Proof of Sexual Relations: The existence of a child may be used to show that the offending spouse had sexual intercourse with someone outside the marriage. This can support the element of “carnal knowledge” required in adultery.
  2. Cohabitation: If the husband is publicly cohabiting with another woman and they have a child, it may be easier to prove “scandalous circumstances” or that he “cohabits with her in another place,” both of which fall under concubinage.

However, the mere existence of a child does not automatically prove adultery or concubinage. Other pieces of evidence (e.g., witnesses, documentary proof, photographs, admission) are typically required to establish the elements of these offenses beyond reasonable doubt.

4. Who Can File the Complaint

Under Philippine law, adultery and concubinage are private crimes. This means:

  • Only the offended spouse can initiate or file the criminal complaint.
  • No other party (e.g., relatives, friends, or even the government prosecutor) can prosecute these crimes unless the offended spouse does so.
  • If the offended spouse dies or forgives (expressly or impliedly) the offending spouse and partner, the action can no longer proceed.

5. Process of Filing a Criminal Case

  1. Gather Evidence:

    • Documentary proof (e.g., messages, photos, hotel receipts).
    • Witness statements.
    • Proof of the child’s birth (e.g., birth certificate, though alone it is not conclusive of adultery or concubinage).

  2. Consult a Lawyer:

    • Seek advice from a private lawyer or Public Attorney’s Office (PAO) lawyer.
    • Confirm whether the available evidence is sufficient.

  3. Sworn Statement (Affidavit of Complaint):

    • The offended spouse must execute a sworn affidavit detailing the facts that constitute adultery or concubinage.
    • Submit supporting documentary and testimonial evidence.

  4. Filing with the Prosecutor’s Office:

    • The prosecutor will conduct a preliminary investigation to determine if there is probable cause.
    • If the prosecutor finds probable cause, an information (formal charge) will be filed in court.

  5. Criminal Trial:

    • The case proceeds to trial before the Regional Trial Court (for adultery or concubinage).
    • The prosecution must prove the guilt of the accused beyond reasonable doubt.
    • If found guilty, the court will impose the penalty under the Revised Penal Code.

6. Defenses and Issues

  1. Insufficiency of Evidence: The accused may argue that the prosecution has not met the burden of proving sexual intercourse (adultery) or the specific acts (concubinage) beyond reasonable doubt.
  2. Nullity of Marriage: If the marriage itself is null or void from the beginning, this can be a defense to adultery or concubinage. However, one must note that as long as the marriage is legally recognized, these crimes can be charged.
  3. Prescription of the Crime:
    • Adultery and concubinage prescribe in five years. After five years from the commission (or from the date the offended spouse learned of the offense), the offended spouse can no longer file the case.
  4. Condonation or Forgiveness: The offended spouse’s express or implied forgiveness of the offending spouse bars criminal prosecution. Condonation might be implied if the couple resumes marital relations under circumstances indicating forgiveness or acceptance of the act.

7. Penalties and Effects

  • Adultery:

    • Both the wife and her paramour can be sentenced to prisión correccional in its medium and maximum periods (two years, four months, and one day up to six years).
    • Imprisonment is typically served in a national penitentiary or a facility designated for correctional penalties.

  • Concubinage:

    • The husband can be sentenced to prisión correccional in its minimum and medium periods (six months and one day up to four years and two months).
    • The concubine is sentenced to destierro (exile or banishment), which prohibits her from residing within a certain distance of the offended spouse.

8. Civil Aspects

Even if adultery or concubinage is proven, the offended spouse could:

  • File for Civil Damages: The offended spouse may claim moral, nominal, or other damages arising from the wrongful acts of the offending spouse and the third party.
  • Seek Separation of Property or Annulment: Criminal proceedings for adultery or concubinage do not automatically annul or nullify a marriage. The offended spouse may initiate separate civil actions for legal separation, annulment, or declaration of nullity of marriage, depending on the grounds available and the circumstances.

9. Practical Considerations

  1. Emotional and Financial Costs: Pursuing a criminal case can be financially and emotionally taxing. Court proceedings in the Philippines can be lengthy and require extensive documentation.
  2. Impact on Children: If the couple has children, or if there is a child from the extramarital affair, consider the emotional, psychological, and financial repercussions for all involved.
  3. Possibility of Settlement: In some instances, the parties may choose settlement or forgiveness before or during trial, though public policy issues may come into play once the formal charge is filed.
  4. Subsequent Legal Remedies: Beyond the criminal case, the offended spouse might want to explore options like:
    • Protection Orders if there is any form of abuse.
    • Legal Separation, Annulment, or Declaration of Nullity of Marriage.

10. Conclusion

Filing an adultery or concubinage case in the Philippines involves strict legal elements and procedural rules. The birth of a child from an extramarital affair can serve as evidence but does not itself conclusively prove these crimes. Because adultery and concubinage are private crimes, only the offended spouse may initiate the complaint. Criminal convictions can lead to imprisonment for the offending spouse and, in the case of concubinage, destierro for the third party.

Given the complexity and emotional weight of these cases, and the need to carefully evaluate evidence and legal defenses, consulting a qualified Philippine lawyer is essential to assess the merits of filing such charges and to navigate the process effectively.

Disclaimer: This article provides a general overview and should not be construed as formal legal advice. For advice specific to your situation, please consult a licensed attorney in the Philippines.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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