Spousal Rights in Extramarital Affairs: Legal Remedies and Options (Philippine Context)

In the Philippines, marriage is a social and legal institution that is highly protected by law. The Philippine Constitution and the Family Code of the Philippines emphasize the sanctity of marriage, giving it both moral and legal significance. When a spouse engages in an extramarital affair, it can trigger various legal consequences affecting property rights, child custody, and even lead to criminal prosecution. This article provides an extensive overview of spousal rights in the face of extramarital affairs, including the legal remedies and options available under Philippine law.

1. Definition of Key Concepts

1.1. Marriage and Family in the Philippine Legal Context

Marriage is defined under the Family Code of the Philippines (Executive Order No. 209, as amended) as a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life.
The law places a high value on the preservation of the marital bond, limiting the circumstances under which it can be dissolved.

1.2. Extramarital Affairs

Commonly referred to as “affairs,” “infidelity,” or “concubinage/adultery” (in criminal law terms), an extramarital affair involves one spouse engaging in romantic or sexual relationships with someone other than their legal spouse.
In Philippine law, extramarital affairs carry both civil and criminal implications.

1.3. Adultery vs. Concubinage (Criminal Law Distinction)

Under the Revised Penal Code, the offenses of adultery and concubinage are distinct:

Adultery is committed by a married woman who has sexual intercourse with a man not her husband, and by the man who has carnal knowledge of her if he knows she is married.
Concubinage is committed by a married man under specific circumstances, such as (a) keeping a mistress in the conjugal dwelling, (b) having sexual intercourse under scandalous circumstances with a woman not his wife, or (c) cohabiting with her in any other place.

2. Criminal Aspects of Extramarital Affairs

2.1. Legal Basis

Articles 333 and 334 of the Revised Penal Code govern the crimes of adultery and concubinage.
The crimes exist to protect marital fidelity and the family as an institution.

2.2. Who May File the Criminal Case

Only the offended spouse can file a complaint for adultery or concubinage.
A complaint must include both the offending spouse and the paramour or mistress.
If the offended spouse consents or pardons the offending spouse, the criminal action can be extinguished.

2.3. Elements and Requirements

Adultery requires proof of at least one act of sexual intercourse between the married woman and the alleged paramour.
Concubinage requires proof that the husband either (1) keeps a mistress in the conjugal dwelling, (2) has sexual intercourse under scandalous circumstances, or (3) cohabits with the mistress in another place.
The evidentiary burden is significant. Mere suspicion or hearsay is insufficient; specific and credible evidence must be presented.

2.4. Penalties

Adultery: Both guilty parties (the married woman and her paramour) can be punished by prisión correccional in its medium and maximum periods (from 2 years, 4 months, and 1 day to 6 years).
Concubinage: The husband can be punished by prisión correccional in its minimum period (6 months and 1 day to 2 years and 4 months), while the mistress can receive a lighter penalty (destierro, or being barred from entering certain places).
The disparity in penalties has long been criticized but remains part of current law.

3. Civil Aspects and Remedies

3.1. Legal Separation

Grounds: Under Article 55 of the Family Code, adultery or concubinage is a valid ground for legal separation.
Effects:
1. The spouses remain legally married (no right to remarry).
2. The obligation of mutual support may continue depending on the court’s orders.
3. The court may order the separation of property, awarding custody of minor children according to the best interests of the children.
4. Inheritance rights between the spouses remain, because the marriage bond is not dissolved.

3.2. Annulment or Declaration of Nullity of Marriage

Distinction:
- Annulment applies to voidable marriages (e.g., lack of parental consent for those aged 18-21, insanity, fraud, force or intimidation, and incurable sexually transmissible disease).
- Declaration of Nullity applies to marriages that are void from the start (e.g., psychological incapacity under Article 36, bigamous or polygamous marriages, incestuous marriages, underage marriages without the required consent).
Infidelity as a Ground: Generally, infidelity alone is not a ground for annulment or declaration of nullity of marriage. However, severe and repeated acts of infidelity might be cited as a manifestation of psychological incapacity if they demonstrate an incapacity to fulfill essential marital obligations. This is determined on a case-by-case basis by the courts.

3.3. Separation of Property

Spouses may opt for judicial separation of property if the infidelity has led to a breakdown in trust. This is typically part of legal separation proceedings but can also be a separate action if warranted.

3.4. Damages

The offended spouse may claim moral damages under Article 2219 of the Civil Code if the extramarital affair caused mental anguish, wounded feelings, or social humiliation.
Proof of the emotional and psychological harm incurred is essential for an award of damages.

4. Impact on Other Legal Rights

4.1. Property Relations

Conjugal Partnership of Gains (CPG) or Absolute Community of Property (ACP): The default property regimes under the Family Code.
Extramarital affairs per se do not automatically terminate these regimes; however, if legal separation or judicial separation of property is granted, the assets may be divided, subject to court determination.

4.2. Child Custody and Support

In cases of separation (whether legal or de facto), the court’s primary consideration is the best interests of the child.
Custody is not awarded as punishment or reward for infidelity. Instead, factors such as emotional and developmental needs, the child’s preference (if of sufficient age), and the overall capacity of each parent to care for the child are evaluated.
The guilty spouse still retains the obligation to support his or her children, regardless of marital misconduct.

4.3. Succession (Inheritance Rights)

If the marriage remains valid (no declaration of nullity or annulment), spouses retain their rights to inherit from each other under intestate succession, even if one spouse committed infidelity.
Legal separation does not sever inheritance rights between spouses; they remain heirs to one another.

5. Defenses and Mitigating Factors

5.1. Pardon and Consent

If the offended spouse voluntarily pardons the offending spouse, this extinguishes the criminal action for adultery or concubinage.
Implied consent or prior knowledge without objection may also be raised in court, although it can be more difficult to prove than an express written pardon.

5.2. Prescription

Crimes of adultery and concubinage are subject to a prescriptive period. Generally, the offended spouse must file a complaint within a certain timeframe (often 5 years) from the date of the commission of the offense or from when they learned of it.

5.3. Lack of Evidence

Both adultery and concubinage require direct and credible evidence. Accusations based solely on suspicion or insufficient proof will not prosper in court.

6. Procedural Considerations

6.1. Filing a Complaint

For criminal cases (adultery or concubinage), the aggrieved spouse must file a complaint-affidavit before the appropriate Office of the City or Provincial Prosecutor.
For civil actions (legal separation, claims for damages, or separation of property), the petition is filed in the Family Court (Regional Trial Court designated as a Family Court).

6.2. Burden of Proof

In criminal cases, guilt must be proven beyond reasonable doubt.
In civil cases, the burden is a preponderance of evidence (i.e., more likely than not).

6.3. Duration and Expenses

Legal proceedings can be time-consuming and costly.
Criminal complaints require evidence gathering, possible trial, and other judicial processes.
Civil actions (legal separation, annulment, declaration of nullity) also involve filing fees, attorney’s fees, possible appeals, and mandatory court processes (including a cooling-off period in legal separation cases).

7. Practical Guidance and Considerations

Attempt Reconciliation or Counseling (If Possible)
- The Family Code encourages reconciliation. Courts even mandate a cooling-off period and, in some cases, require the parties to undergo mediation or counseling before proceeding.
Seek Legal Counsel
- Due to the complexity of adultery and concubinage laws, and the intricacies of civil remedies like legal separation or damages, consulting a reputable family law attorney is crucial.
Gather Evidence Ethically and Legally
- Evidence obtained illegally (e.g., unauthorized recordings, hacking into private social media accounts) could be inadmissible in court and may expose the offended spouse to legal liability.
- Work with your lawyer to document communications, secure witness affidavits, or retain a private investigator (within lawful bounds) if necessary.
Consider the Welfare of Children
- Children may be the most affected by a parental split. Prioritize their emotional and financial needs, maintain open communication, and try to keep conflict away from them.
Be Aware of Time Limits
- If pursuing criminal remedies, remember the prescriptive periods. Delays in acting on the offense could bar the complaint.
Explore Alternatives and Implications
- Criminal prosecution can be emotionally taxing and may not always be the most beneficial route for the offended spouse or the children.
- Weigh the pros and cons of filing for legal separation, damages, or criminal prosecution. Sometimes, an amicable settlement covering property division and support may be preferable to litigation.

8. Conclusion

Extramarital affairs have profound personal and legal implications for married couples in the Philippines. While the law offers criminal remedies (adultery and concubinage charges) and civil remedies (legal separation, claims for damages, or even, in some cases, arguing psychological incapacity for nullity of marriage), these processes can be lengthy, complex, and emotionally taxing.

Offended spouses should be aware of their rights and possible courses of action:

Criminal Prosecution: Adultery or concubinage complaints, subject to strict requirements, filed by the offended spouse.
Civil Remedies: Legal separation, judicial separation of property, and claims for moral damages.
Other Legal Options: Declaration of nullity of marriage (if grounds such as psychological incapacity exist), counseling, or mediated settlements.

Ultimately, any legal step should be taken with a full understanding of the potential consequences—both legal and personal. Engaging with a competent family law attorney is indispensable for navigating these issues in the Philippine legal system. The paramount consideration, especially when children are involved, is to arrive at solutions that safeguard their welfare while upholding the legitimate interests of the aggrieved party.