Dear Attorney,
I have been separated from my husband for over two years now, and we are co-parenting our two children. Recently, he has been threatening to file charges of adultery against me because I have a new partner. Could I be held legally liable for adultery even though we’ve been separated for quite some time? Also, could he face the same charge since he also has a partner? I would appreciate any guidance on this matter.

— Concerned Parent

Insights

Adultery is a criminal offense under Article 333 of the Revised Penal Code of the Philippines. In the eyes of the law, adultery is committed by a married woman who engages in a sexual relationship with a man who is not her husband. For adultery charges to prosper, it must be proven that a sexual relationship occurred during the marriage, and the husband must file the complaint.

Separation, whether de facto (informal) or legal, does not automatically dissolve a marriage in the Philippines. Since the country does not have divorce (with annulment and legal separation as the primary remedies), the legal bonds of marriage remain unless a declaration of nullity or annulment is obtained. Even if a couple is separated, the legal spouse can still file a complaint for adultery if one spouse engages in a relationship with another person while the marriage is still legally valid.

As for the husband, he cannot be charged with adultery because this offense is specific to the wife. However, the husband can be charged with concubinage under Article 334 of the Revised Penal Code if he maintains a mistress in the family home, cohabits with her, or has a scandalous relationship with another woman. Concubinage, unlike adultery, has different requirements for prosecution.

In cases like these, both parties may be subject to criminal complaints if the circumstances fit the legal definitions.