Adultery

1. What is Adultery?

"Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man, who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void." (Article 333 of the Revised Penal Code)

2. Is there a difference between Adultery and Concubinage?

Yes, there are several differences between Adultery and Concubinage:
a.Adultery is committed by the wife while Concubinage is committed by the husband;
b.Proof of sexual intercourse is enough to prove adultery while in concubinage, the offended party must prove that the sexual intercourse was under scandalous circumstances or that her husband kept a mistress in the conjugal dwelling or had been cohabiting with her in any other place;
c.The penalty for concubinage is lower than that of adultery. The penalty for the concubine is only destierro, while the penalty for the man in adultery is the same as that of the guilty wife.

3. I caught my wife chatting with another man on Facebook. Is my wife guilty of Adultery?

Based on the above definition, your wife is not guilty of the crime of Adultery. In order for a case of Adultery to prosper, the following elements of the crime of Adultery must be present:
a.That the woman is married;
b.That she had sexual intercourse with a man not her husband;
c.That as regards the man with whom she has sexual intercourse, he must know her to be married.

4. My mother caught my wife having sex with our gardener. After my mother told me about it, she decided to file the case against my wife for Adultery. Could my mother file the case for Adultery against my wife?

No. Only the offended spouse can file a case of adultery against the offending spouse. "The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. xxx" (Rule 110, Section 5(2) of the Revised Rules of Criminal Procedure)

Further, the status of the marriage is material to the filing of the complaint. The status of the parties' marriage is determined at the time of filing of the complaint. Since the offended spouse is given the exclusive power to initiate the action, he must have the necessary status and capacity to do so. Therefore, their marriage must be subsisting at the time of filing.

"We are convinced that in cases of such nature, the status of the complainant vis-à-vis the accused must be determined as of the time the complaint was filed. Thus, the person who initiates the adultery case must be an offended spouse, and by this is meant that he is still married to the accused spouse, at the time of filing of the complaint." (Pilapil vs. Iba-Somera, G.R. No. 80116, 30 June 1989)

5. I am an OFW in Saudi Arabia and I discovered that my wife is having sexual relations with our pool boy. Even my siblings attested to this. Can my sister file the Complaint for Adultery in my behalf?

No. As stated in Rule 110 Section 5(2), the law is very specific in stating that only the offended spouse may file the complaint against the offending parties. No one else may file such complaint in behalf of the offended spouse; not even the State. The criminal complaint will not prosper should it be filed by a third person.

"It is significant that while the State, as parens patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power to initiate the criminal action for a deceased or incapacitated victim in the aforesaid offenses of seduction, abduction, rape and acts of lasciviousness, in default of her parents, grandparents or guardian, such amendment did not include the crimes of adultery and concubinage. In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor." (Pilapil v. Ibay-Somera, G.R. No. 80116, 30 June, 1989)

6. I married my first husband A back in June 1988. After 10 years of marriage, A left me in 1998. Since I have not seen A for 10 years, I tried to move on with my life. Sometime in 2008, I met B, a kind and generous man. We married in 2010. Then 5 years later, A came to my house and accused me of Adultery. Did I commit this crime?

Yes, you may be held liable for the crime of Adultery. Considering that you have not secured the dissolution of your marriage to A when you married B, then A may sue you for Adultery, in addition to Bigamy.

7. I married my first husband A back in June 1988. After 10 years of marriage, A left me in 1998. Since I have not seen A for 10 years, I tried to move on with my life. I filed a Petition for Declaration of Nullity of Marriage and I received a Decision in 2010. Sometime in 2012, I met B, a kind and generous man. We married in 2015. Then in 2017, A came to my house and accused me of Adultery. Did I commit this crime?

No. Based on the definition above, the woman must be married at the time she had sexual relations with another man who is not her husband. The marital status must be present at the time of filing the complaint. Since it is only the legal spouse who is afforded the right to file the complaint, the grant of nullity of marriage between the parties removes the right given to the offended spouse to file an action for adultery. Once the marriage between the parties is severed, the offended spouse may no longer file a complaint for adultery even if the act was done during the subsistence of the marriage.

8. I married my first husband A back in June 1988. After 10 years of marriage, A left me in 1998. Since I have not seen A for 10 years, I tried to move on with my life. I filed for Legal Separation and I received a Decision in 2010. Sometime in 2012, I met B, a kind and generous man. We married in 2015. Then in 2017, A came to my house and accused me of Adultery. Did I commit this crime?

Yes. You may still be held liable for Adultery since Legal Separation does not dissolve your marital union with A. You cannot interpose Legal Separation as a defense. In Legal Separation, the spouses are merely separated bed and board but the marriage of the parties is still in force. Therefore, any of the spouses who commit adultery, even while legally separated, may be held liable for such crime.

9. I caught my wife having sexual relations with my best friend. After my wife said sorry, I accepted her apology. But I still want to file a case against my best friend who betrayed my trust. Will the case for Adultery prosper in court?

No. The criminal Complaint for Adultery must be filed against both the wife and the best friend. The persons liable for the crime of adultery are:
a.The married woman who engages in sexual intercourse with a man not her husband;
b.The man who, knowing that the woman is married, has sexual intercourse with her.

A criminal complaint for adultery must be filed against both guilty parties --- the offending spouse and the man with whom she has sexual intercourse. The complaint cannot be filed against only one of them.

"The offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders." (Rule 110, Section 5(2), Revised Rules of Criminal Procedure)

If a criminal complaint was filed without including one of the guilty parties, the case shall be dismissed for lack of conformity with the provisions of the law.

10. What is the penalty of adultery?

"Adultery shall be punished by prision correccional in its medium and maximum periods. If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed." (Art. 333 of the Revised Penal Code)

Persons convicted of the crime of adultery may face imprisonment from 2 years, 4 months and 1 day to 6 years. If the crime of adultery was committed because of the abandonment by the offended spouse, the offending parties face imprisonment from 6 months and 1 day to 2 years and 4 months.

11. I caught my wife having sex with our neighbor. When I confronted them, my wife cried and asked for forgiveness and another chance. I thought about it and I told her I forgive her. We lived together again under one roof. But I changed my mind as I learned I could not go on living with her anymore. Could I still file a case against my wife for Adultery?

No. The offended spouse shall be barred from instituting a criminal complaint against the guilty parties when he pardons or consents to their infidelity.

However, if after the pardon, the wife and her lover continue their sexual relationship, the husband can charge them both for the crime of adultery as his pardon only covers the previous transgressions of his wife and her paramour.

12. What happens if the husband pardons his wife?

The pardon absolves the wife of the crime of adultery and the husband can no longer charge her.

13. What are the requirements of pardon?

The requirements of pardon are as follows:
a.The pardon must come before the institution of the criminal prosecution;
b.Both offenders must be pardoned.

"In this jurisdiction pardon for adultery and concubinage must come before the institution of the criminal action and both offenders must be pardoned by the offended party if said pardon is to be effective. The pardon can be express or implied. Thus, when the offended party in writing or in an affidavit asserts that he or she is pardoning his or her erring spouse and paramour for their adulterous act this is a case of express pardon. There is implied pardon when the offended party continued to live with his spouse even after the commission of the offense. However such consent or pardon cannot be implied when the offended party allows his wife to continue living in the conjugal home after her arrest only in order to take care of their children." (Ligtas vs. Court of Appeals, G.R. No. L-47498, 07 May 1987)

14. My wife and I have signed a Memorandum of Agreement that we consent to have an "open marriage" where we are allowed to have sex with other people. After 5 years of marriage, I learned that my wife is having sex with my best friend. I decided to file a Complaint for Adultery against her and my best friend. Is our Memorandum of Agreement a bar to filing a case of Adultery?

No. Any agreement made between husband and wife consenting to a future adulterous act by one spouse is considered void. So you may still file a complaint against your wife and her lover.

Art. 333 of the Revised Penal Code does not intend to imply that by the word "consent" meant that the offended spouse previously agreed that his spouse engage in an extra marital affair. Consent is manifested by the offended spouse after the commission of the offense.

The expression "if he shall have consented" in Article 344 of the Revised Penal code, which bars the "offended" husband from instituting a prosecution, has no reference to any consent or agreement prior to the commission of the offense but related to an express or implied acquiescence subsequent to the offense. This consent or acquiescence need not be express but may be inferred from the conduct or the long continued inaction of the husband after learning of the offense. The husband who is truly "offended", within the meaning of the statute, will not sit passively by and allow his name and the honor of his family to be flagrantly sullied by the notorious adultery of his wife. xxx His consent to the offense before it was committed was void but his tolerance of and acquiescence in the offense after it was committed demonstrate that it is a hypocritical pretense for him now to appear in court as the "offended party" and bar his right to prosecute his wife." (People vs. Guinucud and Tagayun, G.R. No. L-38672, 27 October 1933)

15. I caught my wife cheating on me with our neighbor. I did not confront her right away. One night we celebrated our anniversary and I temporarily let go of my anger. I ended up sleeping again with my wife. Can I still file a case against her and our neighbor?

No. Sleeping with your wife after having knowledge of her adulterous acts may constitute as condonation or forgiveness for her offense.

"Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission, by a husband or wife of a matrimonial offense which the latter has committed". (Bugayong v. Ginez, G.R. No. L-10033, 28 December 1956)

16. I caught my wife having sex with our pool boy. When I confronted her about it, she asked for forgiveness which I gave. But then a year later, I caught her again doing the deed with our neighbor. Could I still file a case for Adultery against her?

Yes. While you were presented from filing a case for Adultery against your wife after you have forgiven her, the second instance of Adultery is not covered by your forgiveness. Thus, you may still file a case against your wife for the second incident of Adultery.

"Adultery is a crime of result and not of tendency. It is an instantaneous crime which is consummated and exhausted or completed at the moment of the carnal union. Therefore, each sexual intercourse constitutes a crime of adultery. There is no constitutional or legal provision which bars the filing of as many complaints for adultery as there were adulterous acts committed, each constituting one crime." (People v. Zapata, G.R. No. L-3047, 16 May, 1951)

17. I am a husband who discovered that my wife had been having several affairs throughout the course of our marriage. One affair in particular had her checking in into a hotel twice a month without fail for the past six months. Can I charge her with the crime of adultery?

Yes, proof of sexual intercourse by the guilty wife with a man not her husband, is enough to establish the crime of adultery.

Furthermore, each sexual intercourse counts as one consummated act of adultery. Thus, your wife and her lover could be charged for several counts of adultery. (see People of the Philippines vs. Zapata)

18. I caught my wife and my best friend having sex inside our bedroom. After I confronted them, I threw them both out of the house. A few weeks later, I filed a complaint against my wife and my best friend for the crime of Adultery. During the Preliminary Investigation, my best friend claimed that he did not know that my wife was married to me which is absolutely false because he was actually my best man at our wedding. Can he still be charged with Adultery?

Yes. It is necessary that the unfaithful wife's lover know that the latter is married to obtain his conviction. However, if such knowledge cannot be proven, he may be absolved while the guilty wife shall be held liable alone.

"Must there also be in every case a joint criminal intent? We think not. While the criminal intent may exist in the mind of one of the parties to the physical act, there may be no such intent in the mind of the other party. One may be guilty of the criminal intent, the other innocent, and yet the joint physical act necessary to constitute adultery may be complete. Thus, if one of the parties was, at the time of committing the physical act, insane, certainly such party has committed no crime; but it certainly cannot be contented that the other party who was sane, committed no crime. So, if the man had no knowledge that the woman was married, he would be innocent, in so far as the crime of adultery is concerned and the woman guilty. The one would have to be acquitted and the other found guilty, although they were tried together. Or in other words, the act of sexual intercourse with a married or an unmarried man, other than her husband, is adultery in the woman without regard to the guilt of the man." (The United States vs. Teodora Topiño and Gabriel Guzman, G.R. No. 11895, 20 September 1916)

19. I caught my wife having sex with a stranger. I learned later on that the man was her co-worker. After I filed a criminal case for Adultery against both of them, the man was acquitted as supposedly, he did not have an idea that my wife was married to me. After the acquittal of this man, I saw him visit my wife who was out on bail. I saw them have sex again at my wife's apartment. Could I still charge this man for Adultery?

Yes, you may charge this man for Adultery even after he was acquitted during the first instance. Duble jeopardy would not attach in this case because this is a different incident of Adultery. By the fact that a criminal complaint for adultery was charged against him, he now has knowledge that his lover is in fact married. Despite knowing the consequences, he still risked the same by continuing his relationship with his lover. Charging him again of adultery would not result in double jeopardy as criminal intent is now present.

20. I caught my wife having sex with a stranger. Out of sheer anger and devastation of her betrayal, I punched the man and slapped my wife. The man is threatening to file a case against me for physical injuries. What would happen to me?

As the offended spouse in this scenario, you may be exempt from punishment as provided by Article 247 of the Revised Penal Code. However, to be able to benefit from this defense, you need to prove that you actually caught your spouse and her paramour in the act of having sex, or in flagrante delicto. Article 247 absolves or limits the liability of the accused/offended spouse depending on the damage or injury inflicted upon the victim/s.

"Any legally married person who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act of immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro. If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment. These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents. Any person who shall promote or facilitate the prostitution of his wife or daughter, or shall otherwise have consented to the infidelity of the other spouse shall not be entitled to the benefits of this article." (Art. 247, Revised Penal Code)

21. What happens if the wife commits adultery with another man who is also married?

If the man is married, he may also be held liable for concubinage and the married woman would also be charged as his concubine.