Adultery

1. What is Adultery?

Adultery is the carnal relationship between a married woman and a man not her husband.

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. What are the elements of adultery?

The elements of adultery are:

1. That the woman is married;

2. That she had sexual intercourse with a man not her husband;

3. That as regards the man with whom she has sexual intercourse, he must know her
to be married.

3. Who may file the case of adultery against the offending spouse?

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--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)
4. Can a married woman who marries a second time be found guilty of
adultery?

Yes, a married woman whose marriage has not been dissolved may be held liable for
adultery in addition to her criminal liability for bigamy.

5. What if the case was filed after the spouses divorced or after the marriage
was annulled?

Again, 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 or concubinage. Once the marriage between the parties is severed, the
offended spouse may no longer file a complaint for adultery or concubinage even if the act
was done during the subsistence of the marriage.

6. If the spouses have already been declared legally separated, may it be a

proper defense against the crime of adultery?

No, the offending spouse cannot interpose legal separation as a defense. It is for the
reason that 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.

7. Can anyone else file, on behalf of the offended spouse, a case for adultery
against the offending parties?

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)

8. Who are liable for the crime of adultery?

The persons liable for the crime of adultery are:

 1. The married woman who engages in sexual intercourse with a man not her
husband;

2. The man who, knowing that the woman is married, has sexual intercourse with
her.

9. To whom is a criminal complaint for adultery filed against?

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. I am a husband who discovered my wife is sleeping with our neighbor. I

already forgave my wife. However, I still want to charge her lover for I had
trusted him. Can I file a complaint for adultery against the lover only?

No. You just cannot file a complaint for adultery against the lover without including your
guilty spouse. For the criminal charge of adultery to prosper, the offended spouse must
institute the crime against both the guilty parties (the guilty spouse and the lover).

Furthermore, pardon by the offended spouse renders the filing of the charge against the
guilty parties void. The criminal charge cannot prosper if the offended party has consented
to the offense or pardoned the offenders.

11. 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.
12. What are the reasons when the offended spouse may be barred from
instituting a criminal complaint for adultery against the offending parties?

The offended spouse shall be barred from instituting a criminal complaint against the guilty
parties when he pardons or consents to their infidelity.

13. 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.

14. What are the requirements of pardon?

The requirements of pardon are as follows:

1. The pardon must come before the institution of the criminal prosecution;

2. 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)

15. If a husband had pardoned his wife and her lover, can he later charge them
for the crime of adultery?

No. If the husband has already pardoned his wife of her adulterous acts, he can no longer
charge her with the crime of adultery.

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.
16. How does consent to commit adultery bar the offended spouse from
instituting the complaint?

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. Any agreement made between husband and wife consenting to a future
adulterous act by one spouse is considered void. 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)

17. A husband slept with his wife even after he found out that she was cheating
on him. Can he file a case of adultery against her?

No. It has been held in a long line of decisions of the various supreme courts of the
different states of the U.S. that a single voluntary act of sexual intercourse by the
innocent spouse after discovery of the offense is ordinarily sufficient to constitute
condonation.

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)

18. Can an offended husband be allowed to charge his offending wife only once
with the crime of adultery?

No.

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)
19. 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)

20. What if the unfaithful wifes lover declares that he had no knowledge that his
lover was a married woman, can he still be charged for the crime of adultery?

It is necessary that the unfaithful wifes 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 w, 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 Topio and Gabriel
Guzman, G.R. No. 11895, 20 September 1916)

21. So, if a man declares that the marital status of his lover is unknown to him,
can he no longer be charged for the crime of adultery?

As discussed, the offended spouse cannot institute a criminal action for adultery without
including both the guilty parties --- his offending spouse and her lover. It does not
necessarily mean that once the criminal complaint has been filed, both of them will be
tried together. It is only in the institution of the criminal action that requires the charging
of both guilty parties. It is up to the Prosecutor to determine whether there is probable
cause to charge either both guilty parties or only one of them.

The force of the article is spent when the husband institutes the prosecution against both
of includes both in his complaint. It is not for the husband to determine the question of the
guilt or innocence of the paramour of the crime of adultery. That question must be left to
the court. When the complaint is filed by the offended husband against both of the guilty
parties, the proceedings then pass into the hands of the prosecuting officer, who may
move for a dismissal of the complaint as to the paramour, if he is satisfied that he cannot
establish guilty knowledge on the part of the man of the fact that the woman was married,
and such dismissal would not of itself require the court to acquit the woman. Nor would
the death of the woman during the pendency of the action defeat the trial and conviction
of the man. (United States v. Topio, G.R. No. 11895, 20 December 1916)

22. If the lover, having been acquitted of the crime of adultery on the ground
that he had no knowledge of the marital status of his lover, continues to have
sexual relations with her, would charging him for adultery again result in double
jeopardy?

No, double jeopardy would not attach. 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.

23. What if I killed or injured my spouse and/or her paramour when I

caught her in the act of committing sexual intercourse with another person?

For the accused/offended spouse to be able to maximize the defense found in Article 247
of the Revised Penal Code, he must prove the he actually caught his spouse inflagrante
delicto (or in the act of doing the deed), and that he killed his spouse and/or the other
party during or immediately thereafter. 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)

24. 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.
25. Is there a difference between adultery and Concubinage?

Yes, there are several differences between Adultery and Concubinage:

1. Adultery is committed by the wife while Concubinage is committed by the

husband;

2. 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;

3. 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.