What is adultery?
Under Article 333 of the Revised Penal Code, 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 intercourse with her knowing that she is married. The man may therefore be charged as a co-accused when the required knowledge is present.
What are the elements of adultery?
The prosecution must establish beyond reasonable doubt that:
- The woman was legally married and the marriage had not been dissolved;
- She had sexual intercourse with a man other than her husband; and
- As to the man’s liability, he knew that she was married.
What is concubinage?
Under Article 334 of the Revised Penal Code, concubinage is committed by a married man who:
- Keeps a mistress in the conjugal dwelling;
- Has sexual intercourse, under scandalous circumstances, with a woman who is not his wife; or
- Cohabits with a woman who is not his wife in another place.
The woman who knowingly participates as the concubine may also be charged and, if convicted, is subject to the penalty prescribed by law.
What are the elements of concubinage?
The prosecution must establish beyond reasonable doubt that:
- The man was legally married;
- He committed at least one of the specific acts of concubinage defined in Article 334; and
- As to the alleged concubine’s liability, she knew that the man was married.
The offended wife’s status is also material because only the offended spouse may initiate the prosecution.
Can the complaint be filed against only one of the offenders?
As a rule, no. Adultery and concubinage are private offenses that may be prosecuted only upon a complaint filed by the offended spouse. The offended spouse must include both alleged guilty parties when both are alive. Prosecution is also barred if the offended spouse consented to the offense or pardoned the offenders.
Can adultery or concubinage be prosecuted if the spouses are separated?
Potentially, yes. Mere factual separation, and even legal separation by itself, does not dissolve the marriage bond. As long as the marriage remains legally valid, the marital-status element may still be present. However, the facts must still satisfy all statutory elements and procedural requirements, and consent or pardon may affect whether prosecution is permitted.
Legal basis: Articles 333, 334, and 344 of the Revised Penal Code and Section 5, Rule 110 of the Rules of Criminal Procedure.