The Revised Penal Code punishes marital infidelity through two distinct crimes that apply unequally to wives and husbands. Adultery is committed by a married woman who has sexual intercourse with a man not her husband, and by the man who has intercourse with her knowing she is married; each act of intercourse is a separate count, and it is proven by showing the sexual act. Concubinage, on the other hand, is committed by a married man, but only under specific circumstances: keeping a mistress in the conjugal dwelling; having sexual intercourse under scandalous circumstances with a woman not his wife; or cohabiting with her in any other place. This means a husband's mere act of infidelity, without one of these qualifying circumstances, is not concubinage, making concubinage much harder to prove than adultery, and its penalty is also lighter, while the concubine suffers a lighter penalty than the paramour in adultery. Both are private crimes: they can be prosecuted only upon a complaint filed by the offended spouse, who must include both guilty parties (the spouse and the paramour or concubine) and must not have consented to or pardoned the offense. This gender-based inequality has been widely criticized, and there have been calls to replace both with a single, sex-neutral offense, but as the law stands, adultery and concubinage remain distinct with different elements and penalties. Understanding this matters for a spouse considering a criminal case for infidelity, since what must be proven differs greatly depending on which spouse strayed.
Two Unequal Crimes
Adultery is committed by a married woman (and her partner) through sexual intercourse — each act a separate count. Concubinage is committed by a married man only in specific circumstances.
Concubinage Is Harder to Prove
- Keeping a mistress in the conjugal dwelling;
- Intercourse under scandalous circumstances; or
- Cohabiting with her elsewhere.
Both Are Private Crimes
A husband's mere infidelity without a qualifying circumstance is not concubinage, and its penalty is lighter. Both crimes need a complaint by the offended spouse, must include both guilty parties, and fail if the spouse consented or pardoned.
Practical Takeaways
- Adultery (wife) is proven by the sexual act; concubinage (husband) needs a qualifying circumstance;
- Concubinage is harder to prove and lighter in penalty;
- Both are private crimes needing the offended spouse's complaint against both parties.
Frequently Asked Questions
What is the difference between adultery and concubinage? Adultery is committed by a married woman through sexual intercourse with another man. Concubinage is committed by a married man only under specific circumstances, such as keeping a mistress in the conjugal home or cohabiting elsewhere.
Why is concubinage harder to prove than adultery? Adultery requires only proof of the sexual act. Concubinage requires proof of a qualifying circumstance, so a husband's mere infidelity without such a circumstance is not concubinage.
Can I file a case for infidelity against only one party? No. Both adultery and concubinage are private crimes, and the offended spouse must include both guilty parties (the spouse and the paramour or concubine) in the complaint.
What defeats an adultery or concubinage case? Consent to or pardon of the offense by the offended spouse. The complaint must also be filed by the offended spouse, not by anyone else.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you have questions about your rights or options under Philippine law, our firm is available to assist. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.