Former spouse cannot be sued for either adultery or concubinage

Persida Acosta

Persida Acosta

Dear PAO,
I just want to know if I can still file a criminal case for adultery against my wife. I found out just recently that a decision was rendered by the court declaring our marriage null and void. She has been cohabiting with a man in Manila. Can I still file the case?


Dear Henry,
Adultery is defined and punished under Article 333 of the Revised Penal Code as follows:
“Art. 333. Who are guilty of 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.

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.”

In the same vein, Article 344 of the said law provides that the crime of concubinage shall not be prosecuted except upon complaint filed by the offended spouse.

Since your marriage to your wife is already declared null and void, it goes without saying that you are no longer considered as her husband. Thus, you can no longer file the criminal case for concubinage against your former wife. This principle was elucidated by the Supreme Court in the case of Imelda M. Pilapil vs. Hon. Corona Ibay-Somera (G.R. No. 80116 June 30, 1989), to wit:

“Now, the law specifically provides that in prosecutions for adultery and concubinage the person who can legally file the complaint should be the offended spouse, and nobody else.

xxx In other words, only the offended spouse, and no other, is authorized by law to initiate the action therefor.

Corollary to such exclusive grant of power to the offended spouse to institute the action, it necessarily follows that such initiator must have the status, capacity or legal representation to do so at the time of the filing of the criminal action. This is a familiar and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.

The absence of an equivalent explicit rule in the prosecution of criminal cases does not mean that the same requirement and rationale would not apply. Understandably, it may not have been found necessary since criminal actions are generally and fundamentally commenced by the State, through the People of the Philippines, the offended party being merely the complaining witness therein. However, in the so-called “private crimes” or those which cannot be prosecuted de oficio, and the present prosecution for adultery is of such genre, the offended spouse assumes a more predominant role since the right to commence the action, or to refrain therefrom, is a matter exclusively within his power and option.

This policy was adopted out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial.  Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code thus presupposes that the marital relationship is still subsisting at the time of the institution of the criminal action for, adultery. This is a logical consequence since the raison d’etre of said provision of law would be absent where the supposed offended party had ceased to be the spouse of the alleged offender at the time of the filing of the criminal case.”

It is clear based on the foregoing that you can no longer file a criminal case for adultery against your former wife. The decision of the court declaring your marriage to your wife null and void made you ineligible to file the said case.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to guide you with our opinion on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to


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