ELEMENTS
- That the woman is married.
- That she has sexual intercourse with a man not her husband
- That as regards the man with whom she has sexual intercourse, he must know her to be married.
NATURE
- Instantaneous crime.
- It is consummated and completed at the moment of the carnal union.
- Each sexual intercourse constitutes a crime of adultery.
WHO MAY BE SUED
- The offender wife, and
- The man who knows that the woman is married
- Although the paramour is not aware that the other party is married, for the purpose of filing the complaint, the paramour must be included in the complaint/information
WHO MAY SUE
- The person who initiates the adultery case must be an offended spouse (husband), and by this is meant that he is still married to the accused spouse at the time of the filing of complaint.
- Pilapil v. Ibay-Somera, June 30, 1989: Where the offended party (foreigner) in an adultery case already obtained a divorce in his country before the adultery proceedings are commenced, he no longer has the right to institute proceedings against the offenders.
ABANDONMENT WITHOUT JUSTIFICATION IS ONLY MITIGATING, NOT EXEMPTING CIRCUMSTANCE
- 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 (last par., Art. 333)
EFFECT IF MARIED MAN OFFENDER DOES NOT KNOW THAT THE WOMAN IS MARRIED
- He may be held liable for concubinage.
- But the married woman is guilty of adultery. If she knew that the man was married, she would be liable for concubinage also.
EFFECT OF DEATH
| Paramour | It will not bar prosecution against the unfaithful wife.
Rule that both offenders shall be impleaded in the complaint is absolute only when the two offenders are alive. |
| Offended Party | Complaint already filed: The proceedings shall continue.
Before complaint could be filed: The case cannot go on because no one can sign and file the complaint. |
REQUISITES OF PARDON
- The pardon must come before the institution of the criminal prosecution; and
- Both the offenders must be pardoned by the offended party.
CONSENT BY SPOUSE
- People v. Sensano and Ramos, March 27, 1933: When the husband knew that his wife resumed living with her paramour and did nothing to interfere with their relations or to assert his rights as husband, then this conduct warrant the inference that he consented to the adulterous relations existing between the accused and therefore he is not authorized by law to institute a criminal proceeding for adultery.
EFFECT OF AGREEMENT TO SEPARATE
- This agreement is void in law.
- However, it is an indicative of the spouse’s consent to the infidelity of the other. Husband cannot institute a criminal complaint for adultery.
ATTEMPTED AND FRUSTRATED ADULTERY
- No frustrated adultery.
- There is an attempted adultery such as when the offenders are caught undressing in the hotel.
- Reason: Essence of adultery is sexual intercourse.
See other criminal law notes, updates and jurisprudence HERE.
