Enacting the Anti-Marital Infidelity Law

Policy Brief No. 3

Addressing the Inequality in our Penal Law on Adultery and Concubinage:
Enacting he Anti!"arital Infidelity Law
This policy brief provides the rationale for amending Revised Penal Code provisions
on Adultery and Concubinage. It also presents recommendations on how to address
the inequalities in the law while still protecting the institution of marriage

WHAT IS THE ISSUE?
Marital infidelity is a violation or breach of good faith and confidence by one or both
spouses to the matrimonial vows. It is also a maor spousal pressure that
eventually causes the brea!down of marriage as a foundation of the family.
"ur present laws on adultery and concubinage under the Revised Penal Code both
constitute marital infidelity# but these are deemed as discriminatory and nebulous.
$hile both aim to punish marital infidelity of the spouses# there is higher burden
put on wives than on husbands. This disparity in the treatment of the law is seen in
the evidentiary requirement for the two crimes and there is a huge underlying
difference if the infidelity was committed by the male or female spouse. %or the
wife# adultery means one act of se&ual intercourse provable through circumstantial
evidence while for the husband# evidentiary requirement for concubinage is higher
by proving that the se&ual intercourse with a woman who is not his wife is under
scandalous circumstances' that he is !eeping another woman in the conugal home'
or that he is cohabiting with her in another dwelling. "ur present law also imposes
higher penalty to married women who commit infidelity as compared to married
men( . The usual reasoning for the distinction is that the infidelity of the wife can
result in introducing alien blood into the family' that an illegitimate child could be
passed off as the husband)s and he will end up supporting and giving his name to
the said child. It is also claimed that this probability does not arise if it is the
husband who commits concubinage.
It should be noted that as private crimes# our present law on adultery and
concubinage regards the privacy of the offended party as more important than the
disturbance to the order of society# as it gives the offended party the preference
whether or not to sue. The moment the offended party has initiated the criminal
complaint# the public prosecutor will ta!e over and continue with prosecution of the
offender. The moment the prosecution starts# the crime has already become public
and it is beyond the offended party to pardon the offender. *ut the RPC provision
on adultery has been used or mostly abused by many husbands against their wives
to threaten# torture# harass or compel the latter to yield to his demands. "n the
other hand# the law on concubinage renders it e&tremely difficult for the wives to
prove the three elements in the Courts of law which results to more dismissals of
cases filed.
WHY IS THE ISSUE IMPORTANT?
The penal provisions on adultery and concubinage both constitute marital infidelity
but are viewed differently by a predominantly chauvinist society. The disparity in
treatment stems from gender biases that use double standards in being more
lenient thus seemingly accepting the infidelity of men as normal# but more stringent
on women who are e&pected to be one who is faithful to her husband no matter
what. These discriminatory provisions in the law should be amended.
WHAT ARE THE EXISTING LAWS OR POLICY ISSUANCES RELATED TO THE
ISSUE?
+ection (, of RA -.(/ or the Magna Carta of $omen 0MC$1 provides for the
amendment or repeal of laws that are discriminatory to women which# among
others# include Articles 222 and 223 of the Revised Penal Code on adultery and
concubinage.

The (-4. Philippine Constitution 5 Article II on 6eclaration of Principles and +tate
Policies particularly on +ection (3 provides that 7The +tate recogni8es the role of
women in nation9building# and shall ensure the fundamental equality before the law
of women and men:. Article ;<# +ection , also provides that the +tate shall protect
the marriage as inviolable social institution and foundation of family life.
WHAT ARE THE EXPERIENCES OF OTHER COUNTRIES IN ADDRESSING THE
ISSUE?
In Canada# the crime of adultery applies to both a man and a woman when either of
them has se& with someone outside the marriage. Adultery is also a crime in =orea
punishable by up to two 0,1 years in ail. In many countries such as the >nited
+tates# Russia# Canada# Israel and Poland# adultery represents as ground for
divorce. Iran# Pa!istan# +audi Arabia and ?emen punish adultery by death however#
there have been no recent e&ecutions unless other crimes were involved . ,
WHAT ARE THE CONSIDERATIONS IN ADDRESSING THIS ISSUE IN THE
COUNTRY?
Promoting women)s rights and gender equality
Removing the double standards in the crimes of adultery and concubinage will
contribute to ensuring equality before the law between women and men. It will also
protect the rights of legally married women.
Responding to Inten!tion!" Co##it#ents
Article ,0g1 of the Convention on the @limination of All %orms of 6iscrimination
Against $omen 0C@6A$1 requires the +tate to modify or abolish e&isting laws#
regulations# customs and practices that constitute discrimination against women.
Article (A also called on the +tates Parties to ta!e all appropriate measures to
eliminate discrimination against women and ensure equality of men and women in
all matters relating to marriage and family relations.
The ,//A C@6A$ Committee Concluding Comments on the Bth and Ath Philippine
Country Report raised its concern on the lac! of progress in underta!ing and
completing necessary revisions of discriminatory provisions in the RPC# particularly
Marital Infidelity *ill which is still pending.
A"ign#ent $it% N!tion!" Pioities
The proposed measure is consistent with item (2 of the government)s (A9Point
Agenda on Cender @quality which states# 7from a lac! of concern for gender
disparities and shortfalls# to the promotion of equal gender opportunity in all
spheres of public policies and programs.:
It will also complement the Constitutional provision on the protection of marriage as
an inviolable social institution and foundation of family life.
POLICY RECOMMENDATION
Marital infidelity should remain an illegal act because it is not only a crime against
the other spouse but also a breach to the marital vows. Marriage is a special
contract such that it is a three9party agreement that involves the spouses and the
+tate. Although the personal rights of the spouses are involved# the +tate also
considers itself as an offended party# not because of a breach of public order but
because of the violation of marital vows which the +tate itself protects. The +tate
regulation of marital relationships which criminali8es infidelity will help strengthen
the marriage as an institution by serving as deterrent for both spouses from testing
the minefield of e&tramarital affairs.
*ut the law should not distinguish between the infidelity of a man from the infidelity
of a woman.

After all# they said the same marriage vows and the wife is not any less betrayed by
the unfaithful husband than a husband whose wife bro!e her vows. In order to
address this gender bias# it is recommended that Revised Penal Code provision on
Adultery and
Concubinage be amended as followsD
(. 6efine 7marital infidelity: as committed by Eany legally married person
who shall have se&ual intercourse with another person other than the
legal spouse# and by the person who has se&ual intercourse with the
married person# !nowing that person to be legally married# even if the
marriage be subsequently declared voidE'
,. Impose the same penalties for offending parties for the same gravity
of offense committed'
2. Mandate that the crime of marital infidelity shall not be prosecuted
e&cept upon complaint filed by the offended spouse'
3. Provide that an offended party shall be barred from instituting a
criminal prosecution if said party is also guilty of committing the
offense.
$hile this proposal will not guarantee that the spouses will remain faithful to the
marital vows# equali8ing the grounds and penalties for marital infidelity will give
women the option to file criminal charges against a philandering husband' an
option which although present in our current law# is inutile given the nature and the
degree of burden needed to file and prove the crime of concubinage.
CONCLUSION
Fegislative proposals to amend RPC provisions on adultery and concubinage by
enacting a marital infidelity law were filed but remained pending since the (2th
Congress. It is hoped that# in the interest of fulfilling their mandate under the
Magna Carta of $omen# our legislators will prioriti8e and favor the immediate
enactment of a marital infidelity law.

PCW Po"i&' (ie)s !i# to sti#*"!te in)o#ed dis&o*se !nd g*ide po"i&'
!&tions on iss*es &on&ening t%e e#po$e#ent o) $o#en !nd po#otion
o) gende e+*!"it',
http://www.pcw.gov.ph/wpla/marital-infdelity-law