On
Adultery

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.

ELEMENTS:
1. That the woman is married (even if marriage is subsequently declared void);
2. That she has sexual intercourse with a man not her husband; and
3. That as regards the man with whom she has sexual intercourse, he must know her to be married.


Adultery may be attempted.

Sheer necessity, though woman not abandoned by her husband, mitigates liability of married woman.

The offended party must be legally married to the offender at the time of the criminal case.

Carnal knowledge may be proved by circumstantial evidence.

Each sexual intercourse constitutes a crime of adultery.

People vs. Avelino
Adultery is mitigated if the adulterous wife was abandoned w/o justification by the offended spouse. Both the wife and her paramour are entitled to this mitigating circumstance.

Even if the husband pardons the adulterous wife, such pardon would not exempt the wife and her paramour from criminal liability for adulterous acts committed after the pardon had been granted, because the pardon refers to previous and not to subsequent adulterous acts.

A married man who is not liable for adultery, because he did not know that the woman was married, may be held liable for concubinage. If the woman knew that the man was married, she may be held liable for concubinage as well.

Acquittal of one of the defendants does not operate as a cause of acquittal of the other.

Effect of death of paramour: Offending wife may still be prosecuted. The requirement that both offenders should be included in the complaint is absolute only when the two
offenders are alive.


EFFECT OF PARDON:
The pardon must come before the institution of criminal prosecution.

Both offenders must be pardoned by the offended party.

An act of intercourse subsequent to adulterous conduct is an implied pardon.

Consent is a cause for dismissal of a complaint.

Effect of death of offended party: The proceedings may continue. Pardon by the offended party to be effective must be granted to both offenders before the institution of criminal proceedings.

Effect of consent:

People v. Sensano and Ramos
The husband, knowing that his wife, after serving sentence for adultery, resumed living with her co-defendant, did nothing to interfere with their relations or to assert his rights as husband. The second charge of adultery should be dismissed because of consent.

Agreement to separate
may be used as evidence to show consent by the husband to the infidelity of his wife

Under the law, there is no accomplice in adultery.

Bar Exam Question (2002)

Adultery (2002)

A, a married woman, had sexual intercourse with a man who was not her husband. The man did not know she was married. What crime, if any, did each of them commit? Why? 

Suggested Answer:

A, the married woman, committed the crime of adultery under Article 333 of the Revised Penal Code, as amended, for having sexual intercourse with a man, not her husband while her marriage is still subsisting. But the man who had carnal knowledge of her, not knowing her to be married, shall not be liable for adultery.