SC urges Congress to review discriminatory adultery, concubinage laws

The Supreme Court has urged Congress to revisit laws penalizing adultery and concubinage, citing their unequal treatment of men and women, while declaring unlawful the warrantless arrest of a married woman and her alleged lover.

In an en banc decision dated 3 June 2026, penned by Senior Associate Justice Marvic Leonen, the High Court raised concerns over gender discrimination under the Revised Penal Code, particularly the harsher requirements and penalties imposed on women accused of marital infidelity.

The ruling stemmed from a petition filed by Wilson Gue challenging lower court decisions that invalidated the warrantless arrest of his wife, Eileen Cagalingan Gue, and her alleged lover, Philippe Roland Codes.

National Bureau of Investigation (NBI) agents arrested the pair at a condominium unit in Pasig City in September 2009 after receiving information from the woman's husband about their alleged affair.

The Supreme Court ruled that the arrest failed to meet the requirements for a valid warrantless arrest because the agents lacked personal knowledge that an offense was being committed.

The Court stressed that an arrest without a warrant must satisfy the conditions for an in flagrante delicto arrest, in which a crime is committed in the presence of officers, or a hot pursuit arrest based on personal knowledge of facts indicating that an offense has just been committed.

The High Court denied the husband's petition and affirmed the Court of Appeals' ruling upholding the suspension of the criminal proceedings and the referral of the case for preliminary investigation.

Beyond the legality of the arrest, the Court raised broader concerns about the country's laws governing marital infidelity.

Under the Revised Penal Code, adultery is committed when a married woman engages in sexual intercourse with a man other than her husband, with the other man knowing that she is married.

Concubinage, meanwhile, requires proof that a married man keeps a mistress in the conjugal home, engages in sexual intercourse under scandalous circumstances or cohabits with another woman.

The Court noted that concubinage is more difficult to establish and carries a lighter penalty than adultery, creating unequal legal consequences for men and women.

It also acknowledged that while Republic Act 9262, or the Anti-Violence Against Women and Their Children Act, provides additional legal remedies for women experiencing psychological violence, gender equality under the law remains incomplete.

“We are yet to realize gender equality in law,” the Court said.

“The present state of laws continues to perpetuate discrimination particularly against women,” it added.

The justices emphasized that the Philippines has obligations under international agreements to eliminate discrimination against women.

Invoking Article 5 of the Revised Penal Code, the Supreme Court directed that copies of its decision be furnished to the President through the Department of Justice, the Senate president and the speaker of the House of Representatives for appropriate consideration.

The Court said it was an opportunity to draw lawmakers' attention to the inconsistency between existing penal provisions and the country's international commitments to gender equality.

The decision does not decriminalize adultery or concubinage, which remain punishable under existing law.

Any amendment or repeal of the provisions would require legislative action.