Bigamy, A349 Revised Penal Code

Bigamy – refers to contracting a second/subsequent marriage despite the first/prior marriage is still subsisting.

1. Concept

Bigamy – refers to contracting a second/subsequent marriage despite the first/prior marriage is still subsisting.

a. Legal basis

Article 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

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2. Modes of commission

The following are the modes of committing the offense:

1) Contracting subsequent marriage before former marriage is dissolved or absent spouse is declared presumptively dead

a. Mode 1: Contracting subsequent marriage

Elements of the offense:

1) That the offender has been legally married;

2) That the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code;

3) That he or she contracts a second or subsequent marriage; and

4) That the second or subsequent marriage has all the essential requisites for validity. (Lasanas v. People, G.R. No. 19031, June 23, 2014, Per Bersamin, J.)

1) Element 1: Previously legally married

The offender has to be previously legally married to be liable for bigamy. The very essence of bigamy is contracting a second or subsequent marriage where, in truth and in fact, the first marriage is still subsisting.

2) Element 2: Prior subsisting marriage or not presumed dead

That the first/previous marriage is still subsisting may be due to either of the following:

1) That the it was not legally dissolved; or

2) That the absent spouse has not been presumed dead in accordance with the Civil Code.

a) Parties cannot judge nullity of marriage

What makes a person criminally liable for bigamy is when he contracts a second or subsequent marriage during the subsistence of a valid marriage.39 Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration, the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy. (People v. Otduhan, G.R. No. 191566, July 17, 2013, Per Peralta, J.)

3) Element 3: Subsequent marriage

The offender contracting a second/subsequent marriage while the first one is still subsisting is the gravamen of the offense of bigamy. What makes bigamy is exactly this element. Thus, in addition to the earlier principle that the parties cannot judge the nullity of marriage, it has been repeatedly held in several Supreme Court Decisions that a declaration of nullity should first be obtained to ensure proper dissolution of the prior marriage.

a) Declaration of nullity, not required

[A]rticle 40 of the Family Code does not categorically withhold from the accused the right to invoke the defense of a void ab initio marriage even without a judicial decree of absolute nullity in criminal prosecution for bigamy. To adopt a contrary stringent application would defy the principle that penal laws are strictly construed against the State and liberally in favor of the accused. Granted, the State has the right to preserve and protect the sanctity of marriage; this should not, however, be done at the expense of the presumption of innocence of the accused. What is penalized under Article 349 of the RPC is the act of contracting a subsequent marriage while the prior marriage was valid and subsisting. This simply connotes that this provision penalizes contracting of a voidable or valid marriage and not a void ab initio marriage. (Pulido v. People, En Banc, G.R. No. 220149, July 27, 2021, Per Hernando, J.)

Nothing in Article 40 mentions the effect thereof on the criminal liability of the accused in bigamy cases. It would indeed be unfair to withhold from the accused in a bigamy case the right and the opportunity to raise the defense of nullity of a void ab initio marriage when the law does not explicitly say so. Thus, to borrow Justice Caguioa’ s opinion, even with the enactment of Article 40, a void ab initio marriage remains a valid defense in bigamy, and a prior and separate judicial declaration of absolute nullity is not indispensable to establish the same. (Ibid.)

Pulido v. People, En Banc, G.R. No. 220149, July 27, 2021, Per Hernando, J.:

• [P]ulido’s first marriage with Arcon was contracted in 1983 or before the effectivity of the Family Code while his second marriage with Baleda was celebrated in 1995, during the effectivity of the said law. Pulido assails the retroactive application of Article 40 of the Family Code on his case which requires him to obtain a judicial declaration of absolute nullity before he can contract another marriage.

• When the prior marriage was contracted prior to the effectivity of the Family Code while the subsequent marriage was contracted during the effectivity of the said law, we recognize the retroactive application of Article 40 of the Family Code but only insofar as it does not prejudice or impair vested or acquired rights.

• Applying the foregoing jurisprudence and keeping in mind its purpose, we hold that Article 40 has retroactive application on marriages contracted prior to the effectivity of the Family Code but only for the purpose of remarriage, as the parties are not permitted to judge for themselves the nullity of their marriage. In other words, in order to remarry, a judicial declaration of nullity is required for prior marriages contracted before the effectivity of the Family Code. Without a judicial declaration of absolute nullity of the first marriage having been obtained, the second marriage is rendered void ab initio even though the first marriage is also considered void ab initio. The only basis for establishing the validity of the second marriage is the judicial decree of nullity of the first marriage.

• However, in a criminal prosecution for bigamy, the parties may still raise the defense of a void ab initio marriage even without obtaining a judicial declaration of absolute nullity if the first marriage was celebrated before the effectivity of the Family Code. Such is still governed by the rulings in Mendoza, Aragon and Odayat which are more in line with the rule that procedural rules are only given retroactive effect insofar as they do not prejudice or impair vested or acquired rights.

• In this case, Pulido’s marriage with Arcon was celebrated when the Civil Code was in effect while his subsequent marriage with Baleda was contracted during the effectivity of the Family Code. Hence, Pulido is required to obtain a judicial decree of absolute nullity of his prior void ab initio marriage but only for purposes of remarriage. As regards the bigamy case, however, Pulido may raise the defense of a void ab initio marriage even without obtaining a judicial declaration of absolute nullity.

• After a careful consideration, this Court is constrained to abandon our earlier rulings that a judicial declaration of absolute nullity of the first, and/or second marriages cannot be raised as a defense by the accused in a criminal prosecution for bigamy. We hold that a judicial declaration of absolute nullity is not necessary to prove a void ab initio prior and subsequent marriages in a bigamy case. Consequently, a judicial declaration of absolute nullity of the first and/or second marriages presented by the accused in the prosecution for bigamy is a valid defense, irrespective of the time within which they are secured.

• The aforesaid conclusion is anchored on and justified by the retroactive effects of a void ab initio marriage, the legislative intent of Article 40 of the Family Code and the fundamental, rules of construction governing penal laws.

• Clearly, when the first marriage is void ab initio, one of the essential elements of bigamy is absent, i.e. a prior valid marriage. There can be no crime when the very act which was penalized by the law, i.e. contracting another marriage during the subsistence of a prior legal or valid marriage, is not present. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to begin with. Thus, an accused in a bigamy case should be allowed to raise the defense of a prior void ab initio marriage through competent evidence other than the judicial decree of nullity.

• Apropos, with the retroactive effects of a void ab initio marriage, there is nothing to annul nor dissolve as the judicial declaration of nullity merely confirms the inexistence of such marriage. Thus, the second element of bigamy, i.e. that the former marriage has not been legally dissolved or annulled, is wanting in case of void ab initio prior marriage. What Article 349 of the RPC contemplates is contracting a subsequent marriage when a voidable or valid first marriage is still subsisting. As expounded by Associate Justice Estela M. Perlas-Bernabe, Article 349 of the RPC was patterned after the Codigo Penal, which was enacted when the law governing marriages was the Spanish Civil Code of 1889, which provides that marriages may be dissolved either through annulment or divorce. The term “former marriage”, therefore, in the second element of bigamy refers to voidable or valid marriages which may be dissolved by annulment or divorce, respectively. Hence, Article 349 should be construed to pertain only to valid and voidable marriages.

• In effect, when the accused contracts a second marriage without having the first marriage dissolved or annulled, the crime of bigamy is consummated as the valid or voidable first marriage still subsists without a decree of annulment by a competent court, In contrast, when the first marriage is void ab initio, the accused cannot be held liable for bigamy as the judicial declaration of its nullity is not tantamount to annulment nor dissolution but merely a declaration of a status or condition that no such marriage exists.

• In the same manner, when the accused contracts a second or subsequent marriage that is void ab initio, other than it being bigamous, he/she cannot be held liable for bigamy as the effect of a void marriage signifies that the accused has not entered into a second or subsequent marriage, being inexistent from the beginning. Thus, the element, “that he or she contracts a second or subsequent marriage” is lacking. A subsequent judicial declaration of nullity of the second marriage merely confirms its inexistence and shall not render the accused liable for bigamy for entering such void marriage while the first marriage still subsists. Consequently, the accused in bigamy may validly raise a void ab initio second or subsequent marriage even without a judicial declaration of nullity.

• True, a marriage is presumed to be valid even if the same is void ab initio without a judicial declaration of its absolute nullity in view of Article 40 of the Family Code. However, the accused in a bigamy case should not be denied the right to interpose the defense of a void ab initio marriage, which effectively retroacts to the date of the celebration of the first marriage.

4) Element 4: Subsequent marriage has all essential requisites

The fourth element is specific in stating that the second/subsequent marriage has all the essential requisites for validity because, if the bigamy is proven, the second/subsequent marriage would then be void. Thus, the fourth element is in fact stating that the marriage does not have to be valid (because it is the logical consequence of bigamy); rather, it only needs that all of the essential requisites for validity are present (without going so far as to say that it has to be a valid marriage).

It is vital in the prosecution for bigamy that the alleged second marriage, having all the essential requirements, would be valid were it not for the subsistence of the first marriage. (Pulido v. People, En Banc, G.R. No. 220149, July 27, 2021, Per Hernando, J.)

Lasanas v. People, G.R. No. 19031, June 23, 2014, Per Bersamin, J.:

• The CA specifically observed:

This Court concedes that the marriage between accused-appellant Lasanas and private complainant Patingo was void because of the absence of a marriage license or of an affidavit of cohabitation. The ratificatory religious wedding ceremony could not have validated the void marriage. Neither can the church wedding be treated as a marriage in itself for to do so, all the essential and formal requisites of a valid marriage should be present. One of these requisites is a valid marriage license except in those instances when this requirement may be excused. There having been no marriage license nor affidavit of cohabitation presented to the priest who presided over the religious rites, the religious wedding cannot be treated as a valid marriage in itself.

But then, as the law and jurisprudence say, [accused] should have first secured a judicial declaration of the nullity of his void marriage to private complainant Patingo before marrying Josefa Eslaban. Actually, he did just that but after his marriage to [J.] Eslaban. Consequently, he violated the law on bigamy.

• Accused’s reliance on the cases of People v. Mendoza, 95 Phil. 845 and People v. Aragon, 100 Phil. 1033 is misplaced because the ruling in these cases have already been abandoned per Relova v. Landico, supra, and Wiegel v. Sempio-Diy, 143 SCRA 499. The petitioner also cited Yap v. Court of Appeals, 145 SCRA 229 which resurrected the Aragon and Mendoza doctrine but Yap’s ruling too had been overtaken by Art. 40 of the Family Code and by Domingo v. Court of Appeals and Te v. Court of Appeals, supra.

• Based on the findings of the CA, this case has all the foregoing elements attendant.

• The first and second elements of bigamy were present in view of the absence of a judicial declaration of nullity of marriage between the accused and Socorro. The requirement of securing a judicial declaration of nullity of marriage prior to contracting a subsequent marriage is found in Article 40 of the Family Code, to wit:

Article 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n)

• [T]he accused’s conviction for bigamy is affirmed. The crime of bigamy was consummated from the moment he contracted the second marriage without his marriage to Socorro being first judicially declared null and void, because at the time of the celebration of the second marriage, his marriage to Socorro was still deemed valid and subsisting due to such marriage not being yet declared null and void by a court of competent jurisdiction.

3. Things to note

The following are some additional things to note about this offense.

a. Rationale

The rationale for prosecuting an individual who contracted a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead, is to preserve and ensure the juridical tie of marriage established by law. (Pulido v. People, supra.)

b. Good faith, not a defense

[An accused’s] defense of good faith… is unavailing. (Lasanas v. People, supra.)

c. Marriage license issues

That the marriage license for the first marriage could not be located by the Local Civil Register does not make it void. This was made clear in the case of Vitangcol v. People, to wit:

Vitangcol v. People, G.R. No. 207406, January 13, 2016, Per Leonen, J.:

• The prosecution allegedly fails to prove the validity of his first marriage with Gina because the civil registrar of the municipality where they were married had no record of the marriage license allegedly issued in their favor.

• Contrary to [the accused’s] claim, all the elements of bigamy are present in this case. [The accused] was still legally married to Gina when he married Alice. Thus, the trial court correctly convicted him of the crime charged.

• Based on the marriage contract presented in evidence, [the accused’s] first marriage was solemnized on July 17, 1987. This was before the Family Code of the Philippines became effective on August 3,1988. Consequently, provisions of the Civil Code of the Philippines govern the validity of his first marriage.

• To prove that a marriage was solemnized without a marriage license, “the law requires that the absence of such marriage license must be apparent on the marriage contract, or at the very least, supported by a certification from the local civil registrar that no such marriage license was issued to the parties.”

• [The accused’s] presents a Certification from the Office of the Civil Registrar of Imus, Cavite, which states:

[A]fter a diligent search on the files of Registry Book on Application for Marriage License and License Issuance available in this office, no record could be found on the alleged issuance of this office of Marriage License No. 8683519 in favor of MR. NORBERTO A. VITANGCOL and MS. GINA M. GAERLAN dated July 17, 1987.

• This Certification does not prove that [the accused’s] first marriage was solemnized without a marriage license. It does not categorically state that Marriage License No. 8683519 does not exist.

• Moreover, [the accused] admitted the authenticity of his signature appearing on the marriage contract between him and his first wife, Gina. The marriage contract between [the accused] and Gina is a positive piece of evidence as to the existence of [the accused’s] first marriage. This “should be given greater credence than documents testifying merely as to [the] absence of any record of the marriage[.]”

• Republic v. Court of Appeals and Castro was originally an action for the declaration of nullity of a marriage. As part of its evidence, the plaintiff presented a certification that states that the marriage license “cannot be located as said license… does not appear from [the local civil registrar’s] records.”

• This court held that “[t]he certification… enjoys probative value, [the local civil registrar] being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license.”

• This court further said that “[u]naccompanied by any circumstance of suspicion and pursuant to Section 29, Rule 132 of the Rules of Court, a certificate of ‘due search and inability to find’ sufficiently proved that [the local civil registrar] did not issue [a] marriage license… to the contracting parties.”

• The circumstances in Castro and in this case are different. Castro involved a civil case for declaration of nullity of marriage that does not involve the possible loss of liberty. The certification in Castro was unaccompanied by any circumstance of suspicion, there being no prosecution for bigamy involved. On the other hand, the present case involves a criminal prosecution for bigamy. To our mind, this is a circumstance of suspicion, the Certification having been issued to Norberto for him to evade conviction for bigamy.

• The appreciation of the probative value of the certification cannot be divorced from the purpose of its presentation, the cause of action in the case, and the context of the presentation of the certification in relation to the other evidence presented in the case. We are not prepared to establish a doctrine that a certification that a marriage license cannot be found may substitute for a definite statement that no such license existed or was issued. Definitely, the Office of the Civil Registrar of Imus, Cavite should be fully aware of the repercussions of those words. That the license now cannot be found is not basis per se to say that it could not have been issued.

• A different view would undermine the stability of our legal order insofar as marriages are concerned. Marriage licenses may be conveniently lost due to negligence or consideration. The motivation to do this becomes greatest when the benefit is to evade prosecution.

• This case is likewise different from Nicdao Cariño v. Yee Cariño. In Cariño, the marriage contract between Santiago Cariño and his first wife, Susan Nicdao, bore no marriage license number  In addition, the local civil registrar certified that it has no record of any marriage license issued to [S.] Cariño and [S.] Nicdao. This court declared [S.] Cariño’s first marriage void for having been solemnized without a marriage license.

• In this case, there is a marriage contract indicating the presence of a marriage license number freely and voluntarily signed and attested to by the parties to the marriage as well as by their solemnizing officer. The first marriage was celebrated on July 17, 1987. The second marriage was entered into on December 4, 1994. Within a span of seven (7) years, four (4) months, and 17 (seventeen) days, [the accused] did not procure a judicial declaration of the nullity of his first marriage. Even while the bigamy case was pending, no decision declaring the first marriage as spurious was presented. In other words, [the accused’s] belief that there was no marriage license is rendered untrue by his own actuations.

• This factual context makes the use and issuance of the Certification from the Office of the Civil Registrar suspect. The prosecution has to prove that despite the existence of a valid first marriage, [the accused] nevertheless contracted a second or subsequent marriage. The admission of a marriage contract with proof of its authenticity and due execution suffices to discharge the burden of proving beyond reasonable doubt that a prior marriage exists. The burden of evidence will, thus, pass on to the defense. Mere presentation of a certification from the civil registrar that the marriage license cannot be found is not enough to discharge the burden of proving that no such marriage license was issued.

d. Marriage certificate

3A. Procedural

a. Nullity of first marriage immaterial facts alleged in Information

[T]he issue on the declaration of nullity of the marriage between [the accused] and respondent only after the latter contracted the subsequent marriage is, therefore, immaterial for the purpose of establishing that the facts alleged in the information for Bigamy… Following the same rationale, neither may such defense be interposed by the respondent in his motion to quash by way of exception to the established rule that facts contrary to the allegations in the information are matters of defense which may be raised only during the presentation of evidence. (Antone v. Beronilla, G.R. No. 183924, December 8, 2010, Per Perez, J.)

Jurisprudence is replete with cases holding that the accused may still be charged with the crime of bigamy, even if there is a subsequent declaration of the nullity of the second marriage, so long as the first marriage was still subsisting when the second marriage was celebrated. (Capili v. People, G.R. No. 183805, July 3, 2013, Per Peralta, J.)

Jarillo v. People, G.R. No. 164435, September 29, 2009, Per Del Castillo, J.:

• The subsequent judicial declaration of the nullity of the first marriage was immaterial because prior to the declaration of nullity, the crime had already been consummated. Moreover, [the accused’s] assertion would only delay the prosecution of bigamy cases considering that an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

• The outcome of the civil case for annulment of [the accused’s] marriage to [private complainant] had no bearing upon the determination of [the accused’s] innocence or guilt in the criminal case for bigamy, because all that is required for the charge of bigamy to prosper is that the first marriage be subsisting at the time the second marriage is contracted.

• Thus, under the law, a marriage, even one which is void or voidable, shall be deemed valid until declared otherwise in a judicial proceeding. In this case, even if [the accused] eventually obtained a declaration that his first marriage was void ab initio, the point is, both the first and the second marriage were subsisting before the first marriage was annulled.

• [The accused’s] conviction of the crime of bigamy must be affirmed. The subsequent judicial declaration of nullity of [the accused’s] two marriages to Alocillo cannot be considered a valid defense in the crime of bigamy. The moment [the accused] contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated because at the time of the celebration of the second marriage, [the accused’s] marriage to Alocillo, which had not yet been declared null and void by a court of competent jurisdiction, was deemed valid and subsisting. Neither would a judicial declaration of the nullity of [the accused] marriage to Uy make any difference. As held in Tenebro, “[s]ince a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. x x x A plain reading of [Article 349 of the Revised Penal Code], therefore, would indicate that the provision penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage.”

4. Distinguish from other offenses

This offense is distinguished from other offenses or crimes below.

a. Illegal marriages vs Bigamy

Pulido v. People, En Banc, G.R. No. 220149, July 27, 2021, Per Hernando, J.:

• We cannot simply disregard the effects of a void, ab initio marriage and penalize the accused, for bigamy despite the clear absence of a valid prior marriage on the mere speculation that this interpretation may be subject to abuse by those parties who deliberately and consciously enter into multiple marriages knowing them to be void and thereafter, evade prosecution on the pretext of a void ab initio marriage. It must be pointed out and emphasized that these deliberate acts are already penalized under Article 350 of the RPC…

Thus, the dilemma sought to be prevented as reflected in several cases is nothing more but a mere speculation and should not be considered sufficient ground to sustain the erroneous conclusion that to allow the accused to collaterally attack a void ab initio marriage in bigamy cases would render nugatory Article 349 of the RPC. To reiterate, Article 349 of the RPC penalizes parties who contracted a valid or voidable second marriage when the first marriage, which may be valid or voidable, is still subsisting. In contrast, Article 350 of the RPC penalizes those who without being included in Article 349, contract a marriage knowing that the requirements of the law have not been complied with or in disregard of a legal impediment.

Thus, an accused who contracts a void ab initio marriage may escape liability under Article 349 as it strictly encompasses valid or voidable first and second marriages. However, the accused in contracting a marriage knowing that the requirements of the law have not been complied with or in disregard of a legal impediment may be covered and penalized under Article 350 which addresses the predicament that to permit the accused to use the defense of a void ab initio marriage or to present a judicial declaration of nullity in criminal prosecution for bigamy would make a mockery of the sanctity of marriage by entering into multiple marriages knowing it to be void and thereafter escape punishment under Article 349.

Furthermore, it bears noting that in Tenebro,110 it was held that void ab initio marriages retroact to the date of the celebration of marriage but also produce legal effects and consequences111 as expressly provided under the statute such as on property relations, inheritance, donations, insurance beneficiary, legitimacy of children, custody of children, and support of common children. Tenebro included the incurring of criminal liability for bigamy as one of the legal effects and consequences despite the fact that there is no express, mention thereof in the Family Code or, any statute. It is, thus, supercilious to hold that these legal effects and consequences include incurring criminal liability for bigamy without violating a fundamental principle in criminal law, that is, penal statues are strictly construed against the State and in favor of the accused. To hold otherwise would amount to judicial legislation which is obviously proscribed.

References

• Title XII – Crimes Against the Civil Status of Persons, Act No. 3815, Revised Penal Code

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/Updated: May 20, 2023