Illegal marriages, A350 Revised Penal Code

Illegal marriages – refer to the offense of knowing contracting a marriage knowing of defects in the marriage.

1. Concept

Illegal marriages – refer to the offense of knowing contracting a marriage knowing of defects in the marriage.

a. Legal basis

ART. 350. Marriage contracted against provisions of laws. – The penalty of prision correccional in its medium and maximum periods shall be imposed upon any person who, without being included in the provisions of the next preceding article, shall contract, marriage knowing that the requirements of the law have not, been complied with or that the marriage is in disregard of a legal impediment.

If either of the contracting parties shall obtain the consent of the other by means of violence, intimidation, or fraud, he shall be punished by the maximum period of the penalty provided, in the next preceding paragraph.

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2. Modes of commission

The following are the modes of committing the offense:

1) Contracting an illegal marriage

a. Mode 1: Contracting an illegal marriage

Elements of the offense:

1) The offender contracts marriage; and

2) The offender knew either: (a) That the requirements of the law have not been complied with; or (b) That the marriage is in disregard of a legal impediment. (REVISED PENAL CODE, Article 350)

a. Element 1: Contracting of marriage

The offender is required to be a contracting party to a marriage. Perforce, the solemnizing officers, witnesses, and third parties are excluded from the application of this article.

Nothing in the provisions limits the criminal liability to just one of the contracting parties to a marriage. Thus, it is possible to hold both contracting parties liable if they knew of the defect to their marriage.

There must be an actual marriage that was celebrated. The operative act herein is the celebration of a marriage which the offender/s knew to be defective.

1) Non-compliance with requirements

Under the Family Code, there are essential requisites and formal requisites for a valid marriage. What is punished herein is that, despite knowledge of the non-compliance with the requirements for a valid marriage, the offender proceeds to contract with the marriage.

The essential requisites for a marriage are:

1) Legal capacity of the contracting parties who must be a male and female; and

2) Consent freely given in the presence of the solemnizing officer. (FAMILY CODE, Article 3)

The formal requisites of a marriage are:

1) Authority of the solemnizing officer;

2) Valid marriage license except [for marriages not requiring a license under] Chapter 2 of Title I of the Family Code; and

3) Marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (Ibid., Article 3)

For more information, see: Chapter 1. Requisite of Marriage (Title I, Family Code)

2) Legal impediments

Similarly, disregarding legal impediments is an operative act in this article. The offender knows of a legal impediment and still decides to carry on the contracting of a marriage. These legal impediments may include non-dissolution of a prior marriage, no declaration of presumptive death for absentee-spouse, etc.

b. Element 2: Knowledge

The contracting of a marriage knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment is an act penalized by the Revised Penal Code. The legality of a marriage is a matter of law and every person is presumed to know the law. (Marbella-Bobis v. Bobis, G.R. No. 138509, July 31, 2000, Per Ynares-Santiago, J.)

Thus, the offender knows, either:

1) That the requirements of the law have not been complied with; or

2) That the marriage is in disregard of a legal impediment.

Thus, this knowledge constitute the malicious act on the part of the accused who knowingly and willfully contracted a marriage notwithstanding having knowledge of a defect in the marriage requirements.

Perfecto v. Esidera, A.M. No. RTJ-15-2417, July 22, 2015, Per Leonen, J.:

• [R]espondent judge may have disobeyed the law, particularly Article 350 of the Revised Penal Code, which prohibits knowingly contracting marriages against the provisions of laws. Article 350 of the Revised Penal Code…

• Respondent judge knew that the solemnizing officer during her and her husband’s marriage in 1990 had no civil authority to solemnize marriages. It is clear from her Comment that she and her husband’s only consideration for their 1990 marriage was the recognition from the Roman Catholic Church. She stated that:

Fr. David Tither had no license to solemnize marriage from the National Archives or from the civil government. Hence, he was not under obligation to register our marriage. It was a purely

sacramental marriage rite, without legal effect but definitely valid and recognized by the Roman Catholic Church. It is called “matrimoña de conciencia.”

• However, Article 350 may be of doubtful constitutionality when applied to religious exercise and expression insofar as it prescribes upon individuals and religious communities formal requirements for the conduct of their religious ceremonies. It puts a burden upon the exercise of beliefs by criminalizing marriages performed in accordance with those beliefs, but lacks some or all the requisites of a valid marriage under the law. These requirements include not only age and consent, but also formal requisites such as marriage license and civil authority of the solemnizing officer even though violence, fraud, or intimidation was not present under the circumstances. It may, therefore, limit religious exercise and expression to the formalities of law.

• Thus, unless respondent judge’s act of participating in a marriage ceremony according to her religious beliefs violates other peoples’ rights or poses grave and imminent danger to the society, we cannot rule that respondent judge is administratively liable for her participation in her religious marriage ceremony.

3. Things to note

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

a. Moral turpitude

Where an accused was convicted with violating Article 350 on illegal marriages, it was held that such an offense “is immoral. He made mockery of marriage which is a sacred institution demanding respect and dignity. His conviction in the criminal case involves moral turpitude. The act of respondent in contracting the second marriage (even his act in making love to another woman while his first wife is still alive and their marriage still valid and existing) is contrary to honesty, justice, decency, and morality.” (In Re Charges of Villasanta, En Banc, April 30, 1957, Per Paras, C.J.)

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