Atienza v.

Brillantes:
Under the Family Code, there must be a judicial declaration of the nullity of a previous marriage before a
party thereto can enter into a second marriage. Article 40 of said Code provides:
The absolute nullity of a previous marriage may be invoked for the purposes of remarriage on the basis
solely of a final judgment declaring such previous marriage void.
Respondent argues that the provision of Article 40 of the Family Code does not apply to him considering
that his first marriage took place in 1965 and was governed by the Civil Code of the Philippines; while
the second marriage took place in 1991 and governed by the Family Code.
Article 40 is applicable to remarriages entered into after the effectivity of the Family Code on August 3,
1988 regardless of the date of the first marriage. Besides, under Article 256 of the Family Code, said
Article is given "retroactive effect insofar as it does not prejudice or impair vested or acquired rights in
accordance with the Civil Code or other laws." This is particularly true with Article 40, which is a rule of
procedure. Respondent has not shown any vested right that was impaired by the application of Article
40 to his case.
YAP v. CA
Maning Yap, during his lifetime married twice: first, to Talina Bianong in 1939 and second, to Nancy Yap
on December 11, 1948.
The petitioners now contend that Maning Yap died in 1964 when the New Civil Code had already
superceded the old Spanish Civil Code. They state that pursuant to Article 2263 of the New Civil Code,
the distribution of the estate of Maning Yap should be in accordance with, the new codal provisions and
not the Leyes Partidas, which is an old law no longer applicable.
There is no dispute that the marriage of Talina Bianong to Maning Yap was valid and that the second
marriage contracted by the latter with Nancy Yap was illegal and void pursuant to Act 3613 of the
Philippine Legislature, the Marriage Law which was in force when the two marriages were celebrated to
SEC. 29. Illegal Marriages. Any marriage subsequently contracted by any person during the lifetime of
the first spouse of such person with any person other than such first spouse shall be illegal and void from
its performance, unless;
(a)

The first marriage was annulled or dissolved;

(b)
The first spouse had been absent for seven consecutive years at the time of the second marriage
without the spouse present having news of the absentee being alive, or the absentee being generally
considered as dead and believed to be so by the spouse present at the time of contracting such
subsequent marriage, the marriage so contracted being valid in either case until declared null and void
by a competent court.

DOMINGO v. CA
Seeks reversal of CA's ruling finding no grave abuse of discretion in the lower court's order denying
petitioner's motion to dismiss the petition for declaration of nullity of marriage and separation of
property
On May 29, 1991, private respondent Delia filed a petition before the Regional Trial Court of Pasig
entitled "Declaration of Nullity of Marriage and Separation of Property" against petitioner Roberto
Domingo. The petition alleged among others that: they were married on November 29, 1976 at the
YMCA Youth Center Bldg.; unknown to her, he had a previous marriage with one Emerlina dela Paz on
April 25, 1969 which marriage is valid and still existing; she came to know of the prior marriage only
sometime in 1983 when Emerlina sued them for bigamy.
ISSUE/S:
1. Whether or not a petition for judicial declaration of a void marriage is necessary. If in the affirmative,
whether the same should be filed only for purposes of remarriage;
2. Whether or not SP No. 1989-J is the proper remedy of private respondent to recover certain real and
personal properties allegedly belonging to her exclusively.
That Article 40 as finally formulated included the significant clause denotes that such final judgment
declaring the previous marriage void need not be obtained only for purposes of remarriage.
Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity
of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation,
partition, distribution and separation of property between the erstwhile spouses, as well as an action for
the custody and support of their common children and the delivery of the latters' presumptive legitimes.
Based on the foregoing provisions (Art.43), private respondent's ultimate prayer for separation of
property will simply be one of the necessary consequences of the judicial declaration of absolute nullity
of their marriage. Thus, petitioner's suggestion that in order for their properties to be separated, an
ordinary civil action has to be instituted for that purpose is baseless. The Family Code has clearly
provided the effects of the declaration of nullity of marriage, one of which is the separation of property
according to the regime of property relations governing them.

BOBIS v. BOBIS
On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B. Javier. Without
said marriage having been annulled, nullified or terminated, the same respondent contracted a second
marriage with petitioner Imelda Marbella-Bobis on January 25, 1996; and allegedly a third marriage with
a certain Julia Sally Hernandez.

Hence, parties should not be permitted to judge for themselves the nullity of their marriage, for the
same must be submitted to the determination of competent courts. 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. No matter how obvious, manifest or patent the absence of an
element is, the intervention of the courts must always be resorted to. That is why Article 40 of the
Family Code requires a "final judgment," which only the courts can render. Thus, as ruled in Landicho v.
Relova,14 he who contracts a second marriage before the judicial declaration of nullity of the first
marriage assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not
be suspended on the ground of the pendency of a civil case for declaration of nullity. In a recent case for
concubinage, we held that the pendency of a civil case for declaration of nullity of marriage is not a
prejudicial question. This ruling applies here by analogy since both crimes presuppose the subsistence of
a marriage.
As respondent did not obtain the judicial declaration of nullity when he entered into the second
marriage, why should he be allowed to belatedly obtain that judicial declaration in order to delay his
criminal prosecution and subsequently defeat it by his own disobedience of the law? If he wants to raise
the nullity of the previous marriage, he can do it as a matter of defense when he presents his evidence
during the trial proper in the criminal case.
It should be stressed that not every defense raised in the civil action may be used as a prejudicial
question to obtain the suspension of the criminal action. The lower court, therefore, erred in suspending
the criminal case for bigamy.
Per current jurisprudence, a marriage though void still needs a judicial declaration of such fact before
any party can marry again; otherwise the second marriage will also be void.19 The reason is that,
without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. In the case at
bar, respondent was for all legal intents and purposes regarded as a married man at the time he
contracted his second marriage with petitioner.
MERCADO v TAN
Petitioner contends, however, that he obtained a judicial declaration of nullity of his first marriage
under Article 36 of the Family Code, thereby rendering it void ab initio. Unlike voidable marriages which
are considered valid until set aside by a competent court, he argues that a void marriage is deemed
never to have taken place at all.8 Thus, he concludes that there is no first marriage to speak of.
Petitioner also quotes the commentaries9 of former Justice Luis Reyes that "it is now settled that if the
first marriage is void from the beginning, it is a defense in a bigamy charge. But if the first marriage is
voidable, it is not a defense."
Tan contends that declaration came after the Information was filed.
Court held the prevailing doctrine which held that a judicial declaration of nullity must first be obtained
before the subsequent marriage.

Dissent J. Vitug:
Surely, the foregoing provision ( Art. 349, RPC) contemplated an existing, not void, prior marriage.
Covered by article 349 would thus be, for instance, a voidable marriage, it obviously being valid and
subsisting until set aside by a competent court.
Unlike a voidable marriage which legally exists until judicially annulled (and therefore not a defense in
bigamy if the second marriage were contracted prior to the decree of annulment), the complete nullity,
however, of a previously contracted marriage, being a total nullity and inexistent, should be capable of
being independently raised by way of a defense in a criminal case for bigamy. I see no incongruence
between this rule in criminal law and that of the Family Code, and each may be applied within the
respective spheres of governance.
TY v. CA
Whether the decree of nullity of the first marriage is required before a subsequent marriage can be
entered into validly?
It does not say, however, that a second marriage may proceed even without a judicial decree. While it is
true that if a marriage is null and void, ab initio, there is in fact no subsisting marriage, we are unwilling
to rule that the matter of whether a marriage is valid or not is for each married spouse to determine for
himself for this would be the consequence of allowing a spouse to proceed to a second marriage even
before a competent court issues a judicial decree of nullity of his first marriage.
Aragon and Mendoza rulings no longer control.
However, a recent case applied the old rule because of the peculiar circumstances of the case. In Apiag
v. Cantero, (1997)24 the first wife charged a municipal trial judge of immorality for entering into a
second marriage. The judge claimed that his first marriage was void since he was merely forced into
marrying his first wife whom he got pregnant. On the issue of nullity of the first marriage, we applied
Odayat, Mendoza and Aragon. We held that since the second marriage took place and all the children
thereunder were born before the promulgation of Wiegel and the effectivity of the Family Code, there is
no need for a judicial declaration of nullity of the first marriage pursuant to prevailing jurisprudence at
that time.
Similarly, in the present case, the second marriage of private respondent was entered into in 1979,
before Wiegel. At that time, the prevailing rule was found in Odayat, Mendoza and Aragon. The first
marriage of private respondent being void for lack of license and consent, there was no need for judicial
declaration of its nullity before he could contract a second marriage. In this case, therefore, we conclude
that private respondents second marriage to petitioner is valid.
Old license used in civil ceremony also used in church ceremony. Meets the requisite for marriage
license.

CARINO V CARINO
Validity of the two marriages contracted by the deceased SPO4 Santiago S. Cario, whose death
benefits is now the subject of the controversy between the two Susans whom he married.
1969- Nicdao; 1992-Yee
At the death of Carino, both were able to secure benefits: Nicdao (146K) Yee (21K). Yee filed for action
to collect from Nicdao, praying for half of the benefits she got. Contests that their marriage was not
valid because of lack of license.
Accordingly, the declaration in the instant case of nullity of the previous marriage of the deceased and
petitioner Susan Nicdao does not validate the second marriage of the deceased with respondent Susan
Yee. The fact remains that their marriage was solemnized without first obtaining a judicial decree
declaring the marriage of petitioner Susan Nicdao and the deceased void. Hence, the marriage of
respondent Susan Yee and the deceased is, likewise, void ab initio.
Yee: Actual joint contribution; since marriage is bigamous, she does not get any benefits.
Nicdao: Art. 147 is controlling. Since their union was not barred by any impediment, but is considered
void for other reasons (absence of marriage license)
-Owned by both parties in equal shares even if only one contributed to it. Since Nicdao didnt
have BF, she gets . ( similar to co-ownership)

MORIGO v. PEOPLE
The first element of bigamy as a crime requires that the accused must have been legally married. But in
this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first
marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the
two were never married "from the beginning." The contract of marriage is null; it bears no legal effect.
Taking this argument to its logical conclusion, for legal purposes, petitioner was not married to Lucia at
the time he contracted the marriage with Maria Jececha. 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 speak of. The petitioner, must, perforce
be acquitted of the instant charge.

TENEBRO v. CA
Since 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.
Pertinently, Article 349 of the Revised Penal Code criminalizes "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". A plain reading of the law, therefore, would indicate that the provision penalizes the mere
act of contracting a second or a subsequent marriage during the subsistence of a valid marriage.
There is therefore a recognition written into the law itself that such a marriage, although void ab initio,
may still produce legal consequences. Among these legal consequences is incurring criminal liability for
bigamy. To hold otherwise would render the States penal laws on bigamy completely nugatory, and
allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to
thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless
women with the promise of futurity and commitment.
Under Article 349 of the Revised Penal Code, the elements of the crime of Bigamy are:
(1) that the offender has been legally married;
(2) that the first 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 contracts a second or subsequent marriage; and
(4) that the second or subsequent marriage has all the essential requisites for validity.

JARILLO v. PEOPLE
Petitioner is moving for reconsideration of the Decision, arguing that since petitioner's marriages were
entered into before the effectivity of the Family Code, then the applicable law is Section 29 of the
Marriage Law (Act 3613), instead of Article 40 of the Family Code, which requires a final judgment
declaring the previous marriage void before a person may contract a subsequent marriage. DENIED.
As far back as 1995, in Atienza v. Brillantes, Jr., the Court already made the declaration that Article 40,
which is a rule of procedure, should be applied retroactively because Article 256 of the Family Code
itself provides that said "Code shall have retroactive effect insofar as it does not prejudice or impair
vested or acquired rights.
Clear intent is to obtain a judicial declaration of nullity of his first marriage and thereafter to invoke that
very same judgment to prevent his prosecution for bigamy. He cannot have his cake and eat it too.
Otherwise, all that an adventurous bigamist has to do is disregard Article 40 of the Family Code, contract
a subsequent marriage and escape a bigamy charge by simply claiming that the first marriage is void and
that the subsequent marriage is equally void for lack of a prior judicial declaration of nullity of the first.
DISSENT J. CARPIO:

The first three elements reiterate the language of the law. The last element, the validity of the second
marriage except for the existence of the first marriage, necessarily follows from the language of the law
that the offender contracts a second or subsequent marriage.
If the second marriage is void ab initio on grounds other than the existence of the first marriage, then
legally there exists no second marriage. Article 35 of the Family Code enumerates the marriages that are
void from the beginning. The succeeding article, Article 36, declares that a marriage contracted by one
psychologically incapacitated shall likewise be void. Article 1409 of the Civil Code declares inexistent
and void from the beginning contracts expressly x x x declared void by law. Thus, a marriage
contracted by one psychologically incapacitated at the time of the marriage is legally inexistent and
void from the beginning. Such void marriage cannot constitute a second marriage to sustain a
conviction for bigamy under Article 349 of the Revised Penal Code.
If the second marriage is void solely because of the existence of the first marriage, the nullity of the
second marriage proceeds from its illegality or bigamous nature. However, if the second marriage is void
on grounds other than the existence of the first marriage, the nullity does not proceed from its illegality
or bigamous nature. The first situation results in the crime of bigamy while the second does not. This is
clear from Article 1411 of the Civil Code which provides:
Article 1411. When the nullity proceeds from the illegality of the cause or object of the contract, and the
act constitutes a criminal act, both parties being in pari delicto, they shall have no action against each
other, and both shall be prosecuted. x x x.
Article 349 of the Revised Penal Code does not state that it is immaterial whether the second marriage is
valid or void ab initio. This Article does not also state that the mere act of celebration of the second
marriage, while the first marriage subsists, constitutes the crime of bigamy. Article 349 speaks of a
second or subsequent marriage which, as commonly understood and applied consistently by the
Court, means a valid second marriage were it not for the existence of the first marriage.
To hold that the validity of the second marriage is immaterial, as the majority opinion so holds, would
interpret Article 349 too liberally in favor of the State and too strictly against the accused. This violates
the well-settled principle of statutory construction that the Court declared in People v. Garcia:8
MONTANEZ v. CIPRIANO
In this case, it appears that when respondent contracted a second marriage with Silverio in 1983, her
first marriage with Socrates celebrated in 1976 was still subsisting as the same had not yet been
annulled or declared void by a competent authority. Thus, all the elements of bigamy were alleged in
the Information.
Whether the declaration of nullity of respondent's first marriage justifies the dismissal of the
Information for bigamy filed against her.
Respondent claims that Tenebro v. CA is not applicable, since the declaration of nullity of the previous
marriage came after the filing of the Information, unlike in this case where the declaration was rendered

before the information was filed. We do not agree. What makes a person criminally liable for bigamy is
when he contracts a second or subsequent marriage during the subsistence of a valid marriage.

ART. 41: Cases:

REPUBLIC v. NOLASCO:
In the case at bar, the Court considers that the investigation allegedly conducted by respondent in his
attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a reasonable
or well-founded belief that she was already dead. When he arrived in San Jose, Antique after learning of
14
Janet Monica's departure, instead of seeking the help of local authorities or of the British Embassy, he
secured another seaman's contract and went to London, a vast city of many millions of inhabitants, to
look for her there.
Q After arriving here in San Jose, Antique, did you exert efforts to inquire
the whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?
A I secured another contract with the ship and we had a trip to London
and I went to London to look for her I could not find her (sic).
Respondent's testimony, however, showed that he confused London for Liverpool and this casts doubt on
his supposed efforts to locate his wife in England. The Court of Appeal's justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily know the geographical difference
between London and Liverpool, for a humble seaman like Gregorio the two places could
mean one place in England, the port where his ship docked and where he found
Janet. Our own provincial folks, every time they leave home to visit relatives in Pasay
City, Kalookan City, or Paraaque, would announce to friends and relatives, "We're going
to Manila." This apparent error in naming of places of destination does not appear to be
fatal.

REPUBLIC v. CA:
The OSG filed a petition for review on certiorari of the CAs decision alleging that respondent Alan B.
Alegro failed to prove that he had a well-founded belief that Lea was already dead.23 It averred that the
respondent failed to exercise reasonable and diligent efforts to locate his wife. The respondent even
admitted that Leas father told him on February 14, 1995 that Lea had been to their house but left
without notice. The OSG pointed out that the respondent reported his wifes disappearance to the local
police and also to the NBI only after the petitioner filed a motion to dismiss the petition. The petitioner
avers that, as gleaned from the evidence, the respondent did not really want to find and locate Lea.

In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration of
presumptive death of ones spouse, the degree of due diligence set by this Honorable Court in the
above-mentioned cases in locating the whereabouts of a missing spouse must be strictly complied with.
There have been times when Article 41 of the Family Code had been resorted to by parties wishing to
remarry knowing fully well that their alleged missing spouses are alive and well. It is even possible that
those who cannot have their marriages x x x declared null and void under Article 36 of the Family Code
resort to Article 41 of the Family Code for relief because of the x x x summary nature of its proceedings.
In this case, the respondent failed to present a witness other than Barangay Captain Juan Magat. The
respondent even failed to present Janeth Bautista or Nelson Abaenza or any other person from whom
he allegedly made inquiries about Lea to corroborate his testimony. On the other hand, the respondent
admitted that when he returned to the house of his parents-in-law on February 14, 1995, his father-inlaw told him that Lea had just been there but that she left without notice.

VALDEZ v. REPUBLICCivil Code, not Family Code prevails

For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially
declared an absentee. The declaration of absence made in accordance with the provisions of the Civil
Code has for its sole purpose to enable the taking of the necessary precautions for the administration of
the estate of the absentee. For the celebration of civil marriage, however, the law only requires that
the former spouse has been absent for seven consecutive years at the time of the second marriage,
that the spouse present does not know his or her former spouse to be living, that such former spouse
is generally reputed to be dead and the spouse present so believes at the time of the celebration of
the marriage.
From the foregoing, it can be gleaned that, under the Civil Code, the presumption of death is established
by law and no court declaration is needed for the presumption to arise. Since death is presumed to have
taken place by the seventh year of absence, Sofio is to be presumed dead starting October 1982.
Consequently, at the time of petitioners marriage to Virgilio (1985), there existed no impediment to
petitioners capacity to marry, and the marriage is valid under paragraph 2 of Article 83 of the Civil Code.
Further, considering that it is the Civil Code that applies, proof of "well-founded belief" is not required.
Petitioner could not have been expected to comply with this requirement since the Family Code was not
yet in effect at the time of her marriage to Virgilio. The enactment of the Family Code in 1988 does not
change this conclusion.
In sum, we hold that the Petition must be dismissed since no decree on the presumption of Sofios death
can be granted under the Civil Code, the same presumption having arisen by operation of law. However,
we declare that petitioner was capacitated to marry Virgilio at the time their marriage was celebrated in
1985 and, therefore, the said marriage is legal and valid.

REPUBLIC v. CANTOR:
Appeal not allowed in summary proceeding. Use Certiorari to attack the judgment
Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code which it
superseded, imposes a stricter standard. It requires a "well-founded belief " that the absentee is already
dead before a petition for declaration of presumptive death can be granted. We have had occasion to
make the same observation in Republic v. Nolasco, where we noted the crucial differences between
Article 41 of the Family Code and Article 83 of the Civil Code, to wit:
a. Time shortened from 7yrs to 4yrs;
b. Present well-founded belief of death; CC only needed no news about spouse being alive;
c. Need for judicial declaration to enable spouse to remarry;
Well-founded belief measured on case to case basis.
The belief of the present spouse must be the result of proper and honest to goodness inquiries and
efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still alive or
is already dead. Whether or not the spouse present acted on a well-founded belief of death of the
absent spouse depends upon the inquiries to be drawn from a great many circumstances occurring
before and after the disappearance of the absent spouse and the nature and extent of the inquiries
made by [the] present spouse.
Strict standard approach is consistent with State policy to protect and strengthen marriage; for benefit
of present spouse from a criminal prosecution of bigamy under Article 349 of the Revised Penal Code
which might come into play if he/she would prematurely remarry sans the court's declaration.