Mercado vs Tan

Art. 40 of the Family Code

Facts: accused-petitioner Dr. Vincent Mercado and complainant-respondent Ma. Consuelo Tan
got married on June 27, 1991 before Judge Gorgonio J. Ibanez [by reason of] which a marriage
contract was duly executed and signed by the parties. As entered in said document, the status of
the accused (now petitioner) was single. There is not dispute either that at the time of the
celebration of the wedding with Consuelo Tan, Dr. Mercado was actually wedlock with Ma.
Thelma Oliva in a marriage ceremony solemnized on April 1976 by Judge Leonardo B Canares,
Cebu City per marriage certificate was further blessed by Rev. Father Baur in October 1976. In
the same manner, the marriage between Mercado and Tan was confirmed in a church ceremony
on June 1991. Both marriages were consummated. On October 1992, A bigamy case was then
filed by the complainant Tan then on November 1992, accused filed an action for declaration of
Nullity of Marriage between him and Thelma Oliva and in a Decision dated May 6, 1993 the
marriage between Vincent C Mercado and Ma Thelma Oliva was declared null and void. The
RTC nonetheless find the accused Dr. Vincent Mercado guilty of the crime Bigamy.
Petitioner, however, contends that he obtained judicial declaration of nullity of his first marriage
under Art. 36 of the Family Code, thereby rendering it void ab initio. He argues that a void
marriage is deemed never to have taken place at all. Thus, he concludes that there is no first
marriage to speak of.
Respondent, on the other hand, admits that the first marriage was declared null and void under
Art. 36 of the Family Code, but she points out that the declaration came after the information had
already been filed. Hence, by then, the crime had already been consummated. She argues that a
judicial declaration of a void marriage must be obtained before a person marry for a subsequent
time.
Issue: WON a Judicial declaration of Nullity of Marriage necessary before contracting into a
subsequent marriage
Held: The Supreme Court ruled in favor of the respondent under Article 40 of the Family Code
which provides that a judicial declaration of nullity of a precious marriage is necessary before a
subsequent one can be legally contracted. One who enters into a subsequent marriage without
first obtaining such judicial declaration is guilty of bigamy. This principle applies even if the
earlier union is characterized by statues as void. The judicial declaration of the first marriage is
essential to determine whether or not the person who contracted into a subsequent marriage is
legally free to enter into such marriage; hence, it is observed that the second marriage that is
contracted without a judicial declaration that the first marriage was void, was bigamous and
criminal in character.