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To: Donio Mercado

From:Neldon Jay F. Verzosa

Date: January 6, 2015

Case: People v. Beru

Re: Void Marriage without prior judicial declaration of nullity defense in a

criminal case of bigamy.

Statement of the Assignment

The primary question in this case is whether or not a simulated

marriage contracted by a man and woman for purposes of discouraging and
preventinganother woman allegedly impregnated by the man in pursuing
him and if prior marriage which is void ab initio by reason of the lack of one
of the essential and some or all of the formal requisites in marriage without
prior judicial declaration of the nullity of such marriage can be a valid
defense to exonerate an accused in a bigamy charge.

Statement of Facts

Owen, the complainant, and Beru, the accused, have been married
since 2005. Owen is a seafarer. He works as a chief mate in an oil tanker. By
the nature of his work, he is away from his family around seven to nine
months in a year. Owen noticed that his wife was no longer as affectionate to
him as before. In September 2014, he discovered that his wife was seeing
another man and is previously married before she married him.

Consequently, last October 2014, Owen filed a bigamy case against

Beru,alleging that she is previously marriage with a man named Lando in
2002 before she married him in 2005. Attached in his complaint was a copy
of the marriage contract between his wife, Beru, and Lando which he
secured from the National Statistics Office. Furthermore, he alleged that her
marriage with Lando was never annulled nor declared void.

Beru, the wife, admit that she was in a relationship with Lando in
2002. At that time, she was 24 years of age. While being in that relationship,
Lando impregnated a woman named Corde. In order to discourage and
prevent Corde in pursuing Lando, he begged Beru to enter in to a simulated
marriage with him so that he can avoid Corde by deceiving her that he is
already married.Due to Lando’s pleadings and Beru’s affection towards him
at that time, she agreed to his will and as a result, a pretend marriage
ceremony was held. It was attended by their common friends and was
officiated by Lando’s Cousin who was a pastor. Afterwards, Lando and Beru
signed a simulated marriage contract. However, without the knowledge and
consent of Beru, Lando registered the said marriage contract. It was only
then, when Beru received the bigamy complaint of her husband, that she had
knowledge of the registration.

In 2004, realizing Lando’s infidelity, Beru finally broke up with him

because, again, he impregnated another woman. During following year, in
2005, that was the timeBeru met and married Owen.

However, in Beru’s narration of facts, the following were not stated:

(1) If she and Lando had secured a valid marriage license
before the celebration of the simulated marriage;
(2) What religious church or sect did the pastor belonged to
and;
(3) If either Beru or Lando belongs to the pastor’s church or
religious church.

These set of missing facts requires Beru’sclarification in order for us

to ascertain whether they could be raised as a valid contention in rendering
the marriage between Lando and Beru Void ab initio.

Issues:

1. Whether or not the accused is guilty of the crime of bigamy?

2. What is the accurate interpretation of Article 40 of the Family

Code in relation with Article 52 and 53 of the same code in
relation to bigamy as a criminal offense?

3. Assuming in argument that the correct interpretation of Article

40 of the Family Code in relation with Article 52 and 53 of the
same code in relation to bigamy as a criminal offense are the
contrary view of several authorities in Family Law and of
Justice Jose Vitug in his dissent in the of Mercado v. Tan, can
it be now a valid defense in a prosecution of a bigamy case.

4. Whether or not the marriage between Beru and Lando is Void

ab initio for the following reasons, to wit:

(a) Lack of the essential element in marriage which is

consent;
 (b) The absence of some or all of the formal
requirements of a valid marriage, which are,
namely: (1) Authority of the Solemnizing Officer;
(2) a valid marriage license except in the cases
provided for in Chapter 2 of the Family Code; and
(3) a 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.

Brief Answer

1. Yes. All the elements of the crime of bigamy are present. Therefore,
Beru is guilty of the crime of bigamy.

2. The correct interpretation is that there is a need for a prior judicial

declaration of nullity of a void marriage before it can be raised as a
valid defense in the crime of bigamy.

3. If the interpretation of Justice Jose Vitug in his dissent in the of

Mercado v. Tan and the opinion of several legal authorities in family
law is adopted by the SupremeCourt, a void marriage without prior
judicial declaration of its nullity can now be raised as a valid defense
in the crime of bigamy.

4. With regards to the lack of consent in relation to a simulated marriage,

yes, the marriage of Beru and Lando is Void abinito. On the other
hand, with regards to the lack of the formal requisites, it cannot be
further ascertained for we need the clarification of Beru.

Discussion/Analysis

1. Culpability for the crime of bigamy

The law on bigamy is found in Article 349 of the Revised Penal Code,
which provides:
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.

In the case of Lasanas v. People, G.R. No. 159031, June 23, 2014, to
be held guilty for the crime of bigamy, four essential elements should be
present, namely: (1) that the offender has been legally married; (2) that the
marriage has not been legally dissolved or, in cases 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.

The fact that the first marriage is void from the beginning is not a
defense in a bigamy charge (Mercado v. Tan, G.R. No. 137110, August 01,
2000), unless there has been a judicial declaration of nullity of their marriage
before contracting the second marriage. Thus, as ruled in Landicho v. Relova
(G.R. No. L-22579, February 23, 1968),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 Mercado v. Tan, (G.R. No. 137110, August 01, 2000, citing Reyes,
Revised Penal Code, Book Two, 13th ed. 1993, p.829), Justice Luis B. Reyes,
an authority in Criminal Law . . . wrote in 1993 that a person must first
obtain a judicial declaration of the nullity of a void marriage before
contracting a subsequent marriage:

"It is now settled that the fact that the first marriage is void from the
beginning is not a defense in a bigamy charge. As with a voidable
marriage, there must be a judicial declaration of the nullity of a marriage
before contracting the second marriage. Article 40 of the Family Code
states that . . . . The Code Commission believes that the parties to a
marriage should not be allowed to assume that their marriage is void, even
if such is the fact, but must first secure a judicial declaration of nullity of
their marriage before they should be allowed to marry again. . . . ."|||

In People v. Odtuhan(G.R. No. 191566, July 17, 2013, 701 SCRA

506), 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.

Professor Melencio S.Sta Maria, an authority in Family Law, in his

book, citing Mercado v. Tan, explains the prevailing rule with regards to the
need of prior judicial declaration of the nullity of the marriage to be a valid
defense in criminal bigamy. However, he points out a strong emphasis on the
accurate interpretation of Article 40 of the New Civil Code in relation to
Article 52 and 53 of the same code in connection with criminal bigamy. He
opines that the correct interpretation of Article 40 of the New Civil Code in
relation to Article 52 and 53 of the same code in connection with criminal
bigamy is the one mentioned in the dissenting opinion of Justice Jose Vitug
in the case of Mercado v. Tan and in the case of People v. Cobar, CA-G.R.
No. 19344, decided by the Court of Appeals which is in congruence with the
dissenting opinion of Justice Vitug. Thus:

“. . .the Supreme Court held that the criminal offense of bigamy is

committed for as long as a subsequent marriage was contracted by a
person without him or her obtaining a judicial declaration of nullity of his
or her first marriage pursuant to Article 40 of the Family Code. The
Supreme Court did not find it material to focus on the nullity of the first
marriage but instead merely reasoned that, for as long as Article 40 of the
Family Code was not complied with, the subsequent marriage will always
be criminally bigamous. Hence, the ruling, in effect, states, that criminal
bigamy is determined not by the fact that the first marriage is really legally
void but by the fact that no judicial declaration of nullity of the first
marriage was obtained prior to the subsequent marriage. This decision is
the subject of a strong dissenting opinion of Associate Justice Jose Vitug.
He stated that the criminal law on bigamy contemplated an existing
marriage or at least an annullable or voidable one but not a null and void
one. When the criminal law on bigamy referred to a “legally dissolved”
marriage, it clearly contemplates a marriage which is at least annullable or
voidable but not void. He observed that, it has been a sound rule in
criminal law that a void marriage is a defense in criminal bigamy case
regardless of whether or not a judicial declaration of its nullity has been
obtained. This is so because the criminal law on bigamy, as explained by
the Supreme Court in the case of People v. Aragon, 100 Phil. 1033, does
not require a judicial declaration of nullity in order to set up the defense of
the nullity marriage in cases of criminal bigamy. He stated that the total
nullity and inexistence of a void marriage “should be capable of being
independently raised by way of a defense in a criminal case for bigamy.”
He observes that there is “no incongruence between this rule in criminal
law and of the Family Code and each may be applied within the respective
spheres of governance.”

The dissenting opinion of Associate Justice Jose Vitug in the

Mercado case appears to be the correct rule. While the accused may have
violated Article 40 of the Family Code, such violation is not a bar in
invoking the nullity of the first marriage because Article 40 merely aims to
put certainty as to the void status of the subsequent marriage and is not
aimed as a provision to define bigamy under the Family Code or criminal
bigamy under the Revised Penal Code. The only effect of the non-
observance of Article 40 is to make the subsequent marriage void pursuant
to Article 52 and 53.

Relevantly, in an earlier case entitled People v. Cobar, CA-G.R.

No. 19344, November 10, 1997, the court of Appeals had occasion to
discuss the crime of bigamy and article 40, which is in consonance with
the opinion of Justice Jose Vitug. (Sta. Maria, Persons and Family
Relations, 5th ed., 2010, p. 268)

Note however, the humble opinion and obsevation of Former Dean

Alex Monteclar, another authority in Family Law, inrelation with the
difference between the case of Mercado v. Tan and Morigo v. People with
regards to the absence of the corresponding formal requirement in marriage
in the respective cases, which provides:
 “. . . In Mercado v. Tan, the first marriage was void because of the
absence of a marriage license. In the Morigo case, the first marriage was
void because of the absence of marriage ceremony. However, in the
Mercado case, the Court ruled that there is a need for the judicial
declaration of nullity of the first marriage; otherwise, the accused
may be convicted of bigamy. But, in the Morigo case, the Court said
there is no need to have the first marriage declared void as in the eyes
of the law, the marriage never existed. What then is the difference
between the two? The observation of this author is that if the nullity of
marriage is anchored on the absence of marriage ceremony, then it is as if
no marriage took place or that there is no marriage at all. However, if the
nullity is based on the absence of a valid marriage license, there exists a
marriage but it is void. In other words, what is contemplated by Article 40
of the Family Code as the void marriage that must be declared void first
before one can contract a subsequent marriage is one that must exist
although it is void.” (Monteclar, Compedium on the Law on Persons and
Family Relations, 2012, p.)

2. Voidness of the Marriage

Every intendment of the law leans to matrimony. When amarriage has

been shown in evidence, whether regular or irregular, and whatever the
form of the proofs, the law raises a strong presumption of its legality — not
only casting the burden of proof on the party objecting, but requiring him
throughout, in every particular, to make plain, against the constant
pressure of this presumption, the truth of law and fact that it is illegal
and void. (Son Cui v. Guepangco y Lim, G.R. No. 6163, March 14,
1912).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. 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. (Marbella-Bobis v. Bobis, G.R. No.
138509, July 31, 2000.

According to Article 4 of the Family Code of the Philippines, a

marriage is considered as void ab initio if any of the essential or formal
requisites are absent.

The essential requisites of marriage, provided by Article 2 of the

Family Code are, namely: (1) the legal capacity of the contracting parties
who must be a male and female; and (2) the consent freely given in the
presence of the solemnizing officer. It has been held that in order for there to
be consent in marriage, two requirements must be present, namely; (1) that it
must be freely given and (2) the same must be made in the presence of the
solemnizing officer. Such consent must embody a declaration that both
parties will take each other as husband and wife pursuant to Article 6 of the
Family Code. In Teter v. Teter, 101 Ind. 129 (1885); cited in Sta. Maria,
Persons and Family Relations, 5th ed., 2010, p. 121, free consent connotes
that the contracting parties willingly and deliberately entered into the
marriage. It signifies that, at the time of the marriage ceremony, they were
capable of intelligently understanding the nature and consequences of the
act. Absence of consent makes the marriage void ab initio. Evidently, the
accused, Beru, in agreeing with the plea of Lando, did not desire or intended
to be bound by the marriage agreement with Lando and produce any legal
effect or in any way alter the juridical situation of them. Therefore, one of
the essential element for marriage, consent, is absent.

Article 1345 of the New Civil Code provides that a simulation of a

contract may be absolute or relative. Absolute simulation takes place when
the parties to the contract do not intend to be bound at all. Relative
simulation on the other hand takes place when the parties conceal their true
agreement. In absolute simulation, there is a colorable contract but it has no
substance as the parties have no intention to be bound by it. The main
characteristic of an absolute simulation is that the apparent contract is not
really desired or intended to produce legal effect or in any way alter the
juridical situation of the parties (Valerio v. Refresca, G.R. No. 163687,
March 28, 2006, 485 SCRA 494, 500-501.) An absolutely simulated or
fictitious contract is void (Art. 1346 of the New Civil Code). This provision
of the New Civil Code is appliessuppletorily to the Family Code by virtue of
Article 18 of the New Civil Code since the Family Code is silent on the
matter of simulation of marriage. Therefore, the simulated marriage entered
into by the accused, Beru with her former lover, is void. The facts of this
case evidently shows that the accused Beru did not desire or intended to be
bound by the marriage agreement with Lando and produce any legal effect
or in any way alter the juridical situation of them.

The formal requisites provided by Article 3 of the Family Code on the

other hand are, namely: (1) the authority of the solemnizing officer; (2) a
valid marriage license except in cases provided for in Chapter 2 of the
Family Code; and (3) a 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.

With respect to the solemnizing officer, such must be one of the

officers expressly allowed to solemnize marriages in Article 7 of the Family
Code, namely: (1) any incumbent member of the judiciary within the court’s
jurisdiction; (2) any priest, rabbi, imam or minister of any church or
religious sect duly authorized by his church or religious sect and registered
with the civil registrar in general, acting within the limits of the written
authority granted by him by his church or religious sect and provided that at
least one of the contracting parties belongs to the solemnizing officer’s
church or religious sect; (3) any ship captain or airplane chief only in the
cases mentioned in Art 31 of the same code; (4) Any military commander of
a unit to which a chaplain is assigned, in the absence of the latter, during a
military operation, likewise only in the cases mentioned in Article 32 of the
same code; or (5) any consul-general, consul, or vice-consul in the case
provided in Article 10 of the same code, otherwise, such marriage is void
from the very beginning.

Conclusion

1. Culpability for the crime of bigamy

In relation with the facts of the case with the above cited legal
provisions of the law and rulings of the Supreme Court, it can be gleaned
upon that it is relatively difficult to draw upon the defense of the voidness of
the accused’s marriage with Lando because there was no prior judicial
declaration of the nullity of the purported marriage. Since all of the elements
of the crime of bigamy are present. Hence, Beru is guilty of the crime of
bigamy.

However, the dissenting opinion made by Associate Justice Jose Vitug

in the case of Mercado v. Tan, wherein, he affirms that no judicial
declaration is needed for a Void ab initio marriage to be raised as a valid
defense in the criminal liability of bigamy, can be contended in court as the
accurate interpretation of Article 40 of the Family Code in relation with
Article 52 and 53 thereof. As a consequence, if such contrary interpretation
is adopted by the Supreme Court, a void ab initio marriage without a prior
judicial declaration of its nullity can now be raised as a valid defense against
the crime of bigamy.

Note however the opinion Dean Monteclarthat if the defect of the

formal requirement is the absence of marriage ceremony, notwithstanding
the absence of the judicial declaration of the nullity of the marriage, such
void marriage can be raised as a valid defense in the crime of bigamy. If
such view is adopted by the supreme court, this can be another point to be
raised as a defense in the case at hand.

2. Voidness of the Marriage

Following herein are the several points in contending that the

marriage of Beru with Lando is void ab initio.

First: Absolute simulated contract is void

Again, there is simulation if the apparent contract is not really desired

or intended to produce legal effect or in any way alter the juridical situation
of the parties. As a result, an absolutely simulated or fictitious contract is
void. From the facts that Beru have conveyed, it can be ascertained that she
only entered into that agreement with Lando, because of her deep affection
towards him. It can be pointed out that she did not desired or intended to be
lawfully wedded to Lando. Hence, the purported marriage between Beru and
Lando is void ab initio.
 Second: Absence of Consent

With regards to the essential requisite of marriage, consent is absent.

Consent in marriage, as mentioned earlier, requires to be made in the
presence of the solemnizing officer and is freely made declaring that both
parties would take each other as husband and wife. From the facts that Beru
have narrated, there is no iota of evidence that she consented to be lawfully
wedded taking Lando as her lawfully wedded husband. She only consented
to enter into such a predicament to enable Lando to escape bondage with
Corde by reason of her love and affection at that time. Hence, we can
contend that her marriage to Lando is void from the beginning because there
is absence of consent.

Third: Absence of Authority of the Solemnizing Officer

With regards to the formal requisites, first, we’ll delve upon the
authority of the solemnizing officer. As a general rule, it is presumed that the
solemnizing officer has the authority to solemnize marriage unless and until
it is proven otherwise.

Persons who are authorized to solemnize marriages are enumerated in

Article 7 of the Family Code which is mentioned above. From the facts that
you have presented, your case falls squarely in Article 7, Paragraph 2 of the
said code which states: any priest, rabbi, imam or minister of any church or
religious sect duly authorized by his church or religious sect and registered
with the civil registrar in general, acting within the limits of the written
authority granted by him by his church or religious sect and provided that at
least one of the contracting parties belongs to the solemnizing officer’s
church or religious sect. Since the solemnizing officer of Beru’s marriage
with Lando was a pastor, in order to declare that such pastor was without
authority to officiate marriages, it is necessary to know, (1) what is the
religious church or sect of the pastor; (2) if such pastor is duly authorized by
his church or religious sect to officiate marriages and is registered with the
civil registrar in general; (3) if he acted within the limits of the written
authority granted by him by his church or religious sect; and lastly (4) if
either Beru or Lando belongs to the pastor’s church or religious sect.

Therefore, we need to ascertain such missing facts in order to contend

that Beru’s marriage with Lando is void ab initio on the ground that the
Pastor had no authority to officiate such marriage.

Fourth: Absence of a Valid Marriage License

The second formal requirement for a valid marriage is a valid

marriage license. As a rule, every party must secure a valid marriage license
from the Office of the Local Civil Registrar of the place where either of the
parties resides in order to be validly married. However, there are instances
where no valid marriage is required, even so, from the facts presented;Beru’s
case does not fall upon any of the exceptions. Therefore, in order for us to
contend that her marriage with Lando is void from the beginning, we must
ascertain such fact, for it was not stated in her narration.

Fifth: Absence of a Valid Marriage Ceremony

Lastly, the third formal requirement for a valid marriage is a valid

marriage ceremony.

For a marriage ceremony to be valid pursuant to Article 3, paragraph 3

of the Family Code, it must take 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.

In relation with consent, as mentioned above, there must be a

declaration of both parties in a marriage that they take each other as husband
and wife in the presence of not less than two witnesses of legal age. Since
we concluded earlier that there is absence of consent, therefore, Beru’s
marriage with Lando is Void ab initio for there is absence of a valid marriage
ceremony.

Recommendation

If, after, we can prove that Beru’s marriage with Lando is void form
the very beginning, here comes now the most crucial part in this case,
arguing that the correct interpretation of Article 40 in relation with Article 52
and 53 of the Family Code is the contrary view of Justice Vitug embodied in
his dissent in the case of Mercado v. Tan. If ever such view is adopted by the
Supreme Court, a previous void abintio marriage without the benefit of
judicial declaration of its nullity can now be a valid defense for the criminal
offense of bigamy.

Since the ruling of the Supreme Court with regards to the need of
prior judicial declaration of a void marriage to be set-up as a defense in
bigamy cases have been consistently upheld in the past few years, it is
regrettable to assume that there is a slim chance of acquittal from the bigamy
case.

However, because of the novelty of the issue of this case stemming

from the good faith of the accused coupled by the peculiar facts and
circumstances present and with the argument presented by Justice Jose Vitug
in his dissenting opinion in the case of Mercado v. Tan and the varied
opinions of different legal authorities, this writer is in the humble opinion
that if ever there will be no reconciliation between the complainant and
accused, she should raise the argument of Justice Vitug and I am positive,
even if the chance is relatively small, that we can make a very compelling
case.
 As from the words of Justice Ricardo F. Francisco,“the Court, as the
highest court of the land, may be guided but is not controlled by
precedent. Thus, the Court . . . is not obliged to follow blindly a particular
decision that it determines, after re-examination, to call for a rectification.”