MEMORANDUM HEADING

TO: Senior Partner

FROM: Bea Vanessa S. Abella
DATE: April 16, 2019
RE: Beru vs. Owen- A Bigamy Case; Defense in Bigamy

STATEMENT OF THE ASSIGMENT
The case involves a complex situation wherein a married woman
was found by her husband to be previously married to another man
but the wife denies the allegation of her husband as she reasoned out
that the marriage that she contracted with another man was
“simulated”.
In this case at hand, the primary task to do is to determine if a
prior marriage that is void ab initio by reason of lack of an essential
and some formal requisites of marriage be a valid reason to dismiss a
bigamy case even without a judicial declaration for the nullity of a
prior marriage.
FACTS
Beru got married in the year 2012 with her husband, Owen. In
2018, Owen filed a complaint for bigamy against Beru. Own claimed
that Beru contracted a prior marriage in 2010 with a man named
Lando. Beru denied her estranged husband’s allegations. She
admitted, however, that she was a party to a simulated marriage in
2012 with her first boyfriend, Lando. The reason was that Lando at that
time impregnated another woman named Corde. In order to
discourage Corde from pursuing him, Lando convinced Beru to sign a
marriage contract for the purpose of only showing to Corde that he
was married already. Beru said that there was not even a marriage
ceremony that took palce, and that she and Lando did not even live
together as husband and wife after they signed the simulated contract.
It was only after the bigamy complaint was filed in court when Beru
discovered that Lando registered the simulated marriage contract
without her knowledge, much less consent.

ISSUE/QUESTION PRESENTED
1. Whether, under our Revised Penal Code, Beru actually
committed the crime of bigamy when she contracted a
subsequent marriage with Owen?
2. Whether, under our Civil Code, Beru actually committed the
crime of bigamy when she contracted a subsequent marriage

1
 with Owen without having a judicial declaration of nullity of
a previous marriage with Lando?
3. What does Article 40 of the Family Code interpret in relation
with Articles 52 and 53 of the same code in connection with a
criminal offense of bigamy?
4. Whether, under our Civil Code, the marriage of Beru and
Lando is void ab initio due to lack of essential requisite of
marriage, which is a consent that is freely given by a party,
and some formal requisite such as authority of solemnizing
officer, a valid marriage license, and a marriage ceremony
with the presence of both the contracting parties?
5. Does the fact that Beru only knew recently that her prior
simulated marriage was actually registered by Lando
tantamount to her acting in good faith when she contracted
her subsequent marriage with Owen?

BRIEF ANSWER
1. No. Beru is not guilty of criminal bigamy as the first marriage
was not a valid or at least annullable, but was actually void.
2. Yes. Beru is guilty of bigamy as she was not able to comply with
the requisites that the law requires for one to be able to contract
a subsequent valid marriage.
3. Article 40 says that if a marriage between two contracting parties
is void ab initio, any one of them cannot contract a subsequent
valid marriage without a previous judicial declaration of nullity
of the previous void marriage. A subsequent marriage without
such judicial declaration of nullity of the previous void marriage
is in itself void ab initio in accordance with Articles 40, 52 and
53. 1
4. Yes. On the matter of the lack of essential requisite, it is evident
that the marriage is void ab initio since the consent that was
obtained from Beru was not freely given by her. On the matter
of lack of some or all formal requisite, as per statement of Beru,
the marriage was indeed void ab initio since there was no
marriage ceremony but this needs to be ascertained further.
5. No. When a person marries another without a marriage license
or one that is spurious, marriage is void regardless of her bad
faith or good faith2. Therefore, it also immaterial to determine
whether Beru was in bad faith or good faith as she knew for
herself that she contracted a simulated marriage with Lando.

1 Sta. Maria, Melencio S., Jr. (2015), Persons and Family Relations Law,
Quezon City, Philippines
2
Ibid.

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 DISCUSSION/ANALYSIS
The simulated marriage that Beru contracted with another man
before she married her husband, Lando, tantamounts to her
committing bigamy.

Bigamy as a Criminal Offense

The crime of bigamy under our penal law is committed by any
person who contracts a subsequent marriage before the previous
marriage has been legally dissolved or annulled, or before the absent
spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceeding3. To dissect further the elements of
a criminal bigamy it must have the following ingredients: 1) the
offender must have been legally married, 2) the marriage has not been
legally dissolved or in case his or her spouse is absent, the absentee
spouse could not yet be presumed dead, 3) the offender contracts a
subsequent marriage, and 4) the subsequent marriage has all the
essential requisites of a valid marriage4.
By “legally dissolved” it means that the former marriage is valid
or voidable or at least annullable. Therefore, in criminal law, a void
previous marriage is considered to be a defense in a criminal bigamy
case regardless there has been a judicial declaration of nullity of a
previous marriage has been obtained. It has been said that a judicial
declaration is immaterial in a criminal bigamy case. Meaning to say,
under our criminal law, there can be no bigamy if the previous
marriage is a void one because there can be no marriage to speak of in
the first place. There can only be bigamy when the previous marriage
was voidable or annullable and a subsequent marriage was entered
into by a party without having the previous one dissolved.
However, in the case of Mercado vs. Mercado, 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
obtaining a judicial declaration of nullity of one’s first marriage
pursuant to Article 40 of the Family Code5. This decision was strongly
dissented by Associate Justice Jose Vitug. He stated that what the
criminal law contemplates as criminal bigamy is an existing valid
marriage or at least voidable but not a null and void one. And it is clear
that the dissenting opinion of Justice Vitug appears to be the correct

3 Article 349 of the Revised Penal Code of the Philippines
4
Lasanas vs. People, G.R. No. 159031, June 23, 2014
5
Mercado vs. Mercado, G.R. No. 137110, August 1, 2000, 337 SCRA
122

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one as such violation of Article 40 of the Family Code is not a bar for a
party to invoke the nullity of voidness of the previous marriage.
Analyzing the peculiar facts of this case to the above-mentioned
legal and factual standards, it would seem that there could be no
bigamy case. What our Revised Penal Code contemplates with bigamy
is there should be an existence of a previous valid marriage. In the case
at bar, the marriage of Beru and Lando could not be considered valid
as there are absences of essential and formal requisites of marriages.
To wit:
A. Essential Requisite:
1. Absence of a freely given consent in the presence of
the solemnizing officer
B. Formal Requisite:
1. Absence of the authority of a solemnizing officer
2. A valid marriage license
3. A marriage ceremony which takes place in the
appearance of the contracting parties before a
solemnizing officer
However, numbers 1 and 2 under the formal requisites are not
stated by Beru’s narration of facts. These must still be ascertained
further in order to validly declare that the marriage of Beru and Lando
is indeed void ab initio.
But it must be noted further that Article 4 of the Family Code
states that the absence of any of the essential or formal requisites shall
render the marriage void ab initio, except as stated in Article 35(a). This
then proves that the marriage of Beru and Lando is void ab initio and
there could be no criminal case of bigamy.
Article 35, paragraph a of the Family Code states that:
“[t]he following marriages shall be void from the
beginning:
(a). Those contracted by any party below eighteen
years of age even with the consent of parents of
guardians
Bigamy and the Family Code
Article 40 of the Family Code states that:
“[t]he 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.”

4
 With this, it can be inferred that there is a need for a judicial
declaration of nullity of a void marriage only for the purpose of
remarriage. Furthermore, the aim of Article 40 for requiring such
declaration is to do away with any continuing uncertainty on the status
of the second marriage6.
The Family Law Revision Committee and the Civil Code
Revision Committee which drafted what is now the Family Code of
the Philippines took the position that parties to a marriage should not
be allowed to assume that their marriage is void even if such be the
fact but must first secure a judicial declaration of the nullity of their
marriage before they can be allowed to marry again7. It is very clear
that the purpose of securing the judicial declaration of nullity of
previous marriage is for remarriage. Therefore, the only acceptable
proof of nullity of a first marriage is a judicial declaration of nullity. A
declaration of the absolute nullity is now explicitly required either as
a cause of action or a ground for defense.
If the first marriage is indeed void and a party to that first
marriage subsequently remarries without obtaining a judicial
declaration of nullity of the previous marriage, it is clear that the
subsequent marriage is also void for the reason that it failed to comply
with the requirement under Article 40 in relation to Articles 52 and 53
of the Family Code.
Article 52 of the Family Code states that:
“[t]he judgment of annulment or of absolute nullity of the
marriage, the partition and distribution of the properties of
the spouses and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry
and registries of property; otherwise, the same shall not
affect third persons.”
Article 53 of the Family Code states that:
“[e]ither of the former spouses may marry again after
compliance with the requirements of the immediately
preceding Article; otherwise, the subsequent marriage
shall be null and void.”
However, in the case of Nicdao Cariño vs. Cariño, the Supreme
Court decided while acknowledging that the previous marriage was
void for having been solemnized without a marriage license,
nevertheless stated that the subsequent marriage of one of the parties
was bigamous because the first marriage, though void, was still

6
Valdes vs. RTC, 72 SCAD 967, 260 SCRA 221
7
Domingo vs. Court of Appeals, 44 SCAD 955, 226 SCRA 572

5
presumed to be valid considering that there was no judicial declaration
of nullity of the first marriage8. This decision created a confusion for
there seems to be no more space for distinction between Articles 40
and 41 of the Family Code. However, it is submitted that despite the
decision of the Supreme Court in the case of Cariño, the basic
difference between Articles 40 and 41 shall subsist.
Article 41 of the Family Code states that:
“[a] marriage contracted by any person during subsistence
of a previous marriage shall be null and void, unless before
the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years and the
spouse present has a well-founded belief that the absent
spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth
in the provisions of Article 391 of the Civil Code, an
absence of only two years shall be sufficient. For the
purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute a
summary proceeding as provided in this Code for the
declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent
spouse.”
In the civil aspect, there could only be a case of bigamy when a
party who was previously married subsequently contracted another
marriage without having obtained a judicial declaration of nullity of
marriage as a proof that the previous marriage was indeed dissolved
or annulled or even void ab initio. If there is no judicial declaration of
nullity of marriage secured by a party, it would appear that there are
two marriages that subsists and this could be a clear case of bigamy.
In the case at bar, Beru admitted to the fact that she was a party
to a simulated marriage with her ex-boyfriend, Lando, in order to
discourage a woman, who was impregnated by Lando, to pursue him
as he was said to be married to Beru. Beru claimed that she was just
influenced or convinced by Lando to do so, thereby implying that she
did not freely gave her consent. Believing that Lando would not
register the simulated marriage to the Civil Registrar, Beru married
Owen subsequently. Thereafter, Owen found out that Beru has a
record of a previous marriage with Lando. He then filed a bigamy case
against Beru.
Matching the facts of the case to Article 40 in relation to Articles
52 and 23 of the Family Code, it would appear that Beru indeed had

8
Nicdao Cariño vs. Cariño, G.R. No. 132529, February 2, 2001

6
two records of marriage contracts in the Civil Registrar. As the
previous marriage had been registered, it would appear to Owen that
the marriage was valid. In such case, it would appear that in order for
the marriage of Beru and Owen to be valid, she must have secured a
judicial declaration of nullity of marriage.

CONCLUSION
A Simulated Marriage is a Void Marriage
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 a
contract do not intend to be bound at all. Whereas, a
relative simulation 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 parties.”9
In support of this, Article 1346 of the New Civil Code provides
that an absolute simulated contract is void. With this we can infer that
indeed the marriage of Beru with Lando was void, meaning there was
no marriage to speak of in the first place. It was clear from the facts of
the case as well that Beru never intended to be legally married with
Lando and produce any legal effect. Furthermore, even if there was
indeed a marriage that existed between Beru and Lando, some
essential and formal requisites of marriage are absent, thereby making
such marriage void ab initio. One of the very important requisites of
marriage is consent and with the simulated marriage, it is very clear
that the a freely given consent was never given by Beru as she was
convinced by Lando only.
We could have a strong case in using these defenses as it is very
clear that from these points, there was no marriage to speak of in the
first place. It is as if Beru and Lando were never married with each
other. In fact, in the case of Sally Go-Bangayan vs. Benjamin Bangayan,
Jr., the Supreme Court held decided that there could be of no bigamous
marriage since the marriage of Sally and Benjamin is of a simulated
character. The Supreme Court stated that:

9Valerio bs. Refresca, G.R. No. 163687, March 28, 2006, SCRA 494,
500-501

7
 “[t]he marriage between Benjamin and Sally was not
bigamous. The trial court ruled that the second marriage
was void not because of the existence of the first marriage
but because of other causes, particularly, the lack of a
marriage license. Hence, bigamy was not committed in this
case.”10

The Need of a Judicial Declaration of Nullity of a Former Marriage

But it is important to note what Professior Melencio Sta. Maria

commented on his Persons and Family Relation Law book that even if the
former marriage was indeed void and thereafter a party contracts a
subsequent marriage without having obtained a judicial declaration of
nullity of marriage, it is clear that the subsequent marriage is also void
for having not complied with the requirements of Article 40 in relation
to Articles 52 and 53 of the Family Code.

From this point, we could have a weak case as it is clear that the
belief of the parties to a previous marriage that was simulated is
immaterial in determining the validity of the subsequent marriage. No
matter how Beru would assert that there was no marriage to speak of
as it was a simulated, therefore a null and void marriage. As the
Supreme Court decided in the case of People vs. Odtuhan:

“[p]arties 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 that marriage exists.11”

It could be inferred from this that if one contracts a subsequent

marriage without having obtained a judicial declaration of nullity of a
previous marriage assumes the risk of being prosecuted for bigamy.

In several cases, the Supreme Court has been consistent in ruling

that a judicial declaration of nullity of marriage is essential as it is the
court that determines the validity or nullity of a marriage. This is also
for the purpose that when a party contracts a subsequent marriage,
that person has a proof of his or her legal capacity to enter into such
marriage, as there is no legal impediment. Matching the legal and

10
Sally Go-Bangayan vs. Benjamin Bangayan, Jr., G.R. No. 201061,
July 3, 2013
11 People vs. Odtuhan, G.R. No. 191566, July 17, 2013, 701 SCRA 506

8
factual standards of this case, it is regrettable that there could be a slim
chance of winning this case in favor of Beru.

However, with the peculiarity and uniqueness of the facts of the

case, we can still push for the acquittal of Beru. We could contend that
she was in fact in good faith when she contracted her subsequent
marriage as she believed Lando not to register it to the Civil Registrar.
How can she ask the court for the judicial declaration of nullity of her
previous marriage as she believed it to be non-existent? Her good faith
could possibly make the Supreme Court make a consideration on her
part as she is also a victim in this case. Lando lied to her and defrauded
thereby causing her this trouble with her marriage with Owen.

The principle of stare decisis is well-respected as it promotes

stability in our country’s legal system but it is not that all the time that
such principle is followed because each case has its own peculiarity.
After all, our courts are not controlled by jurisprudence but they are
only guided by such. Therefore, we are still hopeful for the favorable
decision of the Court for this case.