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CONSTRUING BIGAMY AND ARTICLES 40 AND 41: WHAT WENT WRONG?
Bigamy will be discussed from three points of view: (1) where both marriages are valid in all aspects; (2) where thesecond marriage is void for reasons other than the existence of thefirst marriage; and (3) where thefirst marriage is void.
First, when both first and second marriages are valid—in the sense that all requisites are present and the first marriage has not ended in some manner—without any argument and clearly, there is bigamy.
Anent the second and third points of view, Section 29 of Marriage Law of 1929,[22] Article 83 of the New Civil Code,[23] and Article 41 of the Family Code[24] are very similar and relevant for discussion of the situation where the second marriage is void for reasons other than the existence of the first marriage. Based on this, the Supreme Court enumerated the elements of bigamy in Mercado v. Tan:[25]
- The offender has been legally married;
- The 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;
- He contracts a second or subsequent marriage; and
- The second or subsequent marriage has all the essential requisites for validity.[26]
According to Justice Carpio[27], the first three elements merely enumerate what has been provided for by the Revised Penal Code[28]; the last element necessarily follows from the language of the law that the offender contracts a “second or subsequent marriage.”[29] Otherwise stated, it is essential that, for a person to have committed the crime of bigamy, he must have contracted a second marriage that would have been valid (i.e., possessed all the essential requisites of a marriage) had the first (also valid) marriage not existed.
Article 35 of the Family Code provides in part that void marriages are those bigamous or polygamous marriages not falling under Article 41 of the Family Code.[30] What this means is that if the person who contracted the second marriage did not institute a summary proceeding for the declaration of presumptive death of his first spouse, then the second marriage would be void for being bigamous. Under Article 41 of the Family Code, the presumption is that the first marriage is valid.
These principles of bigamous marriages, as embodied in our civil and criminal laws, have been muddled by the Supreme Court in various cases, includingTenebro v. CA[31]. In this case, Veronico Tenebro married Leticia Ancajas in 1990. Soon after, Tenebro left Ancajas after he told her that in 1986 he was previously married to one Hilda Villareyes. Afterwards, Tenebro contracted a third marriage with a certain Nilda Villegas in 1993. Furious, Ancajas filed a complaint for bigamy against Tenebro. Both the lower court and the Court of Appeals found Tenebro guilty of the crime of bigamy.
On appeal to the Supreme Court, Tenebro alleged that a civil court had declared his marriage to Hilda Villareyes void ab initio due to the absence of a marriage ceremony and that the judicial declaration of the nullity of his marriage to Ancajas retroacted to the date on which it had been celebrated.
The Supreme Court held that 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. It further held that the Revised Penal Code penalizes the mere act of contracting a second or subsequent marriage during the subsistence of a valid marriage. The Supreme Court also ruled that a declaration of the nullity of the second marriage on the ground of psychological incapacity “is of absolutely no moment insofar as the State’s penal laws are concerned.”[32] Thus, the subsequent judicial declaration of the nullity of Tenebro’s second marriage is not a defense in avoiding criminal liability for bigamy.
And the question thus arises: Is psychological incapacity an element of legal capacity or of consent to marry? If it is neither, then the Supreme Court should have said that a marriage under Article 36 of the Family Code is more in the nature of a voidable marriage and thus, not a defense to bigamy.
Unfortunately, the Supreme Court did not utilize Article 41 of the Family Code in convicting Tenebro of bigamy. Instead, the Supreme Court based its bigamy conviction on Article 40 of the Family Code which states:
Art. 40. The 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.[33]
Why was Article 40 of the Family Code applied when the Supreme Court merely considers it as a rule of procedure? [34] What are the implications of the Tenebro ruling? As Justice Carpio pointed out in his dissenting opinion inTenebro:
- The mere act of entering into a second marriage contract while the first marriage subsists consummates the crime of bigamy, even if the second marriage were void ab initio on grounds other than the mere existence of the first marriage.[35]
- A marriage declared by law void ab initio and judicially confirmed void from the beginning, is deemed valid for the purpose of a criminal prosecution for bigamy.[36]
According to Justice Carpio, in so ruling, the majority opinion simply brushed aside the law and overturned 75 years of consistent rulings that if the second marriage were void on grounds other than the existence of the first marriage, there is no crime of bigamy. Justice Carpio reminded that, “It is an essential element of the crime of bigamy that the alleged second marriage, having all the essential requisites, would be valid were it not for the subsistence of the first marriage.”[37]
Article 41 of the Family Code, not Article 40, should have been the basis for convicting Tenebro. It should be reiterated that Article 40 of the Family Code is merely a rule of procedure.[38] It contemplates a situation of two void marriages: a prior existing void marriage and a second marriage that would have been valid had there not been a prior void marriage.
To illustrate Article 40 of the Family Code, the Supreme Court consistently cites the case of Wiegel v. Sempio-Diy.[39] Here, Karl Wiegel sought the declaration of nullity of his marriage to Lilia Wiegel, which was celebrated in 1978, on the ground of Lilia’s previous existing marriage to a certain Eduardo Maxion, which was celebrated in 1972. While admitting that her marriage to Maxion existed, Lilia claimed it to be null and void because they were allegedly forced to enter the marital union. Contesting the validity of the pre-trial court order, Lilia asked that she be able to present evidence before the court not only that the first marriage was vitiated by force, but also to prove that Maxion was already married to somebody else at the time she married him. Judge Sempio-Diy did not allow the presentation of evidence since the existence of force exerted on both parties of the first marriage had already been agreed upon at pre-trial. On a side note, the question also begs itself: is it really possible under Article 48 of the Family Code[40] and its predecessors to stipulate on the ground for nullity of a marriage?
In upholding Sempio-Diy’s order, the Supreme Court held that, first, Lilia does not have to present evidence that her first marriage has been vitiated by force. A marriage vitiated by force is merely voidable—that is, valid until annulled. Since no annulment had yet been made, it is clear that when Lilia married Wiegel, she is still validly married to Maxion. Consequently, her marriage to Wiegel is void.. Second, Lilia does not have to present evidence as to her husband’s alleged marriage at the time they married. While Lilia and Maxion’s marriage is void, it still needs to be declared void by a court.[41]Thus, the Supreme Court said that since the first marriage had not been annulled or declared void, then Lilia was considered a married woman at the time she married Karl, consequently, her marriage with Karl is void. This is a proper application of Article 40, and the author agrees to the various aforementioned conclusions. However, Wiegel is not a case involving bigamy.
It is shocking therefore that the Supreme Court ruled, without qualification, in Terre v. Terre[42] that the second marriage entered into by Atty. Jordan Terre was “bigamous and criminal in nature.” In this case, Dorothy Terre accused Atty. Jordan Terre of grossly immoral conduct for contracting a second marriage and living with another woman, while his prior marriage with Dorothy remained subsisting. It turned out that Dorothy had a previous marriage with one Merlito Bercenilla, her first cousin. Jordan thus believed that his marriage to Dorothy was void ab initio, and that he could contract a second marriage with Helen Malicdem.
The Supreme Court disbarred Jordan for grossly immoral conduct under Rule 138, Sec. 27 of the Rules of Court.[43] The Court held that even if Jordan had entered into his first marriage in good faith, a judicial declaration of the nullity of the same is still required before remarriage. The Supreme Court then held his marriage to Dorothy was valid and his marriage to Helen was “bigamous and criminal” in nature.
But, why was there a need to qualify Jordan’s second marriage as “bigamous and criminal in nature”? Surely, for the criminal liability for bigamy to attach, both the first and second marriages must be valid?
Mercado[44] is yet another “difficult” ruling. Here, at the time of the celebration of the marriage of Vincent Mercado and Consuelo Tan, Mercado was already married to a certain Thelma Oliva. Consequently, Consuelo Tan filed a complaint for bigamy against Mercado. More than a month after the bigamy case was filed, Mercado filed an action for the declaration of nullity of his marriage to Thelma Oliva with the RTC, which judicially declared the marriage between Mercado and Oliva to be null and void on the basis of Article 36 of the Family Code. Mercado was still convicted of bigamy by the lower court and thus, appealed to the Supreme Court.
The Supreme Court ruled that Article 40 of the Family Code (again, a rule of procedure)[45] effectively sets aside the conflicting jurisprudence on whether a judicial declaration of nullity of marriage is necessary before one can contract a subsequent marriage. The fact that the first marriage is void from the beginning cannot now be a defense against a bigamy charge. As with a voidable marriage, there must be a judicial declaration of the nullity of a marriage before contracting a second marriage.[46] That Mercado subsequently obtained a judicial declaration of the nullity of his first marriage was immaterial as the “crime” had already been consummated.
Another Supreme Court decision that has confused the application of the Article 40 of the Family Code is that of Marbella-Bobis v. Bobis.[47] In this case, Isagani Bobis first married a certain Dulce Javier in 1985. Without annulling, nullifying, or terminating his first marriage, Isagani married a second time, to petitioner Imelda Marbella-Bobis in 1996. Then, Isagani married a third time, to one Julia Hernandez. After an information for bigamy was filed against Isagani by Imelda, he initiated a civil action for the judicial declaration of absolute nullity of his first marriage on the ground that it had been celebrated without a marriage license. He then moved to have the proceedings in the criminal case suspended invoking the pending civil case for the nullity of his first marriage as a prejudicial question.
The Supreme Court held that the subsequent filing of a civil action for declaration of nullity of a previous marriage does not constitute a prejudicial question to a criminal case for bigamy. Article 40 of the Family Code requires a prior judicial declaration of nullity of a previous marriage before a party may remarry and that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage.[48]
Surely, reductio ad absurdum, if a person is married to a sibling, there is no need for a prior declaration of nullity. The law itself tells us that the complete absence of a valid marriage license makes a marriage absolutely void.[49]Article 39 of the Family Code is very clear: The action or defense for the declaration of absolute nullity of a marriage shall not prescribe.
While Isagani Bobis should not have married three times, should the Supreme Court really have ruled on passion against the “adventurous bigamist”? And which of the three marriages was actually bigamous? Yes, the second marriage in Bobis is void. However, it cannot be considered bigamous through Article 40 of the Family Code. It is the third marriage that is void, illegal, and bigamous under Article 41 of the Family Code.
Either Bobis is right and Morigo v. People[50]is wrong, or vice-versa.
In the case of Morigo, Lucio Morigo married Lucia Barrete, who then reported back to her work in Canada eight days after their marriage. A year later, Barrete filed a petition for divorce against Morigo before the Ontario Court, which petition was granted. Morigo married Maria Lumbago and eventually filed a complaint for judicial declaration of nullity of his marriage to Barrete with the Family Court on the ground that no marriage ceremony had taken place. Soon after, a charge of bigamy was filed against Morigo by Lumbago. Morigo moved for suspension of the arraignment on the ground that the civil case for judicial nullification of his first marriage posed a prejudicial question in the bigamy case. His motion was denied and he was convicted. While the case was on review in the Court of Appeals, the Family Court judicially declared Morigo’s first marriage void for absence of a marriage ceremony. The Court of Appeals, however, affirmed the bigamy conviction on the ground that the subsequent declaration of Morigo and Lucia’s marriage could not acquit Morigo as what is sought to be punished by the Revised Penal Code is the act of contracting a second marriage before the first marriage has been dissolved.
The Supreme Court overturned Morigo’s conviction since the first element of bigamy—that is, that the offender had been legally married—was not present. Morigo and Lucia’s marriage is void ab initio and as such, following the principle of retroactivity of a marriage being declared void ab initio, the two were never married from the beginning.
But was not Morigo still married when he married a second time? Did not the Supreme Court say that a person cannot judge for himself whether his marriage is valid or not? And did not the Supreme Court also tell us that the subsequent filing of a civil action for declaration of nullity of a previous marriage does not constitute a prejudicial question to a criminal case for bigamy; that Article 40 of the Family Code requires a prior judicial declaration of nullity of a previous marriage before a party may remarry; and that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage? And finally, unlike Isagani Bobis, both of Morigo’s marriages took place when the Family Code was already in effect, so why was Article 40 not applied?
Interestingly, the Supreme Court distinguished Morigo from Mercado in theBobis case. The Supreme Court said that in Mercado, while the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated,[51] unlike Morigo, the marriage inMercado was celebrated on two occasions: “Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio.”[52]
Please note, however: In Morigo, there was no marriage ceremony performed by a duly authorized solemnizing officer. In Mercado, the marriage was declared void on the basis of Article 36 of the Family Code—not on the absence of either an essential or a formal requisite. The two cases should not have been compared. Again, I raise the question: Is psychological incapacity an element of legal capacity or of consent to enter into a marriage?
Based on the case of Morigo and present jurisprudence, is it safe to say that:
- If one wanted to get out of a criminal conviction, the defense is not psychological incapacity or the lack of a marriage license, but the lack of a marriage ceremony?
- If both marriage ceremony and marriage license are elements of formal requisites, then the absence of a marriage license does not have the same effect as the absence of a marriage ceremony? [Please note: A marriage ceremony does not have a particular form, but a marriage license does.]
- If the defense were psychological incapacity, it will not acquit one of bigamy? Therefore, psychological incapacity does not render a marriage void? Is the Supreme Court, therefore, ready to say that the presence of psychological incapacity merely makes a marriage voidable? If so, thenMercado is correct?
- One will always be a bigamist even if both marriages were void and one did not seek the nullity of the first marriage before subsequently marrying?
- No one can ever file a petition based on newly-discovered evidence and a void marriage can be ratified on the basis of res judicata, specifically because of Mallion?
- The existence of a judicial declaration of a void marriage is not a defense to bigamy if the ground is any other than the absence of a marriage ceremony?"
