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MEMORANDUM HEARING

TO: Senior Partner


FROM: Hannah Montana, Associate Lawyer
DATE: April 16, 2019
RE: Owen v. Beru – Bigamy Case; Defenses in Bigamy

STATEMENT OF THE ASSIGNMENT


This paper is a legal memorandum in response to your request
concerning the case of our client Ms. Beru who is charged with bigamy by
her husband. In line with that, I have presented here the relevant facts,
issues, the applicable rules and jurisprudence as our defense to win the case
of our client. This also includes possible counterarguments from the
opposing party and our answer to such.

FACTS
This complaint of bigamy filed in court by herein complainant Owen
against defendant Beru, the former’s wife, alleging that the latter having
previously married one man named Lando, and without said marriage having
been dissolved or is still subsisting, contracted a second marriage with said
complainant.

The pertinent facts as set forth follow: In 2012, Beru contracted a


marriage with her husband Owen. After 6 years of living together as
husband and wife, Owen filed a complaint for bigamy against Beru when he
found out that the latter contracted a prior marriage with Lando, her first
boyfriend, 2 years after their valid marriage with Owen. However, Beru
denied the allegations of her estranged husband on the contention that there
was no previous valid marriage to speak of with Lando as it was only a
simulated marriage and is therefore void ab initio. Beru contends that the
simulation of such marriage arose from the fact that Lando only convinced
her to sign the simulated marriage contract because the latter wanted to
discourage another woman named Corde whom he impregnated, from
pursuing him. Beru further contends that there was no marriage ceremony
that took place and that she and Lando did not live together as husband and
wife after they signed the simulated marriage contract. Beru was only able to
discover that Lando registered the simulated marriage contract without her
knowledge, much less consent after the bigamy complaint was filed in court.

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ISSUES/QUESTIONS PRESENTED
1. Whether the validity of marriage between Beru and Lando is a prejudicial
question to the case of bigamy.
2. Whether the simulated marriage contract signed by Beru and Lando is
considered a valid marriage.
3. Whether, under our Revised Penal Code, the crime of bigamy has been
committed by Beru for contracting a subsequent marriage with Owen when
the former has a previous subsisting marriage with Lando.

BRIEF ANSWER
1. Yes, the validity of the first marriage between Beru and Lando should be
resolved first as it is a prejudicial question to the criminal case of bigamy
filed by her husband Owen since it determines whether or not the criminal
proceeding shall prosper.
2. No, because the essential and formal requisites as provided in the Family
Code for a marriage to be considered valid are absent or not complied with
in the marriage contracted by Beru and Lando.
3. No, Beru cannot be held liable for the crime of bigamy because her first
marriage with Lando is void ab initio hence no previous valid marriage that
is subsisting to speak of being the first requisite for the crime of bigamy to
be committed.

APPLICABLE RULES AND DISCUSSION/ANALYSIS


The first issue presents a question on the validity of the first marriage
contracted by Beru with Lando as a prejudicial question which should be
resolved first before the criminal case of bigamy filed by Owen against his
wife Beru can proceed. As stated in Article 36 of the Civil Code:
Prejudicial questions, which must be decided before any
criminal prosecution may be instituted or may proceed, shall be
governed by rules of court which the Supreme Court shall
promulgate and which shall not be in conflict with the
provisions of this Code.

In the same vein, the Supreme Court ruled in the case of People v.
Aragon1 where the accused pending trial of her criminal case of bigamy,
filed a civil action in the same court against the defendant praying that their
marriage be annulled by reason of vitiated consent in her allegation that she
was forced to marry the latter by means of force, threats and intimidation of
bodily harm and such civil action for nullity of marriage must be decided

1
People v. Aragon, G.R. No. L-5930, February 17, 1954.

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first before the action for bigamy may be determined as then. validity of the
first marriage is a prejudicial question.

Furthermore, the elements of a prejudicial question are provided in


Section 7 of Rule 111 of the Revised Rules of Criminal Procedure2 which
are:
(a) That the previously instituted civil action involves an
issue similar or intimately related to the issue raised in the
subsequent criminal action, and;
(b) That the resolution of such issue determines whether
or not the criminal action may proceed.

In the present case, Beru can institute a civil action on the validity of
marriage with Lando where resolution of such will determine if the criminal
action of bigamy will prosper.

The second issue pertains to the simulated marriage contract signed


by Beru and Lando and whether such has met the essential and formal
requisites for a marriage to be considered valid. The marriage being a
lifetime commitment and is the foundation of a family, it is essential to take
into account the essential and formal requisites of a valid marriage as
provided for in Articles 2 and 3 of the Family Code:
Art. 2. No marriage shall be valid, unless these essential
requisites are present:
(1) Legal capacity of the contracting parties who must be
a male and a female; and
(2) Consent freely given in the presence of the
solemnizing officer.
Art. 3. The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in the cases provided
for in Chapter 2 of this Title; 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.

2
§ 7 of Rule 111 of the Revised Rules of Criminal Procedure

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It bears stressing that the absence of any of the essential and formal
requisites of a valid marriage as mentioned renders the marriage void ab
initio as expressly stated in Article 4 of the Family Code:

The absence of any of the essential or formal requisites


shall render the marriage void ab initio, except as stated in
Article 35 (2).

A defect in any of the essential requisites shall not affect


the validity of the marriage but the party or parties responsible
for the irregularity shall be civilly, criminally and
administratively liable.

From the foregoing facts, Beru and Lando only agreed to sign a
simulated marriage contract to appear to Corde whom the latter impregnated
that he is already married hence the marriage is void as the marriage contract
is neither an essential nor a formal requisite that would constitute a valid
marriage. Assuming arguendo that the act of signing a marriage contract is a
mutual consent declaring themselves as husband and wife, it is still devoid
of merit because of the absence of other essential and formal requisites such
as the consent freely given was not given in the presence of a solemnizing
officer and no marriage ceremony has been conducted before an authorized
solemnizing officer in the presence of not less than two witnesses of legal
age. It is to be noted that the signing of such simulated marriage contract
was done privately by the parties themselves.

Furthermore, the parties did not obtain a marriage license prior to the
signing of the contract and their case does not fall on the exemptions of
marriage license requirement provided for in Chapter 2, Title I of the Family
Code3. The marriage of the parties cannot be characterized as among the
exemptions hence their marriage is void ab initio for failing to procure a
marriage license even if there was a marriage contract. The necessity of
securing a marriage license is enunciated in the case of Kho v. Republic4

3
Chapter 2. Marriages Exempted from License Requirement:
Art. 27. In case either or both of the contracting parties are at the point of death, the marriage may be
solemnized without necessity of a marriage license and shall remain valid even if the ailing party
subsequently survives.
Art. 28. If the residence of either party is so located that there is no means of transportation to enable
such party to appear personally before the local civil registrar, the marriage may be solemnized without
necessity of a marriage license.
Art. 33. Marriages among Muslims or among members of the ethnic cultural communities may be
performed validly without the necessity of marriage license, provided they are solemnized in accordance
with their customs, rites or practices.
Art. 34. No license shall be necessary for the marriage of a man and a woman who have lived together as
husband and wife for at least five years and without any legal impediment to marry each other. The
contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to
administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications
of the contracting parties are found no legal impediment to the marriage.

4
Kho v. Republic, G.R. No. 183896, January 30, 2013.

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decided by the Supreme Court that it is an authority granted by the State to
the contracting parties after the government has inquired into their capacity
to contract marriage. The court further stressed that the rationale for the
compulsory character of marriage license flows from the State’s
demonstration of its involvement and participation in every marriage in the
maintenance of which the general public is interested.

To give light to the simulation of their marriage contract, it is to be


noted that a marriage is a contract governed by law and the simulation of
such renders it void from the beginning or inexistent as expressly stated
under Article 1409 (2) of the New Civil Code5. This is likewise enunciated in
the case of Bangayan v. Bangayan Jr6 where the petitioner brought the
respondent to an office and the two agreed to sign a purported marriage
contract in order to appease former’s father who was against their
relationship. The court applied the general rules on void and inexistent
contracts as mentioned above to a marriage contract holding it void for being
simulated or fictitious and thus no marriage to speak of as it is void from its
inception.

Thus, the marriage between Beru and Lando is void ab initio for
having failed to comply with the essential and formal requisites of a valid
marriage. The marriage contract as a contract governed by the mentioned
provision in the Civil Code, also strengthens its void or non-existent
character as it was simulated.

The third issue concerns about question on whether Beru can be held
liable for a crime of bigamy as provided in Article 349 of the Revised Penal
Code7 which defines bigamy and penalizes 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. The elements
for bigamy to committed are laid down in the case of Marbella-Bobis v.
Bobis8 which are:

(1) That the offender has been legally married;

5
Article 1409 of the New Civil Code. The following contracts are inexistent and void from the beginning:
(2) Those which are absolutely simulated or fictitious.

6
Bangayan v. Bangayan Jr., G.R. No. 201061, July 3, 2013.

7
Art. 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.

8
Marbella-Bobis v. Bobis, G.R. No. 138509, July 31, 2000.

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(2) That the first marriage has not been legally dissolved, or in
case his or her spouse is absent, the absent spouse has
not been judicially declared presumptively dead;
(3) That he or she contracts a subsequent marriage; and
(4) That the subsequent marriage would have been valid had it
not been for the existence of the first.

In the light of above mentioned rules and jurisprudence, the marriage


of Beru and Lando being void due to absence of essential and formal
requisites of a valid marriage, negates the existence of first requisite of
bigamy to be committed which pertains that Beru must be legally married
prior to her marriage with Owen. The marriage contracted between Beru and
Owen had no legal impediment and the former acted within the bounds of
law and within her rights when she married the latter. Thus, Beru cannot be
held liable for such crime as there was no previous valid marriage that is
subsisting or has not yet been dissolved upon her marriage with Owen.

COUNTERARGUMENTS

Beru can be held liable since she failed to file a judicial declaration of
nullity of her previous marriage with Lando before she married Owen
pursuant to Article 40 of the Family Code9 which stated:

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.

In a relevant case decided by the Supreme Court in Mercado v. Tan10,


it reiterated that a judicial declaration of nullity of a previous marriage is
necessary before a subsequent one can be legally contracted since a person
who enters into a subsequent marriage without first obtaining such judicial
declaration is guilty of bigamy. The court said in the case that the principle
applies even if the earlier union is characterized by statute as “void.”

Applying the provision in the instant case, it is not for the parties to
assume that their marriage is void thus Beru should have filed an action in
court for a judicial declaration of nullity of her marriage with Lando. It
follows that Beru is liable for the crime of bigamy as her marriage with
Lando is still subsisting and has not yet been dissolved when she
subsequently contracted a marriage with Owen.

9
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.
10
Mercado v. Tan, G.R. No. 137110, August 1, 2000.

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RESPONSE TO COUNTERARGUMENTS

While there is necessity in filing a judicial declaration of nullity of


marriage in the event that a person wants to remarry and not to be held liable
of bigamy, the validity of the previous marriage is still subject to the
circumstances attending to each case. Thus to differentiate, it bears stressing
in the mentioned case of Mercado v. Tan that the first marriage was actually
solemnized not just once, but twice when first, it was done so before a judge
where a marriage certificate was issued and another in the lapse of six
months before a priest in religious rites. On the other hand, in Morigo v.
People11, no marriage ceremony at all was performed by an authorized
solemnizing officer thus no marriage has been contracted because they only
signed a marriage contract on their own. The mere private act of signing a
marriage contract is not constitutive of a valid marriage and thus, does not
require a judicial declaration of nullity.

As there was no marriage ceremony that has been conducted before an


authorized solemnizing officer of the marriage between Beru and Lando,
there is no valid marriage to speak of and negates the necessity of filing a
judicial declaration of nullity. Consequently, Beru cannot be held liable for
bigamy because the first requisite of the crime is absent as Beru is not
legally married to Lando when she subsequently married Owen.

Also worth noting for to ensure that justice is served, the Court is
mandated to liberally construe a penal statute in favor of an accused and
weigh every circumstance in favor of the presumption of innocence. In the
instant case, Beru contracting the subsequent marriage with Owen was done
in good faith belying the intent to commit the crime of bigamy because of
the fact that she did not intend to marry Lando as evident in the non-
compliance of the essential and formal requisites of a valid marriage. The
registration of simulated marriage contract she signed with Lando has only
come to her knowledge after the complaint of bigamy was filed against her.
Her failure to invoke judicial aid to declare the nullity of her marriage with
Lando is not required due to the absence of essential and formal requisites of
a valid marriage. Thus, Beru cannot be held criminally liable for bigamy.

11
Morigo v. People, G.R. No. 145226, February 6, 2004.

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CONCLUSION
Beru, our client, cannot be held criminally liable of bigamy since the
applicable rules and jurisprudence as laid out provides strength on the
defense primarily because the simulated marriage contract signed by Beru
and Lando does not constitute a valid marriage for non-compliance with the
essential and formal requisites of a valid marriage. Hence, it negates the
presence of the first requisite of bigamy that the offender has been legally
married when she contracted the subsequent one. It should be emphasized
that there was no legal impediment when Beru subsequently married Owen.
To further give light to the validity of the marriage between Beru and
Lando, we can present the local civil registrar to attest that the marriage
contract has no marriage license number owing to the fact that the two did
not obtain the marriage license prior to their signing of the simulated
marriage contract. Moreover, Lando can also testify that they in fact
simulated the marriage contract on their own and that they did not live as
husband and wife afterwards.

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