16 April 2019

Ms. Beru
Cebu City
Philippines

Dear Ms. Beru,

This legal opinion seeks to answer your question as to whether you should
be convicted or acquitted of the case filed against you by your estranged husband,
Mr. Owen, under Article 349 of the Revised Penal Code also known as Bigamy.
During consultation, you have narrated to us that the following are the
pertinent facts:
On 2012, you married Mr. Owen. After 6 years of marriage, Owen has filed
a complaint for bigamy against you in 2018. Owen alleged in the information that
you contracted a prior marriage in 2010 with a man named Lando. You denied
your estranged spouse` allegations. However, you have admitted that you signed a
simulated marriage contract in 2010 on the boyfriend`s persuasion so that he can
discourage another woman named Corde who he had impregnated from pursuing
him but you never lived as a husband and wife. You also added that Lando
registered the simulated marriage contract without your knowledge, much less of
your consent. You also said that there was no marriage ceremony that took place,
and that you and Lando did not even lived together as a husband and wife after you
signed the simulated marriage contract. You have contracted your current marriage
in the firm belief that you had no legal impediment to marry until Owen filed a
case of Bigamy against you.

The main issue here is whether or not under Article 349 of Revised Penal Code
also known as Bigamy, you can be held liable after you contracted a subsequent
marriage with Owen when you still had a previous subsisting simulated marriage
with Lando. It is important to note what act constitutes Bigamy. In the case of
Mercado vs. Tan, The court cited “the elements of Bigamy, to wit:
(1) that the offender has been legally married;
(2) that the first 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;
(3) that he contracts a second or subsequent marriage; and
(4) that the second or subsequent marriage has all the essential requisites
for validity.”

On the first element, the law requires that the accused must have been
legally married. In relation to your case, we found out that there was no valid
marriage that existed between you and Lando. To support with, Art 2 and 3 of the
Family Code provides the essential and formal requisites of marriage. Wherein
Article 2 of the family Code states that:
 “No marriage shall be valid, unless all these essential requisites are present:
1.) Legal capacity of the contracting parties who must be a male and a
female.
2.) Consent freely given in the presence of the solemnizing officer”.

And as expressly stressed in the Article 3 of the Family Code, “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”.

For the essential requisites presented, the second requisite was absent. There was
no consent freely given in the presence of solemnizing officer. We could assert the
fact that your act of signing the simulated contract was through the persuasion of
Lando for the purpose of discouraging the woman who he had impregnated in
pursuing him and that you have no knowledge that lando registered the simulated
marriage contract. On another ground, there was no marriage ceremony that took
place as such violates the provisions of the law regarding validity of marriage. So
here, It is clear that there was an absence on the essential and formal requisites of
marriage. Applying Article 4 of the Family Code which provides that “The absence
of any of the essential or formal requisites shall render the marriage void ab initio”,
Evidently your simulated marriage did not result to a valid marriage as it failed to
comply on the essential requisites which on the ground of there was no consent
freely given in the presence of solemnizing officer and that of the formal requisites
as it requires a marriage ceremony before a solemnizing officer , your declarations
as a husband and wife and the presence of not less than two witness. Therefore,
you cannot be held liable of the crime of Bigamy as there was no valid marriage
that existed prior to your second marriage.

The opposition will argue that you should secure first a judicial declaration
of nullity of marriage before you can contract a second marriage but we assure you
that the court will give credence to your good faith and that there was you have no
criminal intent in committing the offence as intent is a necessary element for an
offense to be consummated.

We affirm that the court will uphold the law and acquit you on the crime
charged against you. Thank you for your correspondence.

Your legal counsel,

Karen A. Refil