Lack of first marriage license as defense for subsequent marriage
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@ manilatimes.net
The Manila Times
Dear PAO, My friend got married last year. Given that they had been dating for several years and had even lived together before deciding to get married, she genuinely believed that she knew the man she had married. But recently she heard rumors that her husband is married even prior to their marriage. At first, she did not mind those rumors. But a relative of the “first” wife contacted her and confirmed the first marriage. She wants to file a case for bigamy against her husband, but he told her that his first marriage is not even valid since they did not have a marriage license when they got married. He showed her a piece of paper stating that he has no record of marriage license. Will that be enough? Can my friend really not file for bigamy? Magnolia Dear Magnolia, Under Article 349 of the Revised Penal Code of the Philippines, the crime of bigamy is committed by 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.” Our Supreme Court has repeatedly specified the elements of the crime of bigamy: “(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.” (Francis D. Malaki and Jacqueline Mae Salanatin-Malaki v. People of the Philippines, GR 221075, Nov. 15, 2021, Ponente: Associate Justice Marvic M.V.F. Leonen) Corollary, your friend may pursue filing a complaint for bigamy against her husband. However, please bear in mind that she needs to have proof of the existence of all the aforementioned elements. Insofar as the claim that of your friend’s husband that his first marriage is not valid as he and his first wife did not have a marriage license when they got married and his subsequent presentation of a piece of paper stating that he has no record of marriage license, we submit that such allegation and said document alone will not suffice to justify his action of contracting a second marriage, although he may raise the defense that there is absolute nullity of his prior marriage because of the absence of a valid marriage license and that he presents competent evidence in court which can adequately cast doubt as to his guilt. This is in line with the ruling of our Supreme Court in the case of Luisito G. Pulido v. People of the Philippines (GR 220149, July 27, 2021, Ponente: Associate Justice Ramon Paul Hernando): “Clearly, when the first marriage is void ab initio, one of the essential elements of bigamy is absent, i.e. a prior valid marriage. There can be no crime when the very act which was penalized by the law, i.e. contracting another marriage during the subsistence of a prior legal or valid marriage, is not present. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to begin with. Thus, an accused in a bigamy CASE SHOULD BE ALLOWED TO RAISE THE DEFENSE OF A PRIOR VOID AB initio marriage through comPETENT EVIDENCE OTHER THAN THE JUDICIAL DECREE OF NULLITY. x x x “True, a marriage is presumed to be valid even if the same is void ab initio without a judicial declaration of its absolute nullity in view of Article 40 of the Family Code. However, the accused in a bigamy case should not be denied the right to interpose the defense of a VOID AB INITIO MARRIAGE, which effectively retroacts to the date of the celebration of the first marriage.” (Emphasis supplied) We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.