Effect of Annulment in a Criminal Case for Bigamy in the Philippines

There are persistent questions on the effect of a petition for annulment or a declaration of nullity of marriage on a criminal case for bigamy. It is time to have a discussion on this subject matter (see below).

In a case for bigamy, the following matters or “elements” must be shown by the prosecution:

  • 1. That the offender has been legally married;
  • 2. That 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;
  • 3. That he contracts a second or subsequent marriage; and
  • 4. That the second or subsequent marriage has all the essential requisites for validity.

There are two scenarios: (1) it is argued that the first marriage is null and void or is a nullity; or (2) that the second marriage is null and void. Let’s discuss each scenario.

1. The first marriage is allegedly null and void.

In the case of Mercado vs. Tan (G.R. No. 137110, 1 August 2000), the accused argued that he already obtained a judicial declaration of nullity of his first marriage under Article 36 of the Family Code, thereby rendering it void ab initio. He argues that a void marriage is deemed never to have taken place at all and, hence, there is no first marriage to speak of. The accused also quoted the commentaries of former Justice Luis Reyes that “it is now settled that if the first marriage is void from the beginning, it is a defense in a bigamy charge. But if the first marriage is voidable, it is not a defense.”

The Supreme Court, in dismissing the argument of the accused, stated:

In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only after complainant had filed a letter-complaint charging him with bigamy. By contracting a second marriage while the first was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.

That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

2. The second marriage is allegedly null and void.

The effect of the judicial declaration of the nullity of a second or subsequent marriage (on the ground of psychological incapacity) on an individual’s criminal liability for bigamy is a novel issue, well, until 2004 when the Supreme Court decided Tenebro vs. Court of Appeals (G.R. No. 150758, 18 February 18, 2004).

In that case, the accused argued that the declaration of the nullity of the second marriage, which is an alleged indicator that the second marriage lacks the essential requisites for validity, retroacts to the date on which the second marriage was celebrated. The accused then concluded that since the third and fourth “elements” of bigamy are not present, he should be acquitted.

The Supreme Court, however, decided against the accused and dismissed his arguments, stating that:

Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is 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.

As a second or subsequent marriage contracted during the subsistence of petitioner’s valid marriage to Villareyes, petitioner’s marriage to Ancajas would be null and void ab initio completely regardless of petitioner’s psychological capacity or incapacity. Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, 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”. A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage.
xxx

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate.[28] There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment.

The Supreme Court affirmed the following penalty:

Under Article 349 of the Revised Penal Code, as amended, the penalty for the crime of bigamy is prision mayor, which has a duration of six (6) years and one (1) day to twelve (12) years. There being neither aggravating nor mitigating circumstance, the same shall be imposed in its medium period. Applying the Indeterminate Sentence Law, petitioner shall be entitled to a minimum term, to be taken from the penalty next lower in degree, i.e., prision correccional which has a duration of six (6) months and one (1) day to six (6) years. Hence, the Court of Appeals correctly affirmed the decision of the trial court which sentenced petitioner to suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum.

It is important to note that there are vigorous dissents (contrary opinions) from other justices in Tenebro. The concurring opinion of Justice Vitug is also worth reading.


It must be emphasized that due to the apparently conflicting decisions on these issues, each case must be examined separately. For instance, in Ty vs. Court of Appeals (not a criminal case, though), the Supreme Court noted that the bigamous marriage in the above-mentioned case of Mercado vs. Tan was contracted during the effectivity of the Family Code – not the Civil Code. According to the Supreme Court in Ty:

As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil Code contains no express provision to that effect. Jurisprudence on the matter, however, appears to be conflicting.

Originally, in People v. Mendoza, and People v. Aragon, this Court held that no judicial decree is necessary to establish the nullity of a void marriage. Both cases involved the same factual milieu. Accused contracted a second marriage during the subsistence of his first marriage. After the death of his first wife, accused contracted a third marriage during the subsistence of the second marriage. The second wife initiated a complaint for bigamy. The Court acquitted accused on the ground that the second marriage is void, having been contracted during the existence of the first marriage. There is no need for a judicial declaration that said second marriage is void. Since the second marriage is void, and the first one terminated by the death of his wife, there are no two subsisting valid marriages. Hence, there can be no bigamy. Justice Alex Reyes dissented in both cases, saying that it is not for the spouses but the court to judge whether a marriage is void or not.

In Gomez v. Lipana, and Consuegra v. Consuegra, however, we recognized the right of the second wife who entered into the marriage in good faith, to share in their acquired estate and in proceeds of the retirement insurance of the husband. The Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there was a need for judicial declaration of such nullity (of the second marriage). And since the death of the husband supervened before such declaration, we upheld the right of the second wife to share in the estate they acquired, on grounds of justice and equity.

But in Odayat v. Amante (1977), the Court adverted to Aragon and Mendoza as precedents. We exonerated a clerk of court of the charge of immorality on the ground that his marriage to Filomena Abella in October of 1948 was void, since she was already previously married to one Eliseo Portales in February of the same year. The Court held that no judicial decree is necessary to establish the invalidity of void marriages. This ruling was affirmed in Tolentino v. Paras.

Yet again in Wiegel v. Sempio-Diy (1986), the Court held that there is a need for a judicial declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in 1972. In 1978, she married another man, Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations Court to declare his marriage to Lilia as void on the ground of her previous valid marriage. The Court, expressly relying on Consuegra, concluded that:

There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs according to this Court a judicial declaration (citing Consuegra) of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; accordingly, the marriage of petitioner and respondent would be regarded VOID under the law. (Emphasis supplied).

In Yap v. Court of Appeals, however, the Court found the second marriage void without need of judicial declaration, thus reverting to the Odayat, Mendoza and Aragon rulings.

At any rate, the confusion under the Civil Code was put to rest under the Family Code. Our rulings in Gomez, Consuegra, and Wiegel were eventually embodied in Article 40 of the Family Code. Article 40 of said Code expressly required a judicial declaration of nullity of marriage.“

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.

In Terre v. Terre (1992) the Court, applying Gomez, Consuegra and Wiegel, categorically stated that a judicial declaration of nullity of a void marriage is necessary. Thus, we disbarred a lawyer for contracting a bigamous marriage during the subsistence of his first marriage. He claimed that his first marriage in 1977 was void since his first wife was already married in 1968. We held that Atty. Terre should have known that the prevailing case law is that “for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential.”

The Court applied this ruling in subsequent cases. In Domingo v. Court of Appeals (1993), the Court held:

Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A declaration of absolute nullity of marriage is now explicitly required either as a cause of action or a ground for defense. (Art. 39 of the Family Code). Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99, 147, 148).

However, a recent case applied the old rule because of the peculiar circumstances of the case. In Apiag v. Cantero, (1997) the first wife charged a municipal trial judge of immorality for entering into a second marriage. The judge claimed that his first marriage was void since he was merely forced into marrying his first wife whom he got pregnant. On the issue of nullity of the first marriage, we applied Odayat, Mendoza and Aragon. We held that since the second marriage took place and all the children thereunder were born before the promulgation of Wiegel and the effectivity of the Family Code, there is no need for a judicial declaration of nullity of the first marriage pursuant to prevailing jurisprudence at that time.

Similarly, in the present case, the second marriage of private respondent was entered into in 1979, before Wiegel. At that time, the prevailing rule was found in Odayat, Mendoza and Aragon. The first marriage of private respondent being void for lack of license and consent, there was no need for judicial declaration of its nullity before he could contract a second marriage. In this case, therefore, we conclude that private respondent’s second marriage to petitioner is valid.

Atty.Fred

84 thoughts on “Effect of Annulment in a Criminal Case for Bigamy in the Philippines

  1. Atty. FredAtty. Fred

    Jelli,
    As previously discussed (click here), Philippine laws on marriage govern a Filipino wherever he/she is in the world. In other words, any marriage solemnized outside the Philippines has legal repercussions here.

    The same article also discusses the effect of a divorce secured by Filipinos abroad – it has no effect in the Philippines and the couple is still considered married under Philippine laws. Unlike adultery or concubinage, bigamy is a public offense, which means that the State can prosecute it even if the other spouse is guilty of the same thing.

    Still, as this discussion is in general and is not a legal advice, I strongly suggest that your friend consult her retained lawyer. Hope this helps.

    Reply
  2. Avatarchristine

    Hi,
    Usually how long will it take the case to be finished? The husband had the second marriage even if the first one is not annulled yet.

    Could you give some estimatE?

    Thanks! =)

    Reply
  3. Avatarjoshua

    hi!

    i am hoping someone could clarify this legal matter. i am really confused, BIGAMY is a public crime isn’t it? Thus, any concerned citizen, who has the legal capacity, may file the criminal charges, right? And if this is so the case, where MUST / SHOULD the concerned citizen file the complaint? in the place where the first marriage commenced or where the supposedly bigamous marriage occurred?

    Do we have a prevailing jurisprudence regarding this issue?

    Thank you and hope to hear from you.
    GOD BLESS!

    josh =)

    Reply
  4. Avatarprosecutor josa

    I think Jelli is right. Our criminal law is territorial and hence, if committed outside of the Philippines, our court has no jurisdiction to try such case.

    Reply
  5. Avatarscout

    Atty Fred,

    Can I file a petition for Declaration of absolute Nullity of Marriage even if I am on a Foriegn country? Do I need to be pgysically present in the PH before Absolute Nullity will be declare?

    The situation is that my wife has a previous marriage…I wanted to file a petition to nullify our marriage but I also don’t want to file a case of bigamy on her.

    Thank you if you can help me on this.

    Reply
  6. Atty. FredAtty. Fred Post author

    Scout, I strongly suggest you read the related post on “Steps and Procedure on Annulment and Declaration of Nullity of Marriage” (click here). Some of your concerns are discussed in that article (for instance, see the portion on “Preparation and Filing of the Petition”).

    For other concens, please check the “Related Posts” or use the search function at the right sidebar (if you’re using Internet Explorer, the right sidebar is probably pushed down…so try scrolling down and check the right sidebar…or try using Firefox). Hope that helps…let me know if there’s anything more I can do (of course, subject to the limitations in using this site – see “Terms” at the header).
    Good luck.

    Reply
  7. Avatarsarah-j

    Please tell me if you can call this a Bigamy.

    My brothers’ wife went to Canada in 2000, found a foreigner boyfriend in 2001. She sent him a divorce paper in 2004 but my brother didn’t sign it up and sent it back to her. His wife then marries her foreign BF and presently living together. It’s now 2007 and she is going back home in June for a visit. My brother has now two small kids with her live-in partner. Can my brother still sue her once she step on the Philippines’ soil for Bigamy? I just don’t know if my ex-sis-in-law is a Canadian citizen now, if that would make any difference. How is the Philippines law stands on this?
    Thank you.

    Reply
  8. Avatarsilvermoon

    hi!

    1. I would just like to ask if the Supreme Court is abandoning the doctrine that void marriages are inexistent and its effect retroacts from its inception in view of its ruling in the tenebro case?

    2. Would not the ruling in tenebro vs. CA present conflicting decisions from 2 separate courts?

    3. Whatever happened to rule 39 which states that the ACTION or DEFENSE in declaration of nullity shall not prescribe? Hence, can be raised anytime. By saying its immaterial, isn’t the SC in effect precluding a valid defense which is expressly provided as imprescriptible?

    4. If it is immaterial whether the 2nd marriage is void or voidable, then what makes it now different from other forms of associations? I think the Family Code precisely lays down the essential and formal requirements so we may differentiate what are considered MARRIAGES in phil society.

    Say for example. If 1st marriage is valid. Then there is a 2nd “marriage” but actually its not because it merely is a cohabitation (because it lack the license, ceremony etc, same as what we define as void marriages)…if we follow the logic of the SC, that means it is immaterial whether there was indeed marriage in contemplation of Family Code, so long as there is a seeming marriage. ( I don’t know anymore how the SC defines marriage so as to fall under bigamy element 3)

    Reply

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