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Jayford O.

Powao LLB-1
Legal Writing

To: Ana Quinn, Associate Attorney


From: Pal Patin, Supervising Attorney
Date: March 8, 2016
Re: Beru v. Owen Bigamy Case; Defenses in Bigamy

You have tasked me to prepare a legal memorandum


concerning the case of our client Miss Beru who is charged
with Bigamy. I have presented here the key facts, issues, our
possible defense, applicable jurisprudence and laws that can
be our basis to defend our client, including possible
counterarguments from the opposing and our answer to that
counter arguments.
KEY FACTS
Our client, Beru got married in 2002 with her husband
Owen. Owen filed a complaint for bigamy against Beru in
2012. Owen claimed that Beru had contracted a prior
marriage in 1992 with a man named Lando. Beru denied her
husbands allegations. She admitted, however, that she was
a party in a simulated marriage that took place in 1998 with
her first boyfriend Lando. The reason was that Lando at that
time impregnated another woman named Corde, and in
order to discourage Corde from pursuing him, Lando
convinced Beru to sign a simulated marriage contract for the
purpose of only showing Corde that he was married already.
Beru said that she and Lando did not even live together as
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husband and wife after the simulated marriage. It was only


after the bigamy complaint was filed in court when Beru
discovered that Lando in fact registered the simulated
marriage contract without her knowledge much less consent.
ISSUES
1.) Whether the question of the validity of the marriage
between Beru and Lando should be resolved first before the
criminal proceeding can proceed
2.) Whether Beru and Landos act of signing a simulated
marriage contract consisted of a valid marriage
3). Whether Beru can be held liable for Bigamy for
conducting a subsequent marriage with Owen when she had
a previous subsisting marriage with Lando
BRIEF ANSWERS
1). Yes, the validity of Berus marriage with Lando shall be
resolved first as it constitutes a prejudicial question to the
criminal case of bigamy filed against her by her husband
Owen since it is determinative whether or not the criminal
case shall prosper.
2.) No, because the essential and formal requisites for a
valid marriage was not complied. Although there is a
marriage contract, but a marriage contract is not an
essential nor a formal requisite for a valid marriage.
3.) No, Beru cannot be held guilty for the crime of Bigamy
because her first marriage with Lando was not valid, hence
one of the essential requisites for the crime of Bigamy to be
committed is not present.
DISCUSSIONS/ANALYSIS
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The first issue to be resolved in this case is whether or


not the issue of the validity of the marriage between Beru
and Lando should be resolved first before the prosecution for
the crime of Bigamy can proceed. In short, the issue on the
validity serves as a prejudicial question to the crime of
Bigamy indicted against Beru. As enunciated 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 our 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 manner, the Supreme Court held in a case


wherein the accused claimed that his first marriage was null
and void and the right to decide that question is vested in
another tribunal, the civil action for nullity must be decided
first before the action for bigamy can proceed. As the high
court said in the case of People v Adelo Aragon:
Prejudicial question has been defined to be that which arises in
a case, the resolution of which (question) is a logical antecedent of the
issue involved in said case, and the cognizance of which pertains to
another tribunal. The prejudicial question must be determinative of
the case before the court; this is its first element. Jurisdiction to try
said question must be lodged in another tribunal; this is the second
element.
In an action for bigamy, for example, if the accused claims that the
first marriage is null 1and void and the right to decide such validity is
vested in another tribunal, the civil action for nullity must first be
decided before the action for bigamy can proceed; hence, the validity
of the first marriage is a prejudicial question.

As supplemented by Section 7 of Rule 11 of the Rules of


Court, the elements of a prejudicial question are:

1 CIVIL CODE, ART. 36PP VS. ADELO ARAGON, GR NO. 5930


RULES OF COURT, SECTION 7

(a) the previously instituted civil action involves an issue similar


or intimately related to the issue said in the subsequent criminal
action, and
(b)the resolution of such issue determines whether or not the
criminal action may proceed.

Thus, Beru shall institute a civil case to resolve the


validity of her first marriage with her former boyfriend
Lando. As such, this action shall bar the criminal action from
proceeding as it constitutes a prejudicial question to the
crime of Bigamy charged against Beru.
The second issue to be resolved in this case is whether
the simulation of a marriage contract between Lando and
Beru resulted to the celebration of a valid marriage. It is of
primary importance to revisit the essential and formal
requisites of a valid marriage. As stated in Article 2 and 3 of
the Family Code:
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.
The formal requisites of marriage are:
(1) Authority of the solemnizing officer;
(2) A valid marriage license except in cases provided for 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.

Furthermore, the absence of any of the essential or


formal requisites shall render the marriage invalid. It is
expressedly laid down in Article 4 of the Family Code, which
provides:

The absence of any of the essential or formal requisites shall


render the marriage void ab initio, except as stated in Article 35(2)2
A defect in any of the essential requisites shall render the
marriage voidable as provided in Article 45.

In the case at bar, it is undeniable that Lando and Beru


agreed to sign a simulated marriage contract for the purpose
of showing Corde whom Lando impregnated tha Lando is
already married. But this does prove that the marriage was
valid, as shown above, marriage contract is not an essential
nor a formal requisite for a valid marriage. Assuming in
argument that the act of signing the marriage contract was
an act purporting that they declare each other as husband
and wife and that they both consent, but this was not done
during a marriage ceremony in front of a solemnizing officer.
The signing was done privately among the parties.
The absence of such negates the existence of the
essential and formal requisites namely: the consent freely
given in the presence of a solemnizing officer, authority of
the solemnizing officer, a marriage ceremony where the
parties appear before the solemnizing officer personally
declaring that they take each other as husband and wife in
the presence of two witnesses.
Furthermore, it has not been shown that they procured
a marriage, and obviously their situation does not fall upon
the exemptions provided by law where a marriage license is
not required.

2 FAMILY CODE, ART. 2FAMILY CODE, ART. 3


FAMILY CODE, ART. 4
CARINO VS. CARINO, GR NO. 132529

Thus, the marriage between Lando and Beru is void ab


initio in accordance with Article 4, since they failed to obtain
the essential and formal requisites provided by law.
As held by the Supreme Court in the case of Cario v.
Cario the court declared that the marriage between the
parties was void ab initio for the failure of the parties to
secure a valid marriage license even if there was a marriage
contract. The court ruled that:
Under the Civil Code, which was the law in force when the marriage of
petitioner Susan Nicdao and the deceased was solemnized in 1969, a
valid marriage license is a requisite of marriage, and the absence
thereof, subject to certain exceptions, renders the marriage void ab
initio.
In the case at bar, there is no question that the marriage of petitioner
and the deceased does not fall within the marriages exempt from the
license requirement. A marriage license, therefore, was indispensable
to the validity of their marriage. This notwithstanding, the records
reveal that the marriage contract of petitioner and the deceased bears
no marriage license number and, as certified by the Local Civil
Registrar of San Juan, Metro Manila, their office has no record of such
marriage license.

Furthermore, marriage is a contract governed by law


and the law states that contracts which are simulated are
void or inexistent, particularly Article 1409 of the Civil Code
enumerates contracts which are void or inexistent, the said
article states that:
Art. 1409. The following contracts are inexistent and void
from the beginning:
xxx

xxx

xxx

(2) Those which are absolutely simulated or fictitious; x x x


xxx xxx

In the case of Bangayan vs Bangayan Jr., the


Supreme Court upheld the decision of the Court of
Appeals which applied the general rules on void or
inexistent contracts under Article 1409 of the Civil Code,
that contracts which are absolutely simulated or fictitious
are inexistent and void from the beginning. The high
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court sustained that the lower courts ruling that the


marriage between the petitioner and respondent of this
case was null and void ab initio and non-existent for lack
of marriage license and for simulation of the marriage
contract.3
Thus, it can be concluded in light of the above
mentioned rules and jurisprudence, that the marriage
between Lando and Beru is void ab initio for they were not
able to comply with the essential and formal requisites for a
valid marriage. We can also consider that the marriage was
void or inexistent for the simulation of the marriage contract
in accordance with Article 1409 of the Family Code.
The third issue that shall be discussed is whether Beru
can be held liable for Bigamy.

Article 349 of the Revised

Penal Code defines and penalizes Bigamy which states that


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 judgement rendered in the proper
proceedings.
Furthermore, the case of Mercado v Tan provides the
elements for Bigamy to be committed which are:
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.
3 CARINO VS. CARINO, GR NO. 132529CIVIL CODE, ART. 1409
BANGAYAN VS BANGAYAN JR. GR NO. 201061
REVISED PENAL CODE, ART. 349
MERCADO VS TAN 137110

4. That the second or subsequent marriage has all the essential


requisites for validity.

From the above-cited article and jurisprudence, Beru


cannot be held liable for Bigamy because the first essential
requisite is absent in this case which provides that the
offender must have been legally married. Beru is not legally
married, as argued above, her previous marriage with Lando
has no legal effect because they have failed to comply with
the essential and formal requisites of a valid marriage.
Thus, in the eyes of the law, Beru is not legally married
prior to her marriage with Owen, as such she had not legal
impediment and was acting within her rights and under the
bounds of law when she conducted a subsequent marriage
with Owen. Henceforth, Beru cannot be held liable for
Bigamy.
COUNTERARGUMENTS
Beru shall be held liable for bigamy because it is not up
to the party to decide whether or not the marriage is valid.
Judicial declaration of nullity is needed before a married
person can remarry. As Article 40 of the Family Code
provides:
The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgement
declaring such previous marriage void.

Furthermore, the law prohibits the parties from


assuming that their marriage is void, even if it is true and
undisputable, they must first seek judicial aid and apply for
a declaration of the nullity of their marriage before they can
be allowed to remarry. Failure of the observance of such shall
make them liable for Bigamy. As ruled in Domingo vs CA:

Came the Family Code which settled once and for all the
conflicting jurisprudence on the matter. A declaration of the
absolute nullity of a marriage is now explicitly required either as a
cause of action or a ground for defense. 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.
The Family Law Revision Committee and the Civil Code Committee
which drafted what is now the Family Code of the Philippines took
the position that parties to a marriage should not be allowed that
their marriage is void even if be the fact but must first secure a
judicial declaration of the nullity of their marriage before they can
be allowed to marry again.4

For the failure of Beru to file a court action for the


judicial declaration of nullity of her marriage, she is guilty
for Bigamy when she conducted a subsequent marriage
with Owen even if she had a subsisting marriage with
Lando. Her disregard of the rule stated in Article 40 of the
Family Code cannot excuse her for liability, as the latin
maxim says ignorantia legis non excusat.
Lastly, Beru can be held liable for moral damages which
Owen suffered as a result of the mental distress, anguish
and pain he suffered as a result of their failed marriage.
As Article 20 and 21 of the Family Code provides:
Article 20 Every person who, contrary to law, wilfully or negligently
causes damage to another, shall indemnify the latter for the same.
Article 21 Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damages.

RESPONSE TO THE COUNTER ARGUMENTS

4 DOMINGO VS CA GR NO. 104818CIVIL CODE, ART. 20


CIVIIL CODE, ART. 21
FAMILY CODE, ART. 40

Beru cannot be held liable for Bigamy even if she failed


to invoke judicial aid to declare the nullity of her marriage
with Lando. Beru was not cognizant of the fact that Lando
registered the simulated marriage contract, she only knew
about after the complaint of bigamy was filed.
Penal laws are liberally construed in favour of the
accused, as such intent is necessary. Therefore, acts done in
good faith may free any one from liability. In the case at bar,
Berus act of conducting a subsequent marriage was made in
good faith. Beru had no criminal intent to commit Bigamy.
Her act of connivance and failure of seeking judicial aid is an
error of judgement coupled with mistake of fact. Thus, she
should not be held criminally liable for Bigamy.
CONCLUSIONS/RECOMMENDATIONS
Our defense holds water, as provided by law and
jurisprudence, Beru cannot be held liable for Bigamy
because her marriage with Lando was simulated and failed
to comply with the requisites provided by law. Furthermore,
it is highly recommended that we present the local civil
registrar as our witness to testify that the marriage contract
is in fact in valid and has no marriage license number.
We also recommend to present Lando as our witness so
that he will attest to the facts that they simulated their
marriage contract and that their marriage is not valid. His
statement will be highly relevant to this case.

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