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Payad, Azanith Ann B

11583371 G04
Legal Opinion
Dear Mr. X,
Here is the legal opinion that you requested. The facts, based on my
understanding, are as follows:
On December 10, 1999, you and Y, both 16 years of age at that time,
entered into a secret marriage in the Manila City Hall without obtaining a
marriage license. You lived separately from each other after the marriage
because you were still both living with your respective parents. Three years after
the celebration of the said marriage, you and Y broke up and never heard from
each other again. Believing that your marriage with Y is invalid, you married Z.
However, you and Y met and you found out that Y has not yet moved on from
your relationship and she wants to get back together with you. You declined
because you are happily married to Z with 3 children. Hence, Y is filing a case for
bigamy against you.
Based on the facts, you want to know: a.) whether or not the criminal case
of bigamy will prosper; and b.) if yes, what would be the possible defense against
the charge.
Bigamy is basically the act of willfully and knowingly marrying again while
the first marriage is still subsisting. It is a criminal offense punished under the
Revised Penal Code as the contracting of 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 proceeding.1
In a case for bigamy, all the following matters or elements must be shown
by the prosecution: (1.) The offender has been legally married; (2.) 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.) He/she
contracts a second or subsequent marriage; and (4.) The second or subsequent
marriage has all the essential requisites for validity.
The first element of bigamy as a crime requires that the accused must
have been legally married. For a marriage to be valid and legal, the parties must
comply to all the essential and formal requisites provided in the Family Code, to
Art. 2. No marriage shall be valid, unless these essential requisites are
(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
1 Revised Penal Code, Article 349.

declaration that they take each other as husband and wife in the presence
of not less than two witnesses of legal age.
The absence of any of the essential or formal requisites shall render the
marriage void ab initio. 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. 2
In your case, you entered your marriage with Y when you were only 16
years old. Being a minor vitiates your legal capacity to contract. Hence, the first
essential requisite for a valid marriage is already absent. The presence of a valid
marriage license, on the other hand, is a formal requisite of marriage. Thus, the
absence of a marriage license for you and Y shall also render your marriage null
and void. Under the principle of retroactivity of a marriage being declared void ab
initio, the you and Y were never married from the beginning. The contract of
marriage is null; it bears no legal effect.
So far, we have adduced that your first marriage with Y is void ab initio. It
does not tantamount to you being legally married, which is the first element for
the crime of bigamy. You may now argue that a void marriage is deemed never to
have taken place at all and, hence, there is no first marriage to speak of.
However, I must remind you that the Family Code expressly states that a judicial
declaration for absolute nullity of marriage must first be obtained for the purpose
of contracting a second marriage. 3 In a decided case, Te v CA4, the Supreme
Court held that even if a marriage is void, it is deemed valid until judicially
declared otherwise. If the prosecution has proven that you have not obtained the
said judicial declaration, despite the fact that your first marriage was void ab
ignition, the charge for bigamy against you will definitely prosper.
Invoking good faith that you believed that your first marriage was invalid
will not be much of a good defense. As a general rule, mistake of fact or good
faith of the accused is a valid defense in a prosecution for a felony by dolo; such
defense negates malice or criminal intent. However, ignorance of the law is not
an excuse because everyone is presumed to know the law.
You may obtain a petition for declaration of nullity of marriage as soon as
possible and hope that Y has not yet filed the case for bigamy. But once the
charge for bigamy has been filed, obtaining a judicial decree of the nullity of the
first marriage is immaterial since the crime has already been consummated. This
was emphasized in the case of Mercado v Tan5 wherein 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.
Nevertheless, I must emphasize that due to the apparently conflicting
decisions on these issues regarding bigamy, each case must be examined
separately. For instance, in Morigo v. People6, the respondent was acquitted from
bigamy despite the fact that he did not obtained a judicial declaration of nullity of

Family Code of the Philippines, Article 4.

Id., Article 40.
Te v. Court of Appeals, G.R. No. 126746, November 29, 2000.
Mercado v. Tan, G.R. No. 137110, August 1, 2000.
Morigo v. People, G.R. No. 145226. February 06, 2004.

his first marriage. The Supreme Court held that no marriage ceremony at all was
performed by a duly authorized solemnizing officer. The parties merely signed a
marriage contract on their own. The mere private act of signing a marriage
contract bears no semblance to a valid marriage and thus, needs no judicial
declaration of nullity. Such act alone, without more, cannot be deemed to
constitute an ostensibly valid marriage for which petitioner might be held liable for
bigamy unless he first secures a judicial declaration of nullity before he contracts
a subsequent marriage.
In this regard, I would like to know the exact details regarding the
celebration of your first marriage such as: 1.) the presence and authority of the
solemnizing officer during the said marriage; 2.) the manner of personal
declaration between you and Y 3.) the witnesses present during the marriage
ceremony; and all other particular facts such as the contracts you signed, and the
likes. These details concerning your first marriage is essential to establish the
existence of the permanent union between you and Y. If we can prove that the
secret marriage you entered with Y bears no semblance to a valid marriage, we
may invoke the case of Morigo v. People. Taking this argument to its logical
conclusion, for legal purposes, you were not validly married to Y at the time you
contracted the marriage with Z. 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
speak of. We can use this as a defense from the charge of bigamy against you.
Please let me know if I can be of further service to you in this matter.
Azanith Ann B. Payad