UNIVERSITY OF SAN CARLOS SCHOOL OF LAW AND GOVERNANCE

LEGAL WRITING EH408

CLIENT OPINION LETTER

Submitted by:

Lambayan, Jeff Gerard P.

Submitted to:
Judge Yvonne Artiaga

APRIL 2019
April 16, 2019

Ms. Beru Meter

N. Bacalso St.,
Labangon, Cebu City

Dear Ms. Beru Meter:

This legal opinion seeks to answer your question on Whether, under our civil code and
other laws, a simulated marriage entered into by Beru for the purpose of discouraging a woman
from pursuing a man and that this marriage entered into lacks some of the essential and formal
requisite of marriage which was not also judicially nullified may affect the validity of her present
marriage with Owen and render it bigamous.

The Facts

Owen, the complainant and Beru, the accused, are married since 2012. Along the road of
their marriage, they had a happy family. However, in the year 2018, this sequence was
interrupted when their marriage was challenged. Owen filed a complaint for Bigamy against
Beru.
Owen alleged that Beru had a previous marriage. Accordingly, this marriage was
solemnized last 2010 with a man named Lando, who was her former partner.
Beru, on her answer, admitted that she was married with Lando. However, that marriage
was fictitious in character. It was a simulated marriage proposed by Lando. Accordingly, Lando
at that time impregnated another woman named Corde. Lando then asked her to marry him in order
to discourage Corde from pursuing him. He asked Beru to sign a marriage contract for the purpose
of only showing Corde that he is already married. Their marriage was without marriage ceremony
and that after their marriage, they did not live together as husband and wife. According to Beru, it
was only after the bigamy complaint was filed when she discovered that Lando registered their
simulated marriage contract with the absence of her knowledge and consent.

Issues

Whether, under our civil code and other laws, a simulated marriage entered into by Beru
for the purpose of discouraging a woman from pursuing a man and that this marriage entered into
lacks some of the essential and formal requisite of marriage which was not also judicially nullified
may affect the validity of her present marriage with Owen and render it bigamous.
Rules or laws Applicable

 Article 349 of the Revised Penal Code – 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 judgment rendered in the proper proceedings.
 Article 3 of the Revised Penal Code. Definition – acts and omissions punishable by law are
felonies (delitos).
Felonies are committed not only be means of deceit (dolo) but also by means of fault
(culpa).

There is deceit when the act is performed with deliberate intent and there is fault when the
wrongful act results from imprudence, negligence, lack of foresight, or lack of skill.

 Article 1345 Civil Code – Simulation of a contract may be absolute or relative. The former
takes place when the parties do not intend to be bound at all; the latter, when the parties
conceal their true agreement.

 Article 1346 Civil Code – An absolutely simulated or fictitious contract is void. A relative
simulation, when it does not prejudice a third person and is not intended for any purpose
contrary to law, morals, good customs, public order or public policy binds the parties to
their real agreement.

 Article 1 of the Family Code – marriage is a special contract of permanent union between
a man and a wman entered into in accordance with law for the establishment of conjugal
and family life. It is the foundation of the family and an inviolable social institution whose
nature, consequences and incidents are governed by law and not subject to stipulation,
except that marriage settlements may fix the property relations during the marriage within
the limits provided by this code.

 Art. 4 of the Family Code – The absence of any of the essential or formal requisites shall
render the marriage void ab initio, except as stated in Article 35 (2).

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.

 Art. 2 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.

  Art. 3 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.

Analysis of the law and how it applies to the relevant facts

1. There was absence of any criminal intent or malice

The contention and the action that Ms. Beru is guilty of the crime of bigamy cannot prosper
because the criminal intent or malice was not present when she contracted the subsequent marriage.

In a crime of bigamy, malice and criminal intent is required. The revised penal code in itself
punishes and establishes the penalty for bigamy.

Article 349 of the Revised Penal Code, provides:

Article 349. Bigamy – 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 judgment rendered in the proper proceedings.

This should be read in connection with Article 3 of the Revised Penal Code, which states that:
Article 3. Definition – acts and omissions punishable by law are felonies (delitos).
Felonies are committed not only be means of deceit (dolo) but also by means of
fault (culpa).chanrobles virtual law library
There is deceit when the act is performed with deliberate intent and there is fault
when the wrongful act results from imprudence, negligence, lack of foresight, or
lack of skill.

In this case of Ms. Beru, it is clear that she truthfully believed that her previous marriage
was void and that she can validly enter into a marriage once again. Accordingly, there was no
criminal or evil intent on her part because she knew already that she entered into a simulated
marriage or a fictitious marriage. Ms. Beru and Lando knew and agreed that they are not to be
bound by this contract. That agreement already established the invalidity or the void marriage.
After their marriage, they did not even live together and their marriage was not even held in a
marriage ceremony. With the foregoing facts there is absence of any doubt that she truthfully
believed that since they agreed not to be bound by the contract, she can enter into a subsequent
valid marriage because she knew at the outset that there was no previous marriage to speak.
Hence, in accordance with the abovementioned provisions and facts, Ms. Beru did not have
any criminal or evil intent in entering into a valid subsequent marriage with Owen.

2. Simulated contract is strictly prohibited and void

Another note why the case of bigamy against Ms. Beru is untenable is because it was
clearly a simulated contract or a fictitious contract which is considered void under our laws.
Article 1345 of the Civil Code provides:

Article 1345 – Simulation of a contract may be absolute or relative. The former

takes place when the parties do not intend to be bound at all; the latter, when the
parties conceal their true agreement.

This rule should be applied in relation to the subsequent article. Accordingly, under Article
1346 of the Civil Code:

Article 1346 – An absolutely simulated or fictitious contract is void. A relative

simulation, when it does not prejudice a third person and is not intended for any
purpose contrary to law, morals, good customs, public order or public policy binds
the parties to their real agreement.
It should be noted that a marriage in itself is a contract.

It must be noted that a marriage is a special contract. As provided under Article 1 of the
Family Code:

Article 1 – marriage is a special contract of permanent union between a man and a

woman entered into in accordance with law for the establishment of conjugal and
family life. It is the foundation of the family and an inviolable social institution
whose nature, consequences and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the property relations during
the marriage within the limits provided by this code.

In the case at hand, there was no intent of both Ms. Beru and Lando to be bound by the
marriage contract. The purpose why they entered the contract is to discourage the pursuer of Lando
whom he impregnated. In addition, it clear from the proceedings of how the marriage unfold that
there was no intention to be bound. Also after the marriage, it was expressly provided that Ms.
Beru and Lando did not even live together which indicates a substantial factor as to the existence
of a valid previous marriage entered by them. With all the foregoing, it is clear that they entered
into an absolute simulated contract which, according to the above provisions, is void. As provided
in the case of Valerio v. Refresca the main characteristic of an absolute simulation is that the
apparent contract is not really desired or intended to produce legal effect or in any way alter the
juridical situation of the parties.1

3. The previous marriage entered by Ms. Beru was unmistakably void ab initio

Finally, Ms. Beru cannot be charged with the crime of bigamy because at the outset, there
was no valid marriage to be considered.

Article 4 of the Family strictly provides:

Art. 4 – The absence of any of the essential or formal requisites shall render the
marriage void ab initio, except as stated in Article 35 (2).
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.

This should be read in connection with Article 2 and 3 of the Family Code. Article 2,
establishes the following:

Art. 2. 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.

Subsequently, under Article 3 of the same code:

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 declaration that they take

1
G.R. No. 163687, March 28, 2006, 485 SCRA 494, 500-501
 each other as husband and wife in the presence of not less than two witnesses of
legal age.

In the case at bar, there was the absence of the consent freely given in the presence of the
solemnizing officer, authority of the solemnizing officer and marriage ceremony. Ms. Beru and
Lando settled their simulated marriage through the signing of marriage contract. As provided under
the abovementioned provisions, this act is not enough to establish a valid marriage. There is a clear
and unambiguous absence of majority of the formal and essential requisites.
Although it is an established rule that in order to contract a subsequent marriage, there is a
need of a judicial nullification of the marriage, absence of which would render the subsequent
marriage voidable. Judicial nullification is a requirement even though your previous marriage was
void ab initio on the ground provided under Article 4 of the Family Code. This rule is not
applicable in this case because this rule involves an absence of a marriage ceremony which, in
accordance with the case of Morigo v. People, is tantamount to no marriage contracted at all.
Hence, in the case at hand, Ms. Beru’s subsequent marriage cannot be considered bigamous
because in her previous marriage there was no marriage ceremony but only a signing of a marriage
contract.