LLB 136: Law Office Memorandum

TO: Lolita A. Soberano, Senior partner

FROM: Jeff Gerard P. Lambayan
DATE: April 16, 2019
RE: Beru v. Owen – Bigamy case; Defenses in Bigamy
_____________________________________________________________

STATEMENT OF THE ASSIGNMENT

This is a case of bigamy initiated and forwarded by Owen, the complainant
and Beru, the accused. For this reason, this memorandum is for the purpose
of defending Beru which will provide for her defenses against the allegations
made by Owen.

FACTS
Marriage, as a special contract of permanent union, generally
encounters various challenges along the way. Challenges that are concrete and
real. Challenges that may cause court actions and resolutions. This case dwells
on the field and corners of marriage. Accordingly, a marriage that was
questioned for being bigamous.
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.
 ISSUE/QUESTION PRESENTED

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.

BRIEF ANSWER
No. Because, under Article 1346 in relation to Article 1345 of the Civil Code,
absolute simulation of a contract is void. Subsequently, under Article 4 of the
Civil Code, a marriage is considered void ab initio if any of the essential or
formal requisites of marriage are absent. Finally, under the Revised Penal
Code, bigamy as a felony requires criminal intent or malice.

POSSIBLE COUNTER-ARGUMENTS
 Even though the marriage is void ab intio, Beru still cannot enter into
a subsequent valid marriage without first nullifying the previous one.
In accordance with Article 40 of the Family Code, it provides
that:
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.
 The requisites of a crime of bigamy is already concretized in this case.
The elements of the crime of bigamy, therefore, are:
(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) That he contracts a second or subsequent marriage; and
(4) That the second or subsequent marriage has all the essential
requisites for validity.
 DISCUSSION/ANALYSIS
A case of bigamy was initiated and forwarded by Owen, the complainant
and Beru, the accused. The contentions of the complainant, however, is
untenable and unmeritorious on the following grounds:

1. There was absence of any criminal intent or malice

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).
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.
Felonies, as provided under the aforementioned rule, are acts and
omissions punishable by the revised penal code.1 In accordance with article 3
of the same code, felonies are committed in two ways: deceit or fault. The
crime of bigamy being embodied under this code inherits the character and
nature of a felony, which follows that it should be acted with malice or
criminal intent.
In the case at bar, there was no criminal intent or malice to speak. Beru
believed in good faith that there was no marriage to be disputed because first
it was only simulated, second it was without a marriage ceremony and third
they did not act or live together as husband and wife after their marriage.
These factors provide that there is a clear good faith on the act of Beru in
entering into a subsequent marriage with Owen believing that her previous
marriage was not legally unenforceable and thus void.

1
The Revised Penal Code Luis B. Reyes pg. 33
 Hence, it is clear and unmistakable that since bigamy is considered a
felony under the field of revised penal code, it follows that criminal intent or
malice is a requirement, and this element is lacking in this case.
2. Simulated contract is strictly prohibited and void
One of the prevailing factors why the previous marriage between Beru
and Lando is considered void is because it was a “simulated marriage”. This
kind of marriage is unacceptable and contrary to the laws established.
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. As provided
under Article1 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.
One element that caused the attention was the marriage between Beru and
Lando is an absolute simulation. 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.2 Accordingly, it takes place when
the contracting parties agreed that they will not be bound by the contract. In
the case at bar, it was unambiguous that the purpose of Beru and Lando in
entering into a marriage contract was to discourage the pursuer of Lando. It is
expressly presented that there was no intent by both of the contracting parties
to truthfully and willingly live their lives together as a married couple as
founded by their actions after they were married and the lack of some of the

2
G.R. No. 163687, March 28, 2006, 485 SCRA 494, 500-501
formal and essential requisites. Without any doubt or vagueness, it was a
simulated contract.
Hence in this case, since it is already established that simulation of
contracts are considered void, it follows that the simulated marriage entered
into by Beru and Lando clearly incorporates a void contract.

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

initio
Finally, the previous marriage between Beru and Lando is considered void
because it does not satisfy the requirements provided for under the Family
Code.
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 each other
as husband and wife in the presence of not less than two
witnesses of legal age.
 As provided under the abovementioned provisions, the absence of any
of the formal or essential requisites shall render the marriage void ab initio or
void from the beginning. In the case at bar, majority of these requisites were
not present. In the essential requisites, the consent freely given before the
solemnizing officer was not existent. The contracting parties, instead of freely
giving their consent before a solemnizing officer, settled with the signing of
the marriage contract. In this account, there is already a violation of law in
accordance with the essential requisites and the absence of consent which is
regarded as one of the important requisites for a valid marriage.
For the formal requisites, there was no authority of a solemnizing
officer and a marriage ceremony. In the case at bar, it was clear that the
contracting parties settled into the signing of a marriage contract. There was
no clear reference of any witnesses or a solemnizing officer, including thereof
a marriage ceremony. Although it is an established rule that before a party
from a void marriage can contract another, he or she must obtain a judicial
nullification of the previous marriage. However, this rule is not absolute.
Former Dean Alex Monteclar, a known authority of family law, cited a
difference between the case of Mercado v. Tan and Morigo v. People with
regards to obtaining a judicial nullification of marriage.
“. . . In Mercado v. Tan, the first marriage was void because of
the absence of a marriage license. In the Morigo case, the first marriage
was void because of the absence of marriage ceremony. However, in
the Mercado case, the Court ruled that there is a need for the judicial
declaration of nullity of the first marriage; otherwise, the accused may
be convicted of bigamy. But, in the Morigo case, the Court said there is
no need to have the first marriage declared void as in the eyes of the
law, the marriage never existed. What then is the difference between
the two? The observation of this author is that if the nullity of marriage
is anchored on the absence of marriage ceremony, then it is as if no
marriage took place or that there is no marriage at all. However, if the
nullity is based on the absence of a valid marriage license, there exists
a marriage but it is void. In other words, what is contemplated by
Article 40 of the Family Code as the void marriage that must be
declared void first before one can contract a subsequent marriage is one
that must exist although it is void.”3
It must be noted that those void marriages because of absence of a
marriage ceremony, does not require a judicial nullification of their marriage
in order to contract another one. The distinction provided in the
aforementioned cases establishes that a marriage ceremony is substantially
required in order to contract and create a valid marriage. In the case at bar,
marriage ceremony was fictitious. Lando persuaded Beru to sign the marriage
contract but there was no marriage ceremony in the first place.
Hence with this regard, absence of any of the formal or essential
requisites renders the marriage of the parties void ab initio. Although there

3
Monteclar, Compedium on the Law on Persons and Family Relations
must be a judicial nullification needed to contract a subsequent marriage, it is
provided under the case of Morigo v. People that absence of a marriage
ceremony is tantamount to no marriage at all hence there is no need to obtain
a judicial nullification of the previous marriage.

CONCLUSION
With all the foregoing being established, this case of Ms. Beru is strong
and firm and defenses should be made to protect her right. This case quashes
the allegations of bigamy against Ms. Beru on the grounds expressly stated
above, namely: There was absence of any criminal intent or malice, simulated
contract is void and the previous marriage entered by Beru was unmistakably
void ab initio in accordance with Article 2, 3 and 4 of the Family Code.
As to the criminal intent, bigamy is embodied under the revised penal
code and is considered a felonious act. With this, it is clear and undisputable
that it requires malice or criminal intent on the part of the person governing a
subsequent marriage. It was provided in the abovementioned discussions that
there was absence of those elements, hence present marriage is not bigamous.
For simulated contract, it was unmistakable that the marriage contract
entered by the parties was a simulation or it was not their intention to be bound
by it. The case at hand is considered to be a fictitious marriage wherein it does
not produce legal and real rights, hence previous marriage is considered void
from the beginning.
Finally for the lack of some of the essential and formal requisites, it is
noted that indeed the previous marriage was characterized by a void ab initio
marriage for there was a dramatic insufficiency of the essential and formal
requisites provided under the family code. Hence the previous marriage
should be null and void at the very beginning.
With these, it is our recommendation to challenge the case of bigamy against
Ms. Beru for there was a clear misinterpretation of the law.