NOTES ON BIGAMY

(Menchero Case)
Article 349, RPC

* Elements of Bigamy:

1. That the offender has been legally married;

2. That the marriage has not been legally dissolved;
3. That he contracts a second or subsequent marriage;
4. That the second or subsequent marriage has all the
essential requisites for the marriage’s validity.

* Causes which may produce the legal dissolution of the first marriage:

1. Death of one of the contracting parties;

2. Judicial decree annulling a voidable marriage;
3. Judicial declaration annulling a voidable marriage.

Notes On the Above:

a) The first marriage must be valid;

b) It is now settled that the fact that the first marriage is void from the very
beginning is not a defense in a bigamy charge. There is a need of a judicial
declaration of the fact that the marriage of a person is void before that person can
marry again, otherwise the second marriage is void  (Wiegel vs. Sempio-Diy, 143
SCRA 499).

c) Parties to a marriage should not be permitted to judge its nullity, only competent
courts having such authority.  Prior to such declaration of nullity, the validity of the
first marriage then assumes the risk of being prosecuted for bigamy (Landicho vs.
Relova, 22 SCRA 731, 735). The civil case for annulment of the first marriage,
therefore, does not pose a prejudicial question as to warrant the suspension of the
trial and proceedings in the criminal case for bigamy  (Roco, et al. vs. Cinco, et al.,
68 OG 2952, citing People vs. Aragon, 95 Phil 357, 369).

d) BUT, the validity of second marriage is a prejudicial question to be liable for

bigamy. This presupposes that a civil case questioning the validity of the second
marriage was filed in order to become a prejudicial question. Said civil action must
be decided before the prosecution for bigamy can proceed (Merced vs. Hon. Diez,
et al., 109 Phil 155).

e) The second spouse is not necessarily liable for bigamy. Whether or not the

second spouse should be included in the information is a question of fact that was
determined by the fiscal who conducted the preliminary investigation in this case
(People vs Nepomuceno, Jr., 64 SCRA 518).

f) Bigamy is not a private crime but a public offense  (People vs. Concepcion, CA
OG 2878).

g) The defense has the burden of proof of the dissolution of first marriage.

h) The second marriage must have all the essential requisites for validity. Article 3
of the Family Code enumerates the three formal essential requisites for valid
marriage.  A married license issued before or at the time of marriage is one of them.
Thus, when the second marriage took place one day before the issuance of a
 marriage license, such marriage is void ab initio under Art. 80 (3) of the Civil
Code. Now, Article 4, FC.  If the second marriage is void, there is no bigamy
(People vs. De Lara, CA 51 OG 4079).

* Elements of Marriage contracted against legal provisions of law (Article 350, RPC):

1. That the offender contracted a marriage.

2. That he knew at the time that:
a. the requirements of the law were not complied with; or,
b. the marriage was in disregard of a legal impediment.

* Requirements of law for valid marriage:

1.  Legal capacity of the contracting parties who must be male and female;
2.  consent  freely  given  in  the  presence  of   the solemnizing officer;
3. authority of the solemnizing officer;
4.  a  valid marriage license, except in  marriages  of exceptional character;
5.  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 (Articles 2 and 3, FC).

Notes:

* The undissolved first marriage is a legal impediment to the second marriage (People vs
Peralta CA GR No.  13130-R,  June 30, 1955).
 CIVIL CODE PROVISIONS ON MARRIAGE:

* On Marriage License:

* No license = void (as in M.L. was issued 1 day before marriage, P. vs. de Lara)
* With license = valid, it does not matter that the license was illegally obtained,
but without  prejudice to criminal prosecution

* Lack of formal requisites of marriage i.e., marriage certificate, presence of 2 witnesses of

legal age, place of celebration, marriage ceremony (Art. 55 & 57, NCC) does not affect the
validity of marriage (Fernandez vs. Soriano, CA, 1814-R, 12-23-49);

* The license should be issued in the place where either party resides, IF NOT marriage
still valid provided all the ESSENTIAL requisites are present. The solemnizing officer
does not have to investigate whether or not the license has been properly issued (P. vs.
Jausen, 54 Phil. 176);

* No marriage license needed in religious marriages (only to ratify), if already legally

married. It is merely considered as purely religious ceremony (Art. 77, NCC);

* On Proof of Existence of Marriage: The marriage certificate is the best evidence. But it is
not the only evidence that can be admitted. Testimony of witnesses may be admitted on
this point (US vs. Memoracion, 34 Phil 633; P. vs. Alday, 59 OG 411). There is even the
legal presumption "that a man/woman reporting themselves as husband  & wife have
entered into a lawful contract of marriage (Sec. 5 <bb>, Rule 131, RRC);

VOID VOIDABLE

1. Always void; cannot be 1. Can be ratified

ratified
2. Always void 2. Valid until annulled
3. Does not need judicial 3. Needs judicial decla-
declaration tion
4. Can be attacked directly or 4. Only direct attack
collaterally

*  Example of Void Marriage: those solemnized without a marriage licenses, save

exceptional marriages. Reason:  lack of essential one of requisites of marriage (Article 80
#3, NCC);

On Marriages:

Article 4: * ABSENCE of the essential or formal requisites of marriage shall render the
 marriage void ab initio;

* DEFECT in any of the essential requisites (only) shall render the marriage
voidable  (See  also Art. 43, FC);

* IRREGULARITY in the formal requisites shall not affect the validity of the
marriage;