• Cohabitation not element of crime of bigamy

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    I would like to seek advice in behalf of a good friend of mine. Her husband abandoned her and their three children many years ago. She tried to ask his relatives for help but they did not want to get involved. She learned that he married another woman but is not sure whether they are still living together. Is there any way she can possibly file a case for bigamy?
    Anton

    Dear Anton,
    Bigamy is considered a crime under our jurisdiction. To be more specific, it is expressly provided for under Article 349 of the Revised Penal Code of the Philippines (RPC) 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 judgment rendered in the proper proceedings.”

    In order for the prosecution of the crime of bigamy to prosper, the following elements must be clearly established: (1) The offender is legally married; (2) Said 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) A second or subsequent marriage is contracted; and (4) Such second or subsequent marriage has all the essential requisites for a valid marriage.

    In the situation of your friend, it is only essential for her to establish those four elements if she desires to pursue a criminal complaint for bigamy against her husband. It is not crucial for her to prove, or even assert, that her husband and his alleged second wife have lived together or are still living together because such fact of cohabitation is not an element of the crime of bigamy.

    Your friend, however, must take into consideration when such marriage transpired. This is material insofar as prescription of crimes is concerned. As earlier mentioned, the penalty imposed by law for the crime of bigamy is prision mayor, an afflictive penalty. It bears stressing that crimes punishable by afflictive penalties prescribe in fifteen (15) years from the date of the commission thereof (Article 90 (2), RPC). Correspondingly, if the alleged second marriage of her husband was contracted less than fifteen (15) years ago, she may still pursue the filing of the case. But if such second marriage was entered into more than fifteen (15) years ago, the complaint will no longer prosper as the crime has already prescribed.

    We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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