• Dissolve first marriage first before contracting second one

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    My mother relayed to me that she married my father when he was still below 18 years of age. This happened with the help of fixers in one of the cities here at the National Capital Region. My mother discovered after she obtained a certificate of no- marriage that my father contracted another marriage during the time of their marriage. She intends to file a case for bigamy against my father; however, our relative who is working in a law firm advised her that there is no need to file such case, because her marriage with my father is void from the very beginning. He even explained to her that the absence of essential requisites of marriage would render her marriage void. What shall we do?
    Keir

    Dear Keir,
    Your relative is correct as to his statement that the absence of essential requisites of marriage would render the marriage void. If, however, the void marriage, for any reason, was already registered, you need to go to court for that marriage to be declared void. It is not for the parties to decide whether the marriage is void or not.

    Article 40 of the Family Code of the Philippines 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 Supreme Court said in Montaṅez vs Cipriano (G.R. No. 181089, October 22, 2012), that:

    “And in Jarillo v. People (G.R. No. 164435, September 29, 2009, 601 SCRA 236), applying the foregoing jurisprudence, we affirmed the accused’s conviction for bigamy, ruling that the moment the accused contracted a second marriage without the previous one having been judicially declared null and void, the crime of bigamy was already consummated because at the time of the celebration of the second marriage, the accused’s first marriage which had not yet been declared null and void by a court of competent jurisdiction was deemed valid and subsisting.

    Here, at the time respondent contracted the second marriage, the first marriage was still subsisting as it had not yet been legally dissolved. As ruled in the above-mentioned jurisprudence, the subsequent judicial declaration of nullity of the first marriage would not change the fact that she contracted the second marriage during the subsistence of the first marriage. Thus, respondent was properly charged of the crime of bigamy, since the essential elements of the offense charged were sufficiently alleged.

    Respondent claims that Tenebro v. CA (G.R. No. 150758, February 18, 2004, 423 SCRA 272) is not applicable, since the declaration of nullity of the previous marriage came after the filing of the Information, unlike in this case where the declaration was rendered before the Information was filed. We do not agree. What makes a person criminally liable for bigamy is when he contracts a second or subsequent marriage during the subsistence of a valid marriage.”

    Bigamy is committed by 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 in the proper proceedings (Article 349, Revised Penal Code of the Philippines).

    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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