I married my husband Ed on June 20, 2011. Our relationship went smoothly in the first two years. On the third year, however, he began to neglect his duties as a husband, and as a father to my son. I discovered that he actually has another family and that is why he seldom comes home. I also found out that he married his mistress when I obtained a Certificate of No Marriage or Cenomar from the Philippine Statistics Authority. I told him that I will file a case against him for bigamy but he reasoned out that he cannot be made liable for it because the second marriage he entered was void. Ed further claimed that the affidavit of cohabitation for five years that they submitted to support the marriage contract is false and it follows that the marriage they had is not valid. If he can prove that the second marriage is void, would that mean that he is also absolved from the crime of bigamy? Please guide me.
The crime of bigamy is punishable under Article 349 of the Revised Penal Code of the Philippines. The law states 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 proper proceedings.”
The elements of bigamy are the following:
“1. That the offender has been legally married;
2. That 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;
4. That the second or subsequent marriage has all the essential requisites for validity” (Mercado vs. Tan, G.R. No. 137110, August 1, 2000; ponente, former Chief Justice Artemio Panganiban).
Your husband is liable for bigamy because he contracted a second marriage despite the fact that he is still legally married to you, and your marriage has not yet been dissolved by the court. The nullity of the second marriage because of the defect in the affidavit of cohabitation is a non-issue and is not a defense for the crime of bigamy.
In the case of Santiago vs. People of the Philippines (G.R. No. 200233, July 15, 2015), the Supreme Court, through Chief Justice Maria Lourdes Sereno ruled:
“The Certificate of Marriage, signed by Santos and Santiago, contained the misrepresentation perpetrated by them that they were eligible to contract marriage without a license. We thus face an anomalous situation wherein petitioner seeks to be acquitted of bigamy based on her illegal actions of (1) marrying Santos without a marriage license despite knowing that they had not satisfied the cohabitation requirement under the law; and (2) falsely making claims in no less than her marriage contract.
“We chastise this deceptive scheme that hides what is basically a bigamous and illicit marriage in an effort to escape criminal prosecution. Our penal laws on marriage, such as bigamy, punish an individual’s deliberate disregard of the permanent and sacrosanct character of this special bond between spouses. In Tenebro v. Court of Appeals, we had the occasion to emphasize that the State’s penal laws on bigamy should not be rendered nugatory by allowing individuals ‘to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment’”
Applying the decision in your situation, your husband cannot evade criminal liability for bigamy by simply claiming that the second marriage he contracted is void.
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org