When a spouse is liable for bigamy


Persida Acosta

Dear PAO,
My foreigner husband and I have been married for quite some time when I found out that he has been having an affair with my best friend. To make matters worse, I also discovered that they already have a child together and got married thereafter. I am so hurt and so embarrassed by this such that I am contemplating filing a case against the both of them. What case can I file against them?
Sincerely yours,

Dear Maya,
Only a person whose prior marriage has been declared void by the proper courts can legally enter into a second marriage. This is provided under Article 40 of the Family Code of the Philippines, thus:

“Art. 40. 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.”

In relation to this, Article 349 of the Revised Penal Code states that a person who contracts a second marriage before his/her former marriage has been dissolved is guilty of bigamy:

“Art. 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.”

In Morigo vs. People of the Philippines (G.R. No. 145226, February 6, 2004; ponente, former Associate Justice Leonardo Quisumbing), the elements of bigamy have been laid down by the Supreme Court:
“Before we delve into petitioner’s defense of good faith and lack of criminal intent, we must first determine whether all the elements of bigamy are present in this case. In Marbella-Bobis v. Bobis, we laid down the elements of bigamy, thus:

(1) the offender has been legally married;

(2) the first marriage has not been legally dissolved, or in case his or her spouse is absent, the absent spouse has not been judicially declared presumptively dead;

(3) he contracts a subsequent marriage; and

(4) the subsequent marriage would have been valid had it not been for the existence of the first.”
Applying the foregoing to your situation, you may file a bigamy case against your husband and his second wife since your marriage has not yet been legally dissolved and your husband contracted a subsequent marriage.
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 dearpao@manilatimes.net


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