To: Amy D.

Ala, Associate Attorney

From: Lorebeth L. España, Supervising Attorney

Date: April 16,2019

Re: Beru vs Owen – Bigamy Case; Defenses in Bigamy

_____________________________________________________________

You have tasked me to prepare a legal memorandum concerning the

case of our client Miss Beru who is charged with Bigamy. I have presented
here the key facts, issues, our possible defense, applicable jurisprudence and
laws that can be our basis to defend our client, including possible
counterarguments from the opposing and our answer to that counter
arguments.

KEY FACTS

Our client, Beru got married in 2012 with her husband Owen. Owen
filed a complaint for bigamy against Beru in 2018. Owen claimed that Beru
had contracted a prior marriage in 2010 with a man named Lando. Beru denied
her husband’s allegations. She admitted, however, that she was a party in a
simulated marriage in 2010 with her first boyfriend Lando. The reason was
that Lando at that time impregnated another woman named Corde, and in
order to discourage Corde from pursuing him, Lando convinced Beru to sign
a simulated marriage contract for the purpose of only showing Corde that he
was married already. Beru said that she and Lando did not even live together
as husband and wife after the simulated marriage. It was only after the bigamy
complaint was filed in court when Beru discovered that Lando in fact
registered the simulated marriage contract without her knowledge much less
consent.

ISSUES

1.) Whether the question of the validity of the marriage between Beru and
Lando should be resolved first before the criminal proceeding can proceed

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2.) Whether Beru and Lando’s act of signing a simulated marriage contract
consisted of a valid marriage

3). Whether Beru can be held liable for Bigamy for conducting a subsequent
marriage with Owen when she had a previous subsisting marriage with Lando

BRIEF ANSWERS

1). Yes, the validity of Beru’s marriage with Lando shall be resolved first as
it constitutes a prejudicial question to the criminal case of bigamy filed against
her by her husband Owen since it is determinative whether or not the criminal
case shall prosper.

2.) No, because the essential and formal requisites for a valid marriage was
not complied. Although there is a marriage contract, but a marriage contract
is not an essential nor a formal requisite for a valid marriage.

3.) No, Beru cannot be held guilty for the crime of Bigamy because her first
marriage with Lando was not valid, hence one of the essential requisites for
the crime of Bigamy to be committed is not present.

DISCUSSIONS/ANALYSIS

The first issue to be resolved in this case is whether the issue of the
validity of the marriage between Beru and Lando should be resolved first
before the prosecution for the crime of Bigamy can proceed. In sum, the issue
on the validity serves as a prejudicial question to the crime of Bigamy indicted
against Beru. A prejudicial question arises in a case, when the resolution of
which is a logical antecedent of the issue involved therein, and the cognizance
of which pertains to another tribunal.1 Thus, in matters of prejudicial question,
there are always two cases involved, one is a criminal case and the other is a
civil case. The criminal case will have to be suspended because the issue in
the civil case is determinative of the guilt or innocence of the accused in the
criminal case.

As enunciated in Article 36 of the Civil Code:

1
Zapanta vs Montesa 4 SCRA 510

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 “Prejudicial questions, which must be decided before any criminal
prosecution may be instituted, or may proceed, shall be governed by our rules
of court which the Supreme Court shall promulgate and which shall not be in
conflict with the provisions of this Code.”2

In the same manner, the Supreme Court held in a case of People v Adelo
Aragon:

“Prejudicial question has been defined to be that which arises in a case,

the resolution of which (question) is a logical antecedent of the issue involved
in said case, and the cognizance of which pertains to another tribunal. The
prejudicial question must be determinative of the case before the court; this
is its first element. Jurisdiction to try said question must be lodged in another
tribunal; this is the second element.

In an action for bigamy, for example, if the accused claims that the first
marriage is null and void and the right to decide such validity is vested in
another tribunal, the civil action for nullity must first be decided before the
action for bigamy can proceed; hence, the validity of the first marriage is a
prejudicial question.”3

As supplemented by Section 7 of Rule 11 of the Rules of Court, the

elements of a prejudicial question are:

“(a) the previously instituted civil action involves an issue similar or

intimately related to the issue said in the subsequent criminal action, and

(b)the resolution of such issue determines whether or not the criminal

action may proceed.”4

Thus, Beru shall institute a civil case to resolve the validity of her first
marriage with her former boyfriend Lando. As such, this action shall bar the
criminal action from proceeding as it constitutes a prejudicial question to the
crime of Bigamy charged against Beru.

2
CIVIL CODE, ART. 36
3
People v Adelo Aragon G.R. No. L-5930, February 17, 1954
4
RULES 11 OF RULES OF COURT, SECTION 7

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 The second issue to be resolved in this case is whether the simulation
of a marriage contract between Lando and Beru resulted to the celebration of
a valid marriage. It is of primary importance to revisit the essential and formal
requisites of a valid marriage. As stated in Article 2 and 3 of the Family Code:

“No marriage shall be valid, unless these essential requisites are

present:

(1) Legal capacity of the contracting parties who must be a male and a
female; and
(2) Consent freely given in the presence of the solemnizing officer.5

The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in cases provided for Chapter 2 of
this Title; and
(3) 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.6

Furthermore, the absence of any of the essential or formal requisites

shall render the marriage VOID. It is expressly laid down in Article 4 of the
Family Code, which provides:

“The absence of any of the essential or formal requisites shall render

the marriage void ab initio, except as stated in Article 35(2)

A defect in any of the essential requisites shall render the marriage

voidable as provided in Article 45.

An irregularity in the formal requisites shall not affect the validity of the
marriage but the party or parties responsible for the irregularity shall be
civilly, criminally and administratively liable. ”7

5
FAMILY CODE, ART. 2
6
FAMILY CODE, ART. 3
7
FAMILY CODE, ART.4

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 In the case at bar, it is undeniable that Lando and Beru agreed to sign a
simulated marriage contract for the purpose of showing Corde whom Lando
impregnated that Lando is already married. However, this does not prove that
the marriage between them was valid. As shown above, a marriage contract is
not an essential nor a formal requisite for a valid marriage. Assuming
arguendo that the act of signing the marriage contract was an act purporting
that they declare each other as husband and wife and that they both consented,
nevertheless, this was not done during a marriage ceremony in front of a
solemnizing officer. The signing was done privately among the parties.

In the case of People vs Morigo, the Court declared that absence of

marriage ceremony renders the marriage void. Thus, a marriage without a
ceremony as the parties were just made to sign the marriage contract by the
solemnizing officer because the latter was in a hurry for another appointment
makes the marriage void. 8

The absence of such negates the existence of the essential and formal
requisites namely: the consent freely given in the presence of a solemnizing
officer, authority of the solemnizing officer, a marriage ceremony where the
parties appear before the solemnizing officer personally declaring that they
take each other as husband and wife in the presence of two witnesses.

Furthermore, it has not been shown that they procure a marriage, and
obviously their situation does not fall upon the exemptions provided by law
where a marriage license is not required.

Thus, the marriage between Lando and Beru is void ab initio in

accordance with Article 4, since they failed to obtain the essential and formal
requisites provided by law.

As held by the Supreme Court in the case of Cariño v. Cariño the court
declared that the marriage between the parties was void ab initio for the failure
of the parties to secure a valid marriage license even if there was a marriage
contract. The court ruled that:

8
People vs Morigo G.R. No. 145226

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“Under the Civil Code, which was the law in force when the marriage of
petitioner Susan Nicdao and the deceased was solemnized in 1969, a valid
marriage license is a requisite of marriage, and the absence thereof, subject
to certain exceptions, renders the marriage void ab initio.

In the case at bar, there is no question that the marriage of petitioner and the
deceased does not fall within the marriages exempt from the license
requirement. A marriage license, therefore, was indispensable to the validity
of their marriage. This notwithstanding, the records reveal that the marriage
contract of petitioner and the deceased bears no marriage license number
and, as certified by the Local Civil Registrar of San Juan, Metro Manila, their
office has no record of such marriage license.”9

Furthermore, marriage is a contract governed by law and the law states

that contracts which are simulated are void or inexistent, particularly Article
1409 of the Civil Code enumerates contracts which are void or inexistent, the
said article states that:

“Art. 1409. The following contracts are inexistent and void from
the beginning:

xxx xxx xxx

(2) Those which are absolutely simulated or fictitious; 10

xxx xxx xxx

In the case of Bangayan vs Bangayan Jr., the Supreme Court

upheld the decision of the Court of Appeals which applied the general
rules on void or inexistent contracts under Article 1409 of the Civil Code,
that contracts which are absolutely simulated or fictitious are inexistent
and void from the beginning. The high court sustained that the lower
court’s ruling that the marriage between the petitioner and respondent of

9
CARIÑO vs. CARIÑO, G.R. No. 132529. February 2, 2001

10
CIVIL CODE, ART. 1409

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this case was null and void ab initio and non-existent for lack of marriage
license and for simulation of the marriage contract.11

Thus, it can be concluded in light of the above-mentioned rules and

jurisprudence, that the marriage between Lando and Beru is void ab initio for
they were not able to comply with the essential and formal requisites for a
valid marriage. We can also consider that the marriage was void or inexistent
for the simulation of the marriage contract in accordance with Article 1409 of
the Family Code.

The third issue that shall be discussed is whether Beru can be held liable
for Bigamy. Article 349 of the Revised Penal Code defines and penalizes
Bigamy which 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 judgement rendered in the
proper proceedings. 12

Furthermore, the case of Mercado v Tan provides the elements for

Bigamy to be committed which are:

“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.”13

From the above-cited article and jurisprudence, Beru cannot be held

liable for Bigamy because the first essential requisite is absent in this case
which provides that the offender must have been legally married. Beru is not

11
BANGAYAN VS BANGAYAN JR. GR NO. 201061
12
REVISED PENAL CODE, ART. 349
13
MERCADO VS TAN GR NO. 137110

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legally married with Lando since the previous marriage she contracted with
her former boyfriend has no legal effect for they had failed to comply with the
essential and formal requisites of a valid marriage.

Thus, in the eyes of the law, Beru is not legally married prior to her
marriage with Owen, as such she had not legal impediment and was acting
within her rights and under the bounds of law when she conducted a
subsequent marriage with Owen. Henceforth, Beru cannot be held liable for
Bigamy.

COUNTERARGUMENTS

Beru shall be held liable for bigamy because it is not up to the party to
decide whether or not the marriage is valid. Judicial declaration of nullity is
needed before a married person can remarry. As Article 40 of the Family Code
provides:

“The absolute nullity of a previous marriage may be invoked for

purposes of remarriage on the basis solely of a final judgement declaring such
previous marriage void.”14

Furthermore, the law prohibits the parties from assuming that their
marriage is void, even if it is true and undisputable, they must first seek
judicial aid and apply for a declaration of the nullity of their marriage before
they can be allowed to remarry. Failure of the observance of such shall make
them liable for Bigamy.

As ruled in Domingo vs CA:

“Came the Family Code which settled once and for all the conflicting
jurisprudence on the matter. A declaration of the absolute nullity of a
marriage is now explicitly required either as a cause of action or a ground
for defense. Where the absolute nullity of a previous marriage is sought to
be invoked for purposes of contracting a second marriage, the sole basis
acceptable in law for said projected marriage to be free from legal

14
FAMILY CODE, ART. 40

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 infirmity is a final judgment declaring the previous marriage void. The
Family Law Revision Committee and the Civil Code Committee which
drafted what is now the Family Code of the Philippines took the position
that parties to a marriage should not be allowed that their marriage is void
even if be the fact but must first secure a judicial declaration of the nullity
of their marriage before they can be allowed to marry again.”15

For the failure of Beru to file a court action for the judicial declaration
of nullity of her marriage, she is guilty for Bigamy when she conducted a
subsequent marriage with Owen even if she had a subsisting marriage with
Lando. Her disregard of the rule stated in Article 40 of the Family Code
cannot excuse her for liability, as the latin maxim says ignorantia legis non
excusat. 16

Lastly, Beru can be held liable for moral damages which Owen suffered
as a result of the mental distress, anguish and pain he suffered as a result
of their failed marriage. As Article 20 and 21 of the Family Code provides:

“Article 20 – Every person who, contrary to law, wilfully or negligently

causes damage to another, shall indemnify the latter for the same. 17

Article 21 – Any person who wilfully causes loss or injury to another in

a manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damages.”18

RESPONSE TO THE COUNTER ARGUMENTS

Beru cannot be held liable for Bigamy even if she failed to invoke
judicial aid to declare the nullity of her marriage with Lando. Beru was not
cognizant of the fact that Lando registered the simulated marriage contract,
she only knew about after the complaint of bigamy was filed.

15
DOMINGO VS CA GR NO. 104818
16
CIVIL CODE, ART. 3
17
CIVIL CODE, ART. 20
18
CIVIIL CODE, ART. 21

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 Penal laws are liberally construed in favour of the accused, as such
intent is necessary. Therefore, acts done in good faith may free any one from
liability. In the case at bar, Beru’s act of conducting a subsequent marriage
was made in good faith. Beru had no criminal intent to commit Bigamy. Her
act of connivance and failure of seeking judicial aid is an error of judgement
coupled with mistake of fact. Thus, she should not be held criminally liable
for Bigamy.

CONCLUSIONS/RECOMMENDATIONS

Our defense holds, as provided by law and jurisprudence, Beru cannot

be held liable for Bigamy because her marriage with Lando was simulated and
failed to comply with the requisites provided by law. Furthermore, it is highly
recommended that we present the local civil registrar as our witness to testify
that the marriage contract is in fact invalid and it has no marriage license
number.

We also recommend to present Lando as our witness, so that he will

attest to the facts that they simulated their marriage contract and that their
marriage is not valid. His statement will be highly relevant to this case.

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