A valid defense against bigamy

What a person must do before getting married again is to get a decree from a court that indeed his existing marriage is void

Bigamy is committed by “any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved...” (Article 349, Revised Penal Code) Under our criminal law, the guilt of the accused is proven through its elements.

To obtain a conviction for bigamy, the prosecution must prove that the accused i. is legally married, ii. such marriage has not been legally dissolved and iii. despite such, the accused contracts another marriage with someone else.

In the fairly recent case of Luisito G. Pulido versus People of the Philippines (G.R. 220149, promulgated 27 July 2021), accused was charged with bigamy. He contracted marriage in 1983. Despite its subsistence, he entered into marriage with a different person in 1995. In 2007, his wife in the previous marriage filed a case of bigamy against him and his second wife. His defense was that his first marriage was void for lack of a marriage license and the second marriage void too for want of a ceremony. He, however, at that time (but later did) did not file any action to declare his marriage null and void; much less obtain any judicial decree declaring it as such. The trial court found him guilty. Aggrieved, he sought refuge in the Court of Appeals.

Said court affirmed the conviction and even lengthened the imprisonment. Undaunted, he pleaded his case in the last bastion of justice — the Supreme Court.

Before discussing the Supreme Court’s pronouncement, the prevailing rule is that the mere allegation of nullity of marriage, without any judicial confirmation, is not a valid defense in bigamy. Determination by oneself that his marriage is void would be taking the law into his own hands. What a person must do before getting married again is to get a decree from a court that indeed his existing marriage is void. Article 40 of the Family Code states that “[t]he 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.” This negates the element that there is an existing and valid marriage. Take note that once a marriage is declared null, it is as if no marriage ever took place.

Or if the accused charged with bigamy files a case for declaration of nullity of marriage, a prejudicial question arises. A prejudicial question is an issue tried by another court, the resolution of which will determine the guilt or innocence of the accused in the crime charged. Thus, if a marriage is declared void by the court, the accused will not be accountable for bigamy for it entails two marriages, one after the other. With a prejudicial issue, the criminal action for bigamy is suspended until the resolution of the petition for declaration of nullity.

The Supreme Court, however, had this to say in Luisito Pulido’s case. “To summarize and for future guidance, the parties are not required to obtain a

judicial declaration of absolute nullity of a void ab initio first and subsequent marriages in order to raise it as a defense in a bigamy case.

The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to begin with.

The same rule now applies to all marriages celebrated under the Civil Code and the Family Code. Article 40 of the Family Code did not amend Article 349 of the Revised Penal Code (RPC), and thus, did not deny the accused the right to collaterally attack the validity of a void ab initio marriage in the criminal prosecution for bigamy... To our mind, it is time to abandon the earlier precedents and adopt a more liberal view that a void ab initio marriage can be used as a defense in bigamy without a separate judicial determination of absolute nullity... Therefore, the absence of a prior valid marriage..., Pulido is hereby acquitted from the crime of bigamy...”

“The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to begin with. Thus, an accused in a bigamy case should be allowed to raise the defense of a prior void ab initio marriage through competent evidence other than the judicial declaration of nullity... Apropos, with the retroactive effects of a void ab initio marriage, there is nothing to annul nor dissolve as the judicial declaration of nullity merely confirms the inexistence of such marriage. Thus, the second element of bigamy, i.e., that the former marriage has not been legally dissolved or annulled, is wanting in case of a void ab initio prior marriage. What Article 349 of the RPC contemplates is contracting a subsequent marriage when a voidable or valid marriage is still subsisting... In the same manner, when the accused contracts a second or subsequent marriage that is void ab initio, other than it being bigamous, he/she cannot be held liable for bigamy as the effect of a void marriage signifies that the accused has not entered into a second or subsequent marriage, being inexistent from the beginning.”

Hmmm. We do learn something new everyday.

The facts and quoted ruling are from the case cited above.