LAW OFFICE MEMORANDUM

AND
CLIENT-OPINION LETTER

PRESENTED TO THE

DEPARTMENT OF LAW
SCHOOL OF LAW AND GOVERNANCE
UNIVERSITY OF SAN CARLOS
CEBU CITY, PHILIPPINES

IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS OF THE COURSE
LLB 136N: LEGAL WRITING

SUBMITTED BY

LOUIS ADRIANO Z. BAGUIO

LLB – 1
APRIL 16, 2019
 Louis-Adriano-Baguio Law Firm
605 Cardinal Rosales Avenue
Cebu City
Telefax: 696969

Ms. Beru
605 Cardinal Rosales Avenue
Cebu City

Re: Complaint of Mr. Owen against spouse Ms. Beru

I am writing on behalf of Louis-Adriano-Baguio Law Firm. This letter will advise you
on your possible defenses against the bigamy complaint charged against you by Mr.
Owen.

The facts we know are as written below. Please let us know if there is anything we miss.

Ms. Beru and Mr Owen got married on 2012. Mr. Owen filed a complaint for bigamy
against Ms. Beru in 2018 alleging that the latter contracted a prior marriage in 2010 with
a man named Lando. Ms. Beru, however, denied the allegation against her, but
admitted that she was a party to a simulated marriage in 2010 with Mr. Lando. Ms.
Beru’s reason for having been a party such simulated marriage was to discourage Ms.
Corde, whom Mr. Lando impregnated, from pursuing Mr. Lando. Ms. Beru further
stated that there was no marriage ceremony celebrated nor did they live together as
husband and wife after having signed the said simulated marriage contract. Ms. Beru
discovered that Mr. Lando registered their simulated marriage contract without her
knowledge nor consent only after the bigamy complaint was filed.

ISSUES

1. Whether Mr. Owen, being the second spouse of Ms. Beru, can file a case of
bigamy against the latter.
2. Whether Ms. Beru is guilty of bigamy for having contracted a subsequent
marriage without having her prior marriage judicially declared null and void.

BRIEF ANSWER

1. Yes, Mr. Owen has a legal standing to file a complaint against Ms. Beru for her
subsequent marriage.
2. No, Ms. Beru cannot be held liable for bigamy on the grounds of failure to
judicially declare her previous marriage null and void.

RULE AND APPLICATION

1. Notwithstanding the fact that Mr. Owen is the second husband of Ms. Beru, Mr.
Owen has a right to file a complaint of bigamy against Ms. Berus. Such rights
were settled by the Supreme Court in the cases of Garcia vs Court of Appeals,
266 SCRA 678, and People vs Capili, 700 SCRA 443, where the second spouse
were allowed to file a criminal complaint for bigamy against the person they
married who turned out to be already married to someone else.

2. Based on the given facts, I am of the opinion that Ms. Beru is not criminally liable
of a bigamous marriage. Although she has failed to do what is required of her
under Article 40 of the Family Code, her prior marriage does not constitute a
bigamous marriage under Article 349 of the RPC.

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.” Therefore when a marriage is
void, a party to that marriage can contract a subsequent marriage only after the
previous marriage has been judicially declared null and void. Article 349 of the
Revised Penal Code states that “[t]he 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 x x x.” The elements of bigamy are:
the offender has been legally married; the marriage has not been legally
dissolved; the offender contracts a subsequent marriage; and that the subsequent
marriage has all the essential requisites of a valid marriage.

Based on the facts of this case, the prior marriage of Ms. Beru with Mr. Lando is
Void Ab Initio, as if there was no marriage at all, because of the failure of the
parties to celebrate a marriage ceremony and the absence of her consent, which
are both essential requisites of a valid marriage. Therefore, her subsequent
marriage with Mr. Owen does not constitute a bigamous marriage for it lacks the
first element of bigamy, which is that the prior marriage must be legal.

In the case of Vincent Paul Mercado vs Consuelo Tan, G.R. No. 137110, and
Nicdao Carino vs. Carino, G.R. No. 132529, the Supreme Court ruled that a
person who contracts a subsequent marriage without having his first marriage
judicially declared void is guilty of bigamy. However, in the case of Ganchero vs
Judge Bellosillo, G.R. L-23640, the Supreme Court stated that bigamy is a
contracting of a second or subsequent marriage before the former marriage has
been legally dissolved. Therefore, it is evident that in order for a subsequent
 marriage to be bigamous, there should be a valid prior marriage. Applying the
cited cases, the criminal case for bigamy filed against Ms. Beru is of no avail.

Therefore, I am of the considered opinion that Ms. Beru cannot be held

For further concerns, you can contact me at 0915 540 4155, Louis-Adriano-Baguio Law
Firm.

Sincerely,

______________________________
Atty. Louis Adriano Z. Baguio
Junior Associate
 OFFICE MEMORANDUM OF LAW

To: Harvey Specter, Attorney

From: Louis Adriano Z. Baguio, Paralegal

Date: April 16, 2019

Case: People of the Philippines v. Beru

Office File No.: G.R. no. 696969

Docket No.: G.R. no. 14105031

Re: Bigamous subsequent marriage

Statement of Assignment

You have asked me to prepare a memorandum of law addressing the question whether
the prior marriage of Ms. Beru (our client) with Mr. Lando which was simulated in 2010
in relation to her subsequent marriage with Mr. Owen is a bigamous marriage, and
therefore, she should be criminally liable for such.

Issue

Whether Ms. Beru is guilty of bigamy for having contracted a subsequent marriage
without having her prior marriage judicially declared null and void under Article 349 of
the Revised Penal Code of the Philippines.

Brief Answer

No, Ms. Beru cannot be held liable for bigamy on the grounds of failure to judicially
declare her previous marriage null and void because her prior marriage does not satisfy
the first element of bigamy which is a legal marriage.

Statement of Facts

Ms. Beru and Mr Owen got married on 2012. Mr. Owen filed a complaint for bigamy
against Ms. Beru in 2018 alleging that the latter contracted a prior marriage in 2010 with
a man named Lando. Ms. Beru, however, denied the allegation against her, but
admitted that she was a party to a simulated marriage in 2010 with Mr. Lando. Ms.
Beru’s reason for having been a party such simulated marriage was to discourage Ms.
Corde, whom Mr. Lando impregnated, from pursuing Mr. Lando. Ms. Beru further
stated that there was no marriage ceremony celebrated nor did they live together as
husband and wife after having signed the said simulated marriage contract. Ms. Beru
discovered that Mr. Lando registered their simulated marriage contract without her
knowledge nor consent only after the bigamy complaint was filed.

Analysis

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.” Therefore when a marriage is void, a party to
that marriage can contract a subsequent marriage only after the previous marriage has
been judicially declared null and void. Article 349 of the Revised Penal Code states that
“[t]he 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 x
x x.” The elements of bigamy are: the offender has been legally married; the marriage
has not been legally dissolved; the offender contracts a subsequent marriage; and that
the subsequent marriage has all the essential requisites of a valid marriage.

Based on the facts of this case, the prior marriage of Ms. Beru with Mr. Lando is Void
Ab Initio, as if there was no marriage at all, because of the failure of the parties to
celebrate a marriage ceremony and the absence of her consent, which are both essential
requisites of a valid marriage. Therefore, her subsequent marriage with Mr. Owen does
not constitute a bigamous marriage for it lacks the first element of bigamy, which is that
the prior marriage must be legal.

In the case of Vincent Paul Mercado vs Consuelo Tan, G.R. No. 137110, and Nicdao
Carino vs. Carino, G.R. No. 132529, the Supreme Court ruled that a person who
contracts a subsequent marriage without having his first marriage judicially declared
void is guilty of bigamy. However, in the case of Ganchero vs Judge Bellosillo, G.R. L-
23640, the Supreme Court stated that bigamy is a contracting of a second or subsequent
marriage before the former marriage has been legally dissolved. Therefore, it is evident
that in order for a subsequent marriage to be bigamous, there should be a valid prior
marriage. Applying the cited cases, the criminal case for bigamy filed against Ms. Beru
is of no avail

Conclusion

The rule of law governing bigamous marriage is Article 349 of the Revised Penal Code
of the Philippines. It provides that persons who contract to subsequent prior marriage
without having the former marriage legally dissolved are guilty of bigamy. In our case,
because the prior marriage of Ms. Beru with Mr. Lando was Void Ab Initio, it was as if
there was no marriage at all, bigamy does not apply because it lacks the element of a
valid prior marriage.
 Recommendation

Therefore, I am of the considered opinion that Ms. Beru cannot be held criminally liable
of bigamy for we have a strong defense against the prosecution.