A.K.A. A.K.A. Petitioner Vs Vs Respondent Tan Acut & Madrid Julius C. Baldeo
A.K.A. A.K.A. Petitioner Vs Vs Respondent Tan Acut & Madrid Julius C. Baldeo
A.K.A. A.K.A. Petitioner Vs Vs Respondent Tan Acut & Madrid Julius C. Baldeo
SYNOPSIS
On April 10, 1976, petitioner Dr. Vincent Paul G. Mercado contracted his rst
marriage with Ma. Thelma G. Oliva in Cebu City. On June 27, 1991, the petitioner
contracted his second marriage with herein respondent Ma. Consuela Tan in Bacolod City
without his rst marriage having been legally dissolved. On October 5, 1992, herein
respondent filed a complaint for bigamy against the petitioner before the City Prosecutor's
O ce in Bacolod City which eventually resulted in the ling of an information on March 1,
1993, before the Regional Trial Court, Branch 22 of Cebu City. On the other hand, on
November 13, 1992, the petitioner instituted an action for Declaration of Nullity of
Marriage against Ma. Thelma V. Oliva before the Regional Trial Court, Branch 22, Cebu City.
In a Decision dated May 6, 1993, the marriage between petitioner and Thelma Oliva was
declared null and void. After trial of the bigamy case, the Regional Trial Court of Bacolod
City convicted the petitioner of the crime charged. On appeal, the Court of Appeals
a rmed the decision of the trial court. In this petition, the petitioner questioned the
presence of previous legal marriage as element of the crime of bigamy. EcIaTA
The Court ruled that petitioner contracted a second marriage although there was yet
no judicial declaration of nullity of his rst marriage. In fact, he instituted the Petition to
have the rst marriage declared void only after complainant had led a letter-complaint
charging him with bigamy. By contracting a second marriage while the rst was still
subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.
That he subsequently obtained a judicial declaration of the nullity of the rst marriage was
immaterial. The crime had already been consummated by then. Moreover, his view
effectively encourages delay in the prosecution of bigamy cases; an accused could simply
le a petition to declare his previous marriage void and invoke the pendency of that action
as a prejudicial question in the criminal case. This cannot be allowed. Under the
circumstances of the present case, petitioner is guilty of the charge against him.
Petition was DENIED.
SYLLABUS
DECISION
PANGANIBAN , J : p
The Facts
The facts are quoted by Court of Appeals (CA) from the trial court's judgment, as
follows:
"From the evidence adduced by the parties, there is no dispute that
accused Dr. Vincent Mercado and complainant Ma. Consuelo Tan got married on
June 27, 1991 before MTCC-Bacolod City Br. 7 Judge Gorgonio J. Ibañez [by
reason of] which a Marriage Contract was duly executed and signed by the
parties, As entered in said document, the status of accused was 'single.' There is
no dispute either that at the time of the celebration of the wedding with
complainant, accused was actually a married man, having been in lawful wedlock
with Ma. Thelma Oliva in a marriage ceremony solemnized on April 10, 1976 by
Judge Leonardo B. Cañares, CFI-Br. XIV, Cebu City per Marriage Certi cate issued
in connection therewith, which matrimony was further blessed by Rev. Father
Arthur Baur on October 10, 1976 in religious rites at the Sacred Heart Church,
Cebu City. In the same manner, the civil marriage between accused and
complainant was con rmed in a church ceremony on June 29, 1991 o ciated by
Msgr. Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages
were consummated when out of the rst consortium, Ma. Thelma Oliva bore
accused two children, while a child, Vincent Paul, Jr. was sired by accused with
complainant Ma. Consuelo Tan.
"On October 5, 1992, a letter-complaint for bigamy was led by
complainant through counsel with the City Prosecutor of Bacolod City, which
eventually resulted [in] the institution of the present case before this Court against
said accused, Dr. Vincent G. Mercado, on March 1, 1993 in an Information dated
January 22, 1993.
"On November 13, 1992, or more than a month after the bigamy case was
lodged in the Prosecutor's O ce, accused led an action for Declaration of
Nullity of Marriage against Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City, and in a
Decision dated May 6, 1993 the marriage between Vincent G. Mercado and Ma.
Thelma V. Oliva was declared null and void.
"Accused is charged with bigamy under Article 349 of the Revised Penal
Code for having contracted a second marriage with herein complainant Ma.
Consuelo Tan on June 27, 1991 when at that time he was previously united in
lawful marriage with Ma. Thelma V. Oliva on April 10, 1976 at Cebu City, without
said rst marriage having been legally dissolved. As shown by the evidence and
admitted by accused, all the essential elements of the crime are present, namely:
(1) that the offender has been previously legally married; (2) that the rst
marriage has not been legally dissolved or in case the spouse is absent, the
absent spouse could not yet be presumed dead according to the Civil Code; (3)
that he contract[ed] a second or subsequent marriage; and (4) that the second or
subsequent marriage ha[d] all the essential requisites for validity. . . .
"B
Whether or not a liberal interpretation in favor of petitioner of Article 349 of
the Revised Penal Code punishing bigamy, in relation to Articles 36 and 40 of the
Family Code, negates the guilt of petitioner.
"C
When the Information was led on January 22, 1993, all the elements of bigamy
were present. It is undisputed that petitioner married Thelma G. Oliva on April 10, 1976 in
Cebu City. While that marriage was still subsisting, he contracted a second marriage, this
time with Respondent Ma. Consuelo Tan who subsequently filed the Complaint for bigamy.
Petitioner contends, however, that he obtained a judicial declaration of nullity of his
rst marriage under Article 36 of the Family Code, thereby rendering it void ab initio. Unlike
voidable marriages which are considered valid until set aside by a competent court, he
argues that a void marriage is deemed never to have taken place at all. 8 Thus, he
concludes that there is no rst marriage to speak of. Petitioner also quotes the
commentaries 9 of former Justice Luis Reyes that "it is now settled that if the rst
marriage is void from the beginning, it is a defense in a bigamy charge. But if the rst
marriage is voidable, it is not a defense."
Respondent, on the other hand, admits that the rst marriage was declared null and
void under Article 36 of the Family Code, but she points out that that declaration came only
after the Information had been led. Hence, by then, the crime had already been
consummated. She argues that a judicial declaration of nullity of a void previous marriage
must be obtained before a person can marry for a subsequent time.
We agree with the respondent.
To be sure, jurisprudence regarding the need for a judicial declaration of nullity of
the previous marriage has been characterized as "con icting." 1 0 In People vs. Mendoza, 1 1
a bigamy case involving an accused who married three times, the Court ruled that there
was no need for such declaration. In that case, the accused contracted a second marriage
during the subsistence of the rst. When the rst wife died, he married for the third time.
The second wife then charged him with bigamy. Acquitting him, the Court held that the
second marriage was void ab initio because it had been contracted while the rst marriage
was still in effect. Since the second marriage was obviously void and illegal, the Court ruled
that there was no need for a judicial declaration of its nullity. Hence, the accused did not
commit bigamy when he married for the third time. This ruling was a rmed by the Court in
People vs. Aragon, 1 2 which involved substantially the same facts.
But in subsequent cases, the Court impressed the need for a judicial declaration of
nullity. In Vda. de Consuegra v. GSIS , 1 3 Jose Consuegra married for the second time while
the rst marriage was still subsisting. Upon his death, the Court awarded one half of the
proceeds of his retirement bene ts to the rst wife and the other half to the second wife
and her children, notwithstanding the manifest nullity of the second marriage. It held: "And
with respect to the right of the second wife, this Court observes that although the second
marriage can be presumed to be void ab initio as it was celebrated while the rst marriage
was still subsisting, still there is need for judicial declaration of such nullity."
I n Tolentino v. Paras , 1 4 however, the Court again held that judicial declaration of
nullity of a void marriage was not necessary. In that case, a man married twice. In his Death
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Certi cate, his second wife was named as his surviving spouse. The rst wife then led a
Petition to correct the said entry in the Death Certi cate. The Court ruled in favor of the
rst wife, holding that "the second marriage that he contracted with private respondent
during the lifetime of the rst spouse is null and void from the beginning and of no force
and effect. No judicial decree is necessary to establish the invalidity of a void marriage."
In Wiegel v. Sempio-Diy, 1 5 the Court stressed the need for such declaration. In that
case, Karl Heinz Wiegel led an action for the declaration of nullity of his marriage to Lilia
Olivia Wiegel on the ground that the latter had a prior existing marriage. After pretrial, Lilia
asked that she be allowed to present evidence to prove, among others, that her rst
husband had previously been married to another woman. In holding that there was no need
for such evidence, the Court ruled: ". . . There is likewise no need of introducing evidence
about the existing prior marriage of her rst husband at the time they married each other,
for then such a marriage though void still needs, according to this Court, a judicial
declaration of such fact and for all legal intents and purposes she would still be regarded
as a married woman at the time she contracted her marriage with respondent Karl Heinz
Wiegel; . . . ."
Subsequently, in Yap v. CA, 1 6 the Court reverted to the ruling in People v. Mendoza ,
holding that there was no need for such declaration of nullity.
In Domingo v. CA, 1 7 the issue raised was whether a judicial declaration of nullity was
still necessary for the recovery and the separation of properties of erstwhile spouses.
Ruling in the a rmative, the Court declared: "The Family Code has settled once and for all
the con icting 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; in
fact, the requirement for a declaration of absolute nullity of a marriage is also for the
protection of the spouse who, believing that his or her marriage is illegal and void, marries
again. With the judicial declaration of the nullity of his or her rst marriage, the person who
marries again cannot be charged with bigamy." 1 8
Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was
not a criminal prosecution for bigamy. Nonetheless, Domingo underscored the need for a
judicial declaration of nullity of a void marriage on the basis of a new provision of the
Family Code, which came into effect several years after the promulgation of Mendoza and
Aragon.
In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage
Law), which provided:
"Illegal marriages. — Any marriage subsequently contracted by any person
during the lifetime of the rst spouse shall be illegal and void from its
performance, unless:
(a) The first marriage was annulled or dissolved;
(b) The rst spouse had been absent for seven consecutive years at the time
of the second marriage without the spouse present having news of the
absentee being alive, or the absentee being generally considered as dead
and believed to be so by the spouse present at the time of contracting such
subsequent marriage, the marriage as contracted being valid in either case
until declared null and void by a competent court."
The Court held in those two cases that the said provision "plainly makes a
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subsequent marriage contracted by any person during the lifetime of his rst spouse
illegal and void from its performance, and no judicial decree is necessary to establish its
invalidity, as distinguished from mere annullable marriages." 1 9
The provision appeared in substantially the same form under Article 83 of the 1950
Civil Code and Article 41 of the Family Code. However, Article 40 of the Family Code, a new
provision, expressly requires a judicial declaration of nullity of the previous marriage, as
follows:
"ARTICLE 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a nal judgment
declaring such marriage void."
In view of this provision, Domingo stressed that a nal judgment declaring such
marriage void was necessary. Verily, the Family Code and Domingo a rm the earlier ruling
in Wiegel. Thus, a Civil Law authority and member of the Civil Code Revision Committee has
observed:
"[Article 40] is also in line with the recent decisions of the Supreme Court
that the marriage of a person may be null and void but there is need of a judicial
declaration of such fact before that person can marry again; otherwise, the
second marriage will also be void (Wiegel v. Sempio-Diy , Aug. 19/86, 143 SCRA
499; Vda. De Consuegra v. GSIS , 37 SCRA 315). This provision changes the old
rule that where a marriage is illegal and void from its performance, no judicial
decree is necessary to establish its validity (People v. Mendoza, 95 Phil. 843;
People v. Aragon, 100 Phil. 1033)." 2 0
In this light, the statutory mooring of the ruling in Mendoza and Aragon — that there
is no need for a judicial declaration of nullity of a void marriage — has been cast aside by
Article 40 of the Family Code. Such declaration is now necessary before one can contract a
second marriage. Absent that declaration, we hold that one may be charged with and
convicted of bigamy.
The present ruling is consistent with our pronouncement in Terre v. Terre, 2 1 which
involved an administrative Complaint against a lawyer for marrying twice. In rejecting the
lawyer's argument that he was free to enter into a second marriage because the rst one
was void ab initio, the Court ruled: "for purposes of determining whether a person is legally
free to contract a second marriage, a judicial declaration that the rst marriage was null
and void ab initio is essential." The Court further noted that the said rule was "cast into
statutory form by Article 40 of the Family Code." Signi cantly, it observed that the second
marriage, contracted without a judicial declaration that the rst marriage was void, was
"bigamous and criminal in character."
Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited
by petitioner, changed his view on the subject in view of Article 40 of the Family Code and
wrote in 1993 that a person must rst obtain a judicial declaration of the nullity of a void
marriage before contracting a subsequent marriage: 2 2
"It is now settled that the fact that the rst marriage is void from the
beginning is not a defense in a bigamy charge. As with a voidable marriage, there
must be a judicial declaration of the nullity of a marriage before contracting the
second marriage. Article 40 of the Family Code states that . . . . The Code
Commission believes that the parties to a marriage should not be allowed to
assume that their marriage is void, even if such is the fact, but must rst secure a
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judicial declaration of nullity of their marriage before they should be allowed to
marry again. . . . ."
In the instant case, petitioner contracted a second marriage although there was yet
no judicial declaration of nullity of his rst marriage. In fact, he instituted the Petition to
have the rst marriage declared void only after complainant had led a letter-complaint
charging him with bigamy. By contracting a second marriage while the rst was still
subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.
That he subsequently obtained a judicial declaration of the nullity of the rst
marriage was immaterial. To repeat, the crime had already been consummated by then.
Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an
accused could simply le a petition to declare his previous marriage void and invoke the
pendency of that action as a prejudicial question in the criminal case. We cannot allow that.
Under the circumstances of the present case, he is guilty of the charge against him.
Damages
In her Memorandum, respondent prays that the Court set aside the ruling of the
Court of Appeals insofar as it denied her claim of damages and attorney's fees. 2 3
Her prayer has no merit. She did not appeal the ruling of the CA against her; hence,
she cannot obtain a rmative relief from this Court. 2 4 In any event, we nd no reason to
reverse or set aside the pertinent ruling of the CA on this point, which we quote hereunder:
"We are convinced from the totality of the evidence presented in this case
that Consuelo Tan is not the innocent victim that she claims to be; she was well
aware of the existence of the previous marriage when she contracted matrimony
with Dr. Mercado. The testimonies of the defense witnesses prove this, and we
find no reason to doubt said testimonies.
WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs
against petitioner.
SO ORDERED.
Melo, Purisima and Gonzaga-Reyes, JJ.,concur.
Vitug, J., see concurring and dissenting opinion.
Separate Opinions
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VITUG , J., concurring and dissenting :
At the pith of the controversy is the defense of the absolute nullity of a previous
marriage in an indictment for bigamy. The majority opinion, penned by my esteemed
brother, Mr. Justice Artemio V. Panganiban, enunciates that it is only a judicially decreed
prior void marriage which can constitute a defense against the criminal charge.
The civil law rule stated in Article 40 of the Family Code is a given but I have strong
reservations on its application beyond what appears to be its expressed context. The
subject of the instant petition is a criminal prosecution, not a civil case, and the ponencia
affirms the conviction of petitioner Vincent Paul G. Mercado for bigamy.
Article 40 of the Family Code reads:
"ARTICLE 40. The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis solely of a nal judgment
declaring such previous marriage void."
The phrase "for purposes of remarriage" is not at all insigni cant. Void marriages,
like void contracts, are inexistent from the very beginning. It is only by way of exception
that the Family Code requires a judicial declaration of nullity of the previous marriage
before a subsequent marriage is contracted; without such declaration, the validity and the
full legal consequence of the subsequent marriage would itself be in similar jeopardy
under Article 53, in relation to Article 52, of the Family Code. Parenthetically, I would
daresay that the necessity of a judicial declaration of nullity of a void marriage for the
purpose of remarriage should be held to refer merely to cases where it can be said that a
marriage, at least ostensibly, had taken place. No such judicial declaration of nullity, in my
view, should still be deemed essential when the "marriage," for instance, is between
persons of the same sex or when either or both parties had not at all given consent to the
marriage." Indeed, it is likely that Article 40 of the Family Code has been meant and
intended to refer only to marriages declared void under the provisions of Articles 35, 36,
37, 38 and 53 thereof.
In ne, the Family Code, I respectfully submit, did not have the effect of overturning
the rule in criminal law and related jurisprudence. The Revised Penal Code expresses:
"ARTICLE 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.
Surely, the foregoing provision contemplated an existing, not void, prior marriage. Covered
by Article 349 would thus be, for instance, a voidable marriage, it obviously being valid and
subsisting until set aside by a competent court. As early as People vs. Aragon, 1 this Court
has underscored:
". . . Our Revised Penal Code is of recent enactment and had the rule
enunciated in Spain and in America requiring judicial declaration of nullity of ab
initio void marriages been within the contemplation of the legislature, an express
provision to that effect would or should have been inserted in the law. In its
absence, we are bound by said rule of strict interpretation."
Unlike a voidable marriage which legally exists until judicially annulled (and therefore
not a defense in bigamy if the second marriage were contracted prior to the decree of
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annulment), the complete nullity, however, of a previously contracted marriage, being a
total nullity and inexistent, should be capable of being independently raised by way of a
defense in a criminal case for bigamy. I see no incongruence between this rule in criminal
law and that of the Family Code, and each may be applied within the respective spheres of
governance.
Accordingly, I vote to grant the petition.
Footnotes
2. RTC Decision, pp. 16-17; rollo, pp. 136-137. This was written by Judge Edgar G. Garvilles.
8. Citing Tolentino, Civil Code of the Philippines: Commentaries and Jurisprudence, Vol. I, p.
265.
9. Reyes, The Revised Penal Code, Book Two, 12th ed. (1981), p. 907.
10. Domingo v. CA, 226 SCRA 572, September 17, 1993, per Romero, J.
11. 95 Phil. 845, September 28, 1954.
12. 100 Phil. 1033, February 28, 1957.
13. 37 SCRA 315, 326, January 30, 1971, per Zaldivar, J. Italics supplied. See also Gomez v.
Lipana, 33 SCRA 615, June 30, 1970.
14. 122 SCRA 525, 529, May 30, 1983; per Melencio-Herrera, J. Italics supplied.
15. 143 SCRA 499, August 19, 1986, per Paras, J. Italics supplied.
24. Lagandaon v. Court of Appeals, 290 SCRA 330, May 21, 1998; Dio v. Concepcion, 296
SCRA 579, September 25, 1998.
25. CA Decision, pp. 7-9; rollo, pp. 50-52.