9/13/24, 10:09 PM G.R. No. 137110 | Mercado v.

Tan

THIRD DIVISION

[G.R. No. 137110. August 1, 2000.]

VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner, vs. CONSUELO

TAN, respondent.

Tan Acut & Madrid for petitioner.

Julius C. Baldeo for respondent.

SYNOPSIS

On April 10, 1976, petitioner Dr. Vincent Paul G. Mercado contracted his first 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 first marriage having been legally dissolved. On
October 5, 1992, herein respondent filed a complaint for bigamy against the petitioner before the City
Prosecutor's Office in Bacolod City which eventually resulted in the filing 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
affirmed 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 first marriage. In fact, he instituted the Petition to have the first marriage declared
void only after complainant had filed a letter-complaint charging him with bigamy. By contracting a second
marriage while the first 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 first 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 file 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

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1. CRIMINAL LAW; BIGAMY; ELEMENTS. — The elements of this crime are as follows: "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."

2. CIVIL LAW; FAMILY CODE; MARRIAGE; JUDICIAL DECLARATION OF NULLITY OF

PREVIOUS MARRIAGE IS NECESSARY BEFORE A SECOND MARRIAGE CAN BE CONTRACTED. —
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: "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
marriage void." . . . 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 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).". . . 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.
3. ID.; ID.; ID.; ID.; CONSISTENT WITH THE PRONOUNCEMENT IN TERRE VS. TERRE. —
The present ruling is consistent with our pronouncement in Terre v. Terre, which involved an administrative
Complaint against a lawyer for marrying twice. In injecting the lawyer's argument that he was free to enter
into a second marriage because the first 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
first 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." Significantly, it observed that the second marriage,
contracted without a judicial declaration that the first marriage was void, was "bigamous and criminal in
character."

4. CRIMINAL LAW; BIGAMY; THAT THE FIRST MARRIAGE IS VOID FROM THE BEGINNING
IS NOT A VALID DEFENSE WITHOUT A JUDICIAL DECLARATION.— 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 first obtain a judicial declaration of the
nullity of a void marriage before contracting a subsequent marriage: "It is now settled that the fact that the
first 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 be allowed to assume that their marriage is void, even if such is the fact, but must first secure a
judicial declaration of nullity of their marriage before they should be allowed to marry again. . . . ."

5. ID.; ID.; ID.; APPLIED IN CASE AT BAR. — In the instant case, petitioner contracted a
second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he
instituted the Petition to have the first marriage declared void only after complainant had filed a letter-
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complaint charging him with bigamy. By contracting a second marriage while the first was still subsisting, he
committed that acts punishable under Article 349 of the Revised Penal Code.
6. ID.; ID.; ID.; JUDICIAL DECLARATION OF NULLITY OF FIRST MARRIAGE DURING
PENDENCY OF BIGAMY CASE IS IMMATERIAL. — That he subsequently obtained a judicial declaration of
the nullity of the first 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 file 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.
7. REMEDIAL LAW; APPEAL; APPELLEE COULD NOT OBTAIN AFFIRMATIVE RELIEF FROM
THE APPELLATE COURT; CASE AT BAR. — [R]espondent 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. Her prayer has no merit.
She did not appeal the ruling of the CA against her; hence, she cannot obtain affirmative relief from this
Court.

8. CIVIL LAW; DAMAGES; CANNOT BE CLAIMED BY AN OFFENDED PARTY IN A BIGAMY

CASE IF SHE WAS FULLY CONSCIOUS OF THE CONSEQUENCES OF HER ACT. — In any event, we
find 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. . . . "Indeed, the claim of Consuelo Tan that she was not aware of
his previous marriage does not inspire belief, especially as she had seen that Dr. Mercado had two (2)
children with him. We are convinced that she took the plunge anyway, relying on the fact that the first wife
would no longer return to Dr. Mercado, she being by then already living with another man. "Consuelo Tan
can therefore not claim damages in this case where she was fully conscious of the consequences of her act.
She should have known that she would suffer humiliation in the event the truth [would] come out, as it did in
this case, ironically because of her personal instigation. If there are indeed damages caused to her
reputation, they are of her own willful making."

VITUG, J., concurring and dissenting opinion:

1. CIVIL LAW; FAMILY CODE; MARRIAGE; FOR PURPOSES OF REMARRIAGE, NO

JUDICIAL DECLARATION OF NULLITY SHALL BE DEEMED ESSENTIAL WHEN THE PREVIOUS
MARRIAGE IS BETWEEN PERSONS OF SAME SEX OR WHEN EITHER OR BOTH PARTIES HAD NOT
GIVEN CONSENT THERETO. — Article 40 of the Family Code reads: "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." The phrase "for purposes of remarriage" is not at all insignificant.
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

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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.
2. CRIMINAL LAW; BIGAMY; "FORMER MARRIAGE" CONTEMPLATES AN EXISTING, NOT
VOID, PRIOR MARRIAGE. — In fine, 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: "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.
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. TcIHDa

3. ID.; ID.; ID.; HAD JUDICIAL DECLARATION OF NULLITY OF AB INITIO VOID MARRIAGE
BEEN WITHIN THE CONTEMPLATION OF THE LEGISLATURE, AN EXPRESS PROVISION TO THAT
EFFECT SHOULD HAVE BEEN INSERTED IN THE LAW. — As early as People vs. Aragon, 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 is bigamy if the second marriage were contracted prior
to the decree of 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.

DECISION

PANGANIBAN, J : p

A judicial declaration of nullity of a previous marriage is necessary before a subsequent one can be
legally contracted. One who enters into a subsequent marriage without first obtaining such judicial
declaration is guilty of bigamy. This principle applies even if the earlier union is characterized by statute as
"void."

The Case

Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision of the Court of
Appeals (CA) [1] in CA-GR CR No. 19830 and its January 4, 1999 Resolution denying reconsideration. The
assailed Decision affirmed the ruling of the Regional Trial Court (RTC) of Bacolod City in Criminal Case No.
13848, which convicted herein petitioner of bigamy as follows:

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"WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr.
Vincent G. Mercado of the crime of Bigamy punishable under Article 349 of the Revised Penal
Code to have been proven beyond reasonable doubt, [the court hereby renders] judgment
imposing upon him a prison term of three (3) years, four (4) months and fifteen (15) days of
prision correccional, as minimum of his indeterminate sentence, to eight (8) years and twenty-
one (21) days of prision mayor, as maximum, plus accessory penalties provided by law.
Cost against accused." [2]

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 Certificate 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 confirmed in a church
ceremony on June 29, 1991 officiated by Msgr. Victorino A. Rivas, Judicial Vicar, Diocese of
Bacolod City. Both marriages were consummated when out of the first 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 filed 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 Office, accused filed 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 first 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 first
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

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second or subsequent marriage; and (4) that the second or subsequent marriage ha[d] all the
essential requisites for validity. . . .
"While acknowledging the existence of the two marriage[s], accused posited the
defense that his previous marriage ha[d] been judicially declared null and void and that the
private complainant had knowledge of the first marriage of accused.

"It is an admitted fact that when the second marriage was entered into with Ma.
Consuelo Tan on June 27, 1991, accused's prior marriage with Ma. Thelma V. Oliva was
subsisting, no judicial action having yet been initiated or any judicial declaration obtained as
to the nullity of such prior marriage with Ma. Thelma V. Oliva. Since no declaration of the
nullity of his first marriage ha[d] yet been made at the time of his second marriage, it is clear
that accused was a married man when he contracted such second marriage with complainant
on June 27, 1991. He was still at the time validly married to his first wife." [3]

Ruling of the Court of Appeals

Agreeing with the lower court, the Court of Appeals stated:

"Under Article 40 of the Family Code, '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.' But here, the final judgment declaring null and void accused's
previous marriage came not before the celebration of the second marriage, but after, when
the case for bigamy against accused was already tried in court. And what constitutes the
crime of bigamy is the act of any person who shall, contract a second subsequent marriage
'before' the former marriage has been legally dissolved." [4]

Hence, this Petition. [5]

The Issues
In his Memorandum, petitioner raises the following issues:

"A

Whether or not the element of previous legal marriage is present in order to convict
petitioner.

"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

Whether or not petitioner is entitled to an acquittal on the basis of reasonable doubt."

[6]

The Court's Ruling

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The Petition is not meritorious.

Main Issue:
Effect of Nullity of Previous Marriage

Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code, which provides:

"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."

The elements of this crime are as follows:

"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." [7]

When the Information was filed 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 first 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 first marriage to speak of. Petitioner also
quotes the commentaries [9] of former Justice Luis Reyes that "it is now settled that if the first marriage is
void from the beginning, it is a defense in a bigamy charge. But if the first marriage is voidable, it is not a
defense."

Respondent, on the other hand, admits that the first 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 filed. 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 "conflicting." [10] In People vs. Mendoza, [11] 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 first. When the first 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 first 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
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third time. This ruling was affirmed by the Court in People vs. Aragon, [12] 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, [13] Jose Consuegra married for the second time while the first marriage was still
subsisting. Upon his death, the Court awarded one half of the proceeds of his retirement benefits to the first
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 first marriage was
still subsisting, still there is need for judicial declaration of such nullity."

In Tolentino v. Paras, [14] 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 Certificate, his second wife was
named as his surviving spouse. The first wife then filed a Petition to correct the said entry in the Death
Certificate. The Court ruled in favor of the first wife, holding that "the second marriage that he contracted
with private respondent during the lifetime of the first 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, [15] the Court stressed the need for such declaration. In that case, Karl
Heinz Wiegel filed 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 first 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 first 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, [16] 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, [17] 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 affirmative,
the Court declared: "The Family Code has 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; 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 first marriage, the person who marries again
cannot be charged with bigamy." [18]

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:
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"Illegal marriages. — Any marriage subsequently contracted by any person during the
lifetime of the first spouse shall be illegal and void from its performance, unless:

(a) The first marriage was annulled or dissolved;

(b) The first 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 subsequent marriage
contracted by any person during the lifetime of his first spouse illegal and void from its performance, and no
judicial decree is necessary to establish its invalidity, as distinguished from mere annullable marriages." [19]

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 final judgment declaring such marriage void."

In view of this provision, Domingo stressed that a final judgment declaring such marriage void was
necessary. Verily, the Family Code and Domingo affirm 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)." [20]

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, [21] 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 first 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
first 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." Significantly, it observed that the second marriage,
contracted without a judicial declaration that the first marriage was void, was "bigamous and criminal in
character."

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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 first obtain a judicial declaration of the nullity of a void marriage before contracting a subsequent
marriage: [22]

"It is now settled that the fact that the first 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 first
secure a 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 first marriage. In fact, he instituted the Petition to have the first marriage declared
void only after complainant had filed a letter-complaint charging him with bigamy. By contracting a second
marriage while the first 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 first 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 file 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. [23]

Her prayer has no merit. She did not appeal the ruling of the CA against her; hence, she cannot
obtain affirmative relief from this Court. [24] In any event, we find 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.

xxx xxx xxx

Indeed, the claim of Consuelo Tan that she was not aware of his previous marriage
does not inspire belief, especially as she had seen that Dr. Mercado had two (2) children with
him. We are convinced that she took the plunge anyway, relying on the fact that the first wife
would no longer return to Dr. Mercado, she being by then already living with another man.

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Consuelo Tan can therefore not claim damages in this case where she was fully
conscious of the consequences of her act. She should have known that she would suffer
humiliation in the event the truth [would] come out, as it did in this case, ironically because of
her personal instigation. If there are indeed damages caused to her reputation, they are of
her own willful making." [25]

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

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 final judgment declaring such previous
marriage void."

The phrase "for purposes of remarriage" is not at all insignificant. 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 fine, 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:
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"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 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

1. Penned by J. Salome A. Montoya, Division chairman; with the concurrence of JJ. Conchita Carpio
Morales and Bernardo P. Abesamis, members.

2. RTC Decision, pp. 16-17; rollo, pp. 136-137. This was written by Judge Edgar G. Garvilles.

3. CA Decision, pp. 2-4; rollo, pp. 45-47.

4. Ibid., p. 6; rollo, p. 13.

5. The case was deemed submitted for resolution on May 26, 2000, upon receipt by this Court of the
OSG Memorandum signed by Sol. Gen. Ricardo P. Galvez, Asst. Sol. Gen. Mariano M. Martinez and
Sol. Jesus P. Castelo. Respondent's Memorandum, which was signed by Atty. Julius C. Baldado, was
received on November 11, 1999; while petitioner's Memorandum, signed by Attys. Bernard B. Lopez
and Maritoni Z. Liwanag, had been filed earlier on September 30, 1999.

6. Petitioner's Memorandum, p. 5; rollo, p. 215.

7. Reyes, The Revised Penal Code, Book Two, 13th ed. (1993), p. 828.

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.
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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.

16. 145 SCRA 229, October 28, 1986.

17. 226 SCRA 572, September 17, 1993, per Romero, J., citing Sempio-Diy, Handbook of the Family
Code of the Philippines, 1988, p. 46.

18. Supra, p. 579.

19. People v. Mendoza, 95 Phil. 845, 847, September 28, 1954, per Paras, C.J. See also People v.
Aragon, 100 Phil. 1033, 1034-1035, February 28, 1957, per Labrador, J.

20. Sempio-Diy, Handbook on the Family Code of the Philippines, 1995 ed., p. 56.

21. 211 SCRA 6, 11, July 3, 1992, per curiam.

22. Reyes, Revised Penal Code, Book Two, 13th ed. (1993), p. 829. Italics supplied. Petitioner had cited
the statement of Justice Reyes that "if the first marriage is void from the beginning, it is a defense in a
bigamy charge." This statement, however, appeared in the 1981 edition of Reyes' book, before the
enactment of the Family Code.

23. Respondent's Memorandum, p. 16; rollo, p. 259.

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.

VITUG, J., concurring and dissenting:

1. 100 Phil. 1033.

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