Void ab initio marriage may be raised as defense by the accused in bigamy

Void ab initio marriage may be raised as defense by the accused in bigamy

Dear PAO,

I married Adela sometime in 1998 without getting a marriage license. We separated after two months because of irreconcilable differences. Believing that my first marriage was void, I married Adora in 2008. Adela discovered my second marriage and threatened me that if I did not turn over to her the possession of the house, which we bought sometime in 1999, she would file a complaint for bigamy against me. I told her that our marriage was void because we contracted the same without the required license. She just laughed and claimed that I could not raise the invalidity of such a marriage because I was liable for bigamy the moment I contracted my second marriage. Allegedly, someone advised her that a court order is necessary before I can contract a subsequent marriage. Am I precluded from raising the invalidity of my marriage with Adela if she files a case for bigamy against me and Adora?

Adolf

Dear Adolf,

Bigamy is a crime punishable under Article 349 of the Revised Penal Code of the Philippines, as amended:

"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."

Whereas, the requirement for a judicial order declaring the marriage void before contracting a subsequent marriage is governed by Article 40 of the Family Code of the Philippines:

"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 aforecited provisions of laws do not contradict each other. These provisions of law were elucidated in Pulido v. People of the Philippines, GR 220149, July 27, 2021, where the Supreme Court, speaking through Associate Justice Ramon Paul Hernando, stated:

"Accordingly, Article 349 of the RPC and Article 40 of the Family Code should be harmonized and liberally construed towards the protection of the sanctity of marriage and the presumption of innocence of the accused. With the retroactive effects of a void ab initio marriage, the marriage is considered non-existent from the time of the celebration of marriage. Therefore, to penalize and impose suffering on an individual on the basis of a non-existent marriage renders our penal laws sorely vindictive and resentful.

"All told, we hold that in criminal prosecutions for bigamy, the accused can validly interpose the defense of a void ab initio marriage even without obtaining a judicial declaration of absolute nullity. Consequently, a judicial declaration of absolute nullity of the first and/or subsequent marriages obtained by the accused in a separate proceeding, irrespective of the time within which they are secured, is a valid defense in the criminal prosecution for bigamy."

Applying the above-cited laws and jurisprudence, generally, the judicial declaration of absolute nullity of marriage is necessary before contracting a subsequent marriage. Otherwise, the subsequent marriage is void. However, if even the accused in a bigamy case contracted a subsequent marriage without obtaining a judicial declaration of nullity of his/her previous marriage, he/she is not precluded from raising as a defense that his/her first or second marriage is void ab initio. Remember that void marriages have a retroactive effect or are considered non-existent from the time of celebration. Thus, in the words of the Supreme Court, to penalize the accused in bigamy on the basis of a non-existent marriage will render our penal laws vindictive and resentful.

In sum, you may raise as a defense in the bigamy case to be filed by Adela that your marriage to her is void for lack of a marriage license — a formal requisite of marriage, the absence of which renders the marriage void.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated on.

Editor's note: Dear PAO is a daily column of the Public Attorney's Office. Questions for Chief Acosta may be sent to [email protected]

  • https://www.msn.com/en-ph/news/other/void-ab-initio-marriage-may-be-raised-as-defense-by-the-accused-in-bigamy/ar-BB1nUgha?ocid=00000000

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