UNIVERSITY OF SAN CARLOS

SCHOOL OF LAW AND GOVERNANCE

COLLEGE OF LAW

LEGAL RESEARCH MIDTERM ACTIVITY

Submitted by:

PACHO, MARIA ISEDRA S.

WEE, CHESKA MAE L.
OXINIO, EVAN RYDEL G.
RUNDINAS, KARL VINCENT L.

EH-309

Submitted to:

ATTY. ALYWARD CONSULTA

18 October 2019

Ms. Anne Curtis

Cebu City, 6000
Philippines

Dear Ms. Curtis:

This legal opinion seeks to answer your question as to the validity of your
husband’s marriage to Rachel Zane and whether or not your husband can be
prosecuted for bigamy.

The Facts:

Per our discussion, the following are the pertinent facts of your case:
You married Adam in Cebu City, Philippines. In pursuit of greener pastures,
your husband went to New York to work in a law firm as an Associate Lawyer for 3
years. You found out that within those 3 years, your husband became romantically
involved with Rachel Zane, an American national working as a paralegal in the same
firm as your husband and that later, the two got married in Maldives and celebrated
their honeymoon in Cebu City.

Query:
1) Is your husband’s marriage to Rachel Zane valid?
2) Can your husband be prosecuted for bigamy?

Legal Opinion:

Adam’s marriage to Rachel is not valid. Irrespective of this fact, Adam cannot be
prosecuted for bigamy. The applicable laws to your case are as follows:

Article 26 Paragraph 1 of the Family Code:

“All marriages solemnized outside the Philippines, in accordance with the
laws in force in the country where they are solemnized, and valid there as such, shall
also be valid in this country, except those prohibited under Articles 35(1), (4), (5) and
(6), 36, 37, and 38.”1

Adam’s marriage to Rachel is not valid, it being a marriage not recognized in the
country where it was solemnized and at the same time, it being a bigamous marriage
not falling under Article 41. Marriages between foreign nationals are not included in the
marriages stated in the Family Law Act (2000) of Maldives.
 Even assuming that the marriage of your husband with Rachel is valid in
Maldives where it was solemnized, such marriage is still not valid and is in fact void
under Article 26(1) as it is a marriage that is bigamous not falling under Article 41.2

Article 15 of the Civil Code:

“Laws relating to family rights and duties, or to the status, condition and legal
capacity of persons are binding upon citizens of the Philippines, even though living
abroad”.3

Article 15 of the Civil Code would apply to prove that your husband’s marriage
to Rachel is bigamous as it states that the laws relating to family relations are binding
upon citizens of the Philippines even though living outside of the Philippines.
As bigamy under Philippine laws exists when a person contracts a subsequent
marriage while a previous marriage is subsisting, your husband’s subsequent marriage
to Rachel is likewise bigamous because he is governed by the Philippine laws even
though he is living abroad as he is a Filipino citizen and is married to you under our
laws.

Article 2 of the Revised Penal Code:

“Application of its provisions. — Except as provided in the treaties and laws of

preferential application, the provisions of this Code shall be enforced not only
within the Philippine Archipelago, including its atmosphere, its interior waters and
maritime zone, but also outside of its jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or airship;
2. Should forge or counterfeit any coin or currency note of the Philippine Islands or
obligations and securities issued by the Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into these islands of the
obligations and securities mentioned in the presiding number;
4. While being public officers or employees, should commit an offense in the exercise
of their functions; or
5. Should commit any of the crimes against national security and the law of nations,
defined in Title One of Book Two of this Code.”4

Although your husband’s marriage is recognized under Philippine laws as a

bigamous marriage, Adam cannot be prosecuted for bigamy in the Philippines under
Article 2 of the Revised Penal Code. The foregoing article provides that the provisions
of the RPC shall only be enforced within the Philippine territory and can only be given
extra-territorial application against those persons who commit the offenses specified
therein.
 The bigamous marriage contracted by your husband abroad does not fall under
the exceptions to the extra-territorial application of the RPC under Article 2, hence, you
cannot have him prosecuted for bigamy.

Recommendation:

Since you cannot have your husband be prosecuted for bigamy, there are other
charges you can charge him with. However, these would demand from you a great
amount of effort to prove should you decide to continue to have him be prosecuted.
As bigamy is not tenable, you can have Adam be prosecuted for concubinage
under Article 334 of the Revised Penal Code or for psychological violence caused by his
marital infidelity.

Art. 334 of the Revised Penal Code:

“Concubinage.—any husband who shall keep a mistress in the conjugal

dwelling, or shall have sexual intercourse, under scandalous circumstances, with a
woman who is not his wife, or shall cohabit with her in any other place, shall be
punished by prision correccional in its minimum and medium periods.

The concubine shall suffer the penalty of destierro.”5

Seeing from the facts of your case that your husband and Rachel have gone to the
Philippines to celebrate their honeymoon, and if after their honeymoon, they continue to
live as husband and wife in the Philippines, you can validly file a criminal complaint for
concubinage as their illegal relationship is committed within national limits.

The law considers marriage as an inviolable social institution. As such, its

integrity is greatly protected by the law. Thus, the act of your husband in transgressing
the integrity and sanctity of your marriage by cohabiting with another woman and
begetting a subsequent marriage is punishable under the law.

The case of United States v. Casipong6 would be applicable to your case to charge
Adam with concubinage on the ground of cohabitation. In the foregoing case, it ruled
that:

“The unlawful union of a married man with a woman not his wife, when the
two live within a town and in the same house as lawful husband and wife, go
together through the streets of the town, frequent places where large crowds gather,
and commit acts in plain sight of the community without caution and with
effrontery, is a procedure that gives rise to criticism and general protest among the
neighbors and by its bad example offends the conscience and feelings of every moral
person; and when these conditions attend the conduct of a married persons it is
indubitable that his concubinage with another woman, even though she does not live
in his home, carries with it the circumstance of scandal required by the law to make
his action criminal."

However, if it would be difficult for you to prove Adam and Rachel’s

cohabitation for the crime of concubinage, you can charge him with psychological
violence caused by his marital infidelity under RA 9262 or “The Anti-Violence Against
Women Act of 2004” as this is relatively easier to prove than concubinage.

Sec. 3 of R.A. No. 9262:

“(a) ‘Violence against women and their children’ refers to any act or a series of
acts committed by any person against a woman who is his wife, former wife, or
against a woman with whom the person has or had a sexual or dating relationship, or
with whom he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is likely to result
in physical, sexual, psychological harm or suffering, or economic abuse including
threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of
liberty. It includes, but is not limited to, the following acts:

C. "Psychological violence" refers to acts or omissions causing or likely to cause

mental or emotional suffering of the victim such as but not limited to intimidation,
harassment, stalking, damage to property, public ridicule or humiliation, repeated
verbal abuse and mental infidelity. It includes causing or allowing the victim to
witness the physical, sexual or psychological abuse of a member of the family to
which the victim belongs, or to witness pornography in any form or to witness
abusive injury to pets or to unlawful or unwanted deprivation of the right to custody
and/or visitation of common children.”7

In Dinamling v. People8, the Supreme Court enumerated the elements of

psychological violence under section 5(i) of R.A. No. 9262, as follows:

(1) The offended party is a woman and/or her child or children;

(2) The woman is either the wife or former wife of the offender, or is a woman
with whom the offender has or had a sexual or dating relationship, or is a
woman with whom such offender has a common child. As for the woman's
child or children, they may be legitimate or illegitimate, or living within or
without the family abode;
(3) The offender causes on the woman and/or child mental or emotional
anguish; and
(4) The anguish is caused through acts of public ridicule or humiliation,
repeated verbal and emotional abuse, denial of financial support or custody of
minor children or access to the children or similar such acts or omissions.
 Psychological violence is an element of violation of Section 5(i) just like the
mental or emotional anguish caused on the victim. Psychological violence is the means
employed by the perpetrator, while mental or emotional anguish is the effect caused to
or the damage sustained by the offended party.

To establish psychological violence as an element of the crime, it is necessary to

show proof of commission of any of the acts enumerated in Section 5(i) or similar such
acts. And to establish mental or emotional anguish, it is necessary to present the
testimony of the victim as such experiences are personal to this party.9

Regardless of whether Adam is abroad or in the Philippines, he would still be

chargeable R.A. No. 9262 for psychological violence would still apply provided that
you, the victim, are a resident of where you will file the complaint.

The case of AAA v. BBB ruled this in the following manner:

“It is necessary, for Philippine courts to have jurisdiction when the abusive
conduct or act of violence under Section 5(i) of R.A. No. 9262 in relation to Section 3(a),
Paragraph (C) was committed outside Philippine territory, that the victim be a resident
of the place where the complaint is filed in view of the anguish suffered being a
material element of the offense.“10
Thus, for you to be able to charge your husband under R.A. No. 9262, you should
file your complaint with the court which holds jurisdiction over your place of residence
and you must be able to show that you are suffering from any of the aforementioned
effects in the elements.
I am grateful for the opportunity to advise you regarding this matter. Please let
me know if you wish to discuss these issues further at your convenience. Thank you!

Sincerely yours,

LEGAL COUNSEL

Footnotes
1Family Code of the Philippines, Article 26, Paragraph 1.

2Family Code of the Philippines, Article 35, Paragraph 4.

3Civil Code of the Philippines, Article 15.

4 Revised Penal Code, Article 2.

5Revised Penal Code, Article 334.

6 United States v. Casipong, G.R. No. 6608, 05 September, 1911.

7AN ACT DEFINING VIOLENCE AGAINST WOMEN AND THEIR CHILDREN,
PROVIDING FOR PROTECTIVE MEASURES FOR VICTIMS, PRESCRIBING PENAL
TIES THEREFORE, AND FOR OTHER PURPOSES. Approved on March 8, 2004.
8761 Phil. 356 (2015).

9-10 AAA v. BBB, G.R. No. 212448, 11 January 2018.