Post-bigamy declaration of nullity of marriage

MB Campanilla·Friday, May 26, 2017

After the consummation of the crime of bigamy, declaration of nullity of first marriage and/or
second marriage is not a defense on the following grounds:
First ground - After the consummation of bigamy, subsequent declaration of nullity of the first
and/or the second marriage is not a defense since it is not listed as a mode of extinguishing
criminal liability listed in Article 89 (Jarillo vs. People, GR No. 164435, September 29, 2009).
Bigamy is consummated upon contracting second marriage despite the subsistence of the first
marriage consummates. Once the crime consummates, criminal liability will attach to the
accused and will not be extinguished except through a mode mentioned in Article 89 of RPC as
death, pardon etc. After the consummation of bigamy or celebration of the second marriage, the
criminal liability shall not be extinguished by subsequent events such as declaration of nullity of
marriage not mentioned in Article 89 of RPC.
Second ground - To make declaration off nullity of first marriage and/or second marriage after
the consummation of the crime of bigamy as a defense would render the State’s penal laws on
bigamy completely nugatory, and allow individuals to deliberately ensure that each marital
contract be flawed in some manner, and to thus escape liability for bigamy (Tenebro vs. The
Honorable Court of Appeals, G.R. No. 150758, February 18, 2004; Walter vs. People, GR No.
183805, July 03, 2013).
The accused cannot use the voidness of the second marriage as a defense in bigamy because she
fraudulently secured a certificate of marriage, and that is presenting a falsified affidavit of
cohabitation instead of marriage license (Santiago vs. People, G.R. No. 200233, July 15, 2015).
Third ground - To avoid criminal liability, the declaration of nullity of the first marriage must be
made previous to the consummation of bigamy, which is required by Article 40 of the Family
Code that provides: 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. A
declaration of the absolute nullity of the first marriage is now explicitly required either as a cause
of action or a ground for defense in bigamy (People vs. Teves, G.R. No. 188775, August 24,
2011). Even though the first marriage was contracted prior to the Family Code, the rule is the
same since Article 40, which is a rule of procedure, should be applied retroactively. The reason
is that as a general rule, no vested right may attach to, nor arise from, procedural laws (Jarillo vs.
People, G.R. No. 164435, June 29, 2010).
Article 40 of the Family Code is only applicable if what is involved is declaration of nullity of
the first marriage. Hence, if what is involved is post-bigamy declaration of nullity of the first
marriage, this is not a defense because of the first, second and third grounds. If what is involved
is post-bigamy declaration of nullity of the second marriage, this is not a defense because of the
first and second grounds.
Post-bigamy declaration of nullity of the first or second marriage is not a defense whether the
ground for nullity is psychological incapacity (Mercado vs. Tan, G.R. No. 137110, August 1,
2000) or lack of license and affidavit of cohabitation (Lasanas vs. People, G.R. No. 159031, June
23, 2014, Bersamin) or even though the declaration is obtained before the filing of the complaint
for bigamy (People vs. Odtuhan, GR No. 191566, July 17, 2013).
Exceptions:
1. The principle that “one who enters into a subsequent marriage without first obtaining such
judicial declaration is guilty of bigamy” is not applicable where the parties merely signed the
marriage contract without marriage ceremony performed by a duly authorized solemnizing
officer. The mere private act of signing a marriage contract bears no semblance to a valid
marriage and thus, needs no judicial declaration of nullity. Hence, bigamy is not committed
(Morigo vs. People, G.R. No. 145226, February 06, 2004).
2. X contracted three marriages. His first wife is already dead when X contracted his third
marriage.
X is liable for bigamy involving the second marriage on the basis of his first marriage because
the first was existing when the contracted the second.
X is not liable for bigamy involving the third marriage on the basis of the first marriage since the
first has already been extinguished by reason of death of the first wife when he contracted the
third.
X is not liable for bigamy involving the third marriage on the basis of the second marriage since
the second is null and void for being a bigamous marriage.
Other view: X is liable for bigamy involving the third marriage on the basis of the second
marriage. Although the second is null and void for being a bigamous marriage, X should have
first caused the declaration of nullity of the second marriage for being bigamous before
contracting a third marriage.
3. The second marriage was celebrated one day before the issuance of the marriage license.
Accused can use the voidness of the second marriage as a defense in bigamy. In this case,
accused did not cause the falsification of public documents in order to contract a second
marriage. He did not fraudulently secure a Certificate of Marriage, and later used this criminal
act as basis for seeking her exculpation. The crime committed is not bigamy under Article 349
(Santiago vs. People, supra; People v. De Lara, 3 No. 12583-R, 14 February 1955, 51 O.G. 4079)
but marriage contracted against the provisions of the law under Article 350 (People vs. Peralta,
CA-GR No. 13130-R, June 30, 1955).