Jayford O.

Powao LLB-1
Legal Writing

To: Ana Quinn, Associate Attorney

From: Pal Patin, Supervising Attorney

Date: March 8, 2016

Re: Beru v. Owen – Bigamy Case; Defenses in Bigamy

You have tasked me to prepare a legal memorandum concerning the

case of our client Miss Beru who is charged with Bigamy. I have presented
here the key facts, issues, our possible defense, applicable jurisprudence
and laws that can be our basis to defend our client, including possible
counterarguments from the opposing and our answer to that counter
arguments.

KEY FACTS

Our client, Beru got married in 2002 with her husband Owen. Owen
filed a complaint for bigamy against Beru in 2012. Owen claimed that Beru
had contracted a prior marriage in 1992 with a man named Lando. Beru
denied her husband’s allegations. She admitted, however, that she was a
party in a simulated marriage that took place in 1998 with her first
boyfriend Lando. The reason was that Lando at that time impregnated
another woman named Corde, and in order to discourage Corde from
pursuing him, Lando convinced Beru to sign a simulated marriage contract
for the purpose of only showing Corde that he was married already. Beru
said that she and Lando did not even live together as husband and wife
after the simulated marriage. It was only after the bigamy complaint was

1
filed in court when Beru discovered that Lando in fact registered the
simulated marriage contract without her knowledge much less consent.

ISSUES

1.) Whether the question of the validity of the marriage between Beru and
Lando should be resolved first before the criminal proceeding can proceed

2.) Whether Beru and Lando’s act of signing a simulated marriage contract
consisted of a valid marriage

3). Whether Beru can be held liable for Bigamy for conducting a subsequent
marriage with Owen when she had a previous subsisting marriage with
Lando

BRIEF ANSWERS

1). Yes, the validity of Beru’s marriage with Lando shall be resolved first as
it constitutes a prejudicial question to the criminal case of bigamy filed
against her by her husband Owen since it is determinative whether or not
the criminal case shall prosper.

2.) No, because the essential and formal requisites for a valid marriage was
not complied. Although there is a marriage contract, but a marriage
contract is not an essential nor a formal requisite for a valid marriage.

3.) No, Beru cannot be held guilty for the crime of Bigamy because her first
marriage with Lando was not valid, hence one of the essential requisites for
the crime of Bigamy to be committed is not present.

DISCUSSIONS/ANALYSIS

The first issue to be resolved in this case is whether or not the issue
of the validity of the marriage between Beru and Lando should be resolved
first before the prosecution for the crime of Bigamy can proceed. In short,

2
the issue on the validity serves as a prejudicial question to the crime of
Bigamy indicted against Beru. As enunciated in Article 36 of the Civil Code:

“Prejudicial questions, which must be decided before any criminal prosecution

may be instituted, or may proceed, shall be governed by our rules of court which the
Supreme Court shall promulgate and which shall not be in conflict with the provisions of
this Code.”

In the same manner, the Supreme Court held in a case wherein the
accused claimed that his first marriage was null and void and the right to
decide that question is vested in another tribunal, the civil action for nullity
must be decided first before the action for bigamy can proceed. As the
high court said in the case of People v Adelo Aragon:

“Prejudicial question has been defined to be that which arises in a case, the
resolution of which (question) is a logical antecedent of the issue involved in said case,
and the cognizance of which pertains to another tribunal. The prejudicial question must
be determinative of the case before the court; this is its first element. Jurisdiction to try
said question must be lodged in another tribunal; this is the second element.

In an action for bigamy, for example, if the accused claims that the first marriage is null
1
and void and the right to decide such validity is vested in another tribunal, the civil
action for nullity must first be decided before the action for bigamy can proceed; hence,
the validity of the first marriage is a prejudicial question.”

As supplemented by Section 7 of Rule 11 of the Rules of Court, the

elements of a prejudicial question are:

“(a) the previously instituted civil action involves an issue similar or intimately
related to the issue said in the subsequent criminal action, and

(b)the resolution of such issue determines whether or not the criminal action
may proceed.”

Thus, Beru shall institute a civil case to resolve the validity of her first
marriage with her former boyfriend Lando. As such, this action shall bar the
criminal action from proceeding as it constitutes a prejudicial question to
the crime of Bigamy charged against Beru.

1
CIVIL CODE, ART. 36
PP VS. ADELO ARAGON, GR NO. 5930
RULES OF COURT, SECTION 7

3
 The second issue to be resolved in this case is whether the simulation
of a marriage contract between Lando and Beru resulted to the celebration
of a valid marriage. It is of primary importance to revisit the essential and
formal requisites of a valid marriage. As stated in Article 2 and 3 of the
Family Code:
“No marriage shall be valid, unless these essential requisites are present:

(1) Legal capacity of the contracting parties who must be a male and a female; and
(2) Consent freely given in the presence of the solemnizing officer.

The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in cases provided for Chapter 2 of this Title;
and
(3) A marriage ceremony which takes place with the appearance of the
contracting parties before the solemnizing officer and their personal
declaration that they take each other as husband and wife in the presence of
not less than two witnesses of legal age.

Furthermore, the absence of any of the essential or formal requisites

shall render the marriage invalid. It is expressedly laid down in Article 4 of
the Family Code, which provides:

“The absence of any of the essential or formal requisites shall render the
marriage void ab initio, except as stated in Article 35(2) 2

A defect in any of the essential requisites shall render the marriage voidable as
provided in Article 45.”

In the case at bar, it is undeniable that Lando and Beru agreed to sign
a simulated marriage contract for the purpose of showing Corde whom
Lando impregnated tha Lando is already married. But this does prove that
the marriage was valid, as shown above, marriage contract is not an
essential nor a formal requisite for a valid marriage. Assuming in argument
that the act of signing the marriage contract was an act purporting that
they declare each other as husband and wife and that they both consent,

2
FAMILY CODE, ART. 2
FAMILY CODE, ART. 3
FAMILY CODE, ART. 4
CARINO VS. CARINO, GR NO. 132529

4
but this was not done during a marriage ceremony in front of a solemnizing
officer. The signing was done privately among the parties.

The absence of such negates the existence of the essential and

formal requisites namely: the consent freely given in the presence of a
solemnizing officer, authority of the solemnizing officer, a marriage
ceremony where the parties appear before the solemnizing officer
personally declaring that they take each other as husband and wife in the
presence of two witnesses.

Furthermore, it has not been shown that they procured a marriage,

and obviously their situation does not fall upon the exemptions provided by
law where a marriage license is not required.

Thus, the marriage between Lando and Beru is void ab initio in

accordance with Article 4, since they failed to obtain the essential and
formal requisites provided by law.

As held by the Supreme Court in the case of Cariño v. Cariño the

court declared that the marriage between the parties was void ab initio for
the failure of the parties to secure a valid marriage license even if there was
a marriage contract. The court ruled that:

“Under the Civil Code, which was the law in force when the marriage of petitioner Susan
Nicdao and the deceased was solemnized in 1969, a valid marriage license is a requisite
of marriage,  and the absence thereof, subject to certain exceptions, renders the
marriage void ab initio. 

In the case at bar, there is no question that the marriage of petitioner and the deceased
does not fall within the marriages exempt from the license requirement. A marriage
license, therefore, was indispensable to the validity of their marriage. This
notwithstanding, the records reveal that the marriage contract of petitioner and the
deceased bears no marriage license number and, as certified by the Local Civil Registrar
of San Juan, Metro Manila, their office has no record of such marriage license.”

Furthermore, marriage is a contract governed by law and the law

states that contracts which are simulated are void or inexistent, particularly
Article 1409 of the Civil Code enumerates contracts which are void or
inexistent, the said article states that:

5
 “Art. 1409. The following contracts are inexistent and void from the
beginning:

xxx xxx xxx

(2) Those which are absolutely simulated or fictitious; x x x x x x x x x

In the case of Bangayan vs Bangayan Jr., the Supreme Court

upheld the decision of the Court of Appeals which applied the general
rules on void or inexistent contracts under Article 1409 of the Civil
Code, that contracts which are absolutely simulated or fictitious are
inexistent and void from the beginning. The high court sustained that
the lower court’s ruling that the marriage between the petitioner and
respondent of this case was null and void ab initio and non-existent for
lack of marriage license and for simulation of the marriage contract. 3

Thus, it can be concluded in light of the above mentioned rules and

jurisprudence, that the marriage between Lando and Beru is void ab initio
for they were not able to comply with the essential and formal requisites
for a valid marriage. We can also consider that the marriage was void or
inexistent for the simulation of the marriage contract in accordance with
Article 1409 of the Family Code.

The third issue that shall be discussed is whether Beru can be held
liable for Bigamy. Article 349 of the Revised Penal Code defines and
penalizes Bigamy which states that 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
judgement rendered in the proper proceedings.

Furthermore, the case of Mercado v Tan provides the elements for

Bigamy to be committed which are:
3
CARINO VS. CARINO, GR NO. 132529
CIVIL CODE, ART. 1409
BANGAYAN VS BANGAYAN JR. GR NO. 201061
REVISED PENAL CODE, ART. 349
MERCADO VS TAN 137110

6
 “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.”

From the above-cited article and jurisprudence, Beru cannot be held

liable for Bigamy because the first essential requisite is absent in this case
which provides that the offender must have been legally married. Beru is
not legally married, as argued above, her previous marriage with Lando has
no legal effect because they have failed to comply with the essential and
formal requisites of a valid marriage.

Thus, in the eyes of the law, Beru is not legally married prior to her
marriage with Owen, as such she had not legal impediment and was acting
within her rights and under the bounds of law when she conducted a
subsequent marriage with Owen. Henceforth, Beru cannot be held liable
for Bigamy.

COUNTERARGUMENTS

Beru shall be held liable for bigamy because it is not up to the party
to decide whether or not the marriage is valid. Judicial declaration of nullity
is needed before a married person can remarry. As Article 40 of the Family
Code provides:

“The absolute nullity of a previous marriage may be invoked for purposes of

remarriage on the basis solely of a final judgement declaring such previous marriage
void.”

Furthermore, the law prohibits the parties from assuming that their
marriage is void, even if it is true and undisputable, they must first seek
judicial aid and apply for a declaration of the nullity of their marriage
before they can be allowed to remarry. Failure of the observance of such
shall make them liable for Bigamy. As ruled in Domingo vs CA:

7
 “Came the Family Code which 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. Where
the absolute nullity of a previous marriage is sought to be invoked for
purposes of contracting a second marriage, the sole basis acceptable in law for said
projected marriage to be free from legal infirmity is a final judgment declaring the
previous marriage void. The Family Law Revision Committee and the Civil Code
Committee which drafted what is now the Family Code of the Philippines took the
position that parties to a marriage should not be allowed that their marriage is void
even if be the fact but must first secure a judicial declaration of the nullity of their
marriage before they can be allowed to marry again.”4

For the failure of Beru to file a court action for the judicial declaration
of nullity of her marriage, she is guilty for Bigamy when she conducted a
subsequent marriage with Owen even if she had a subsisting marriage
with Lando. Her disregard of the rule stated in Article 40 of the Family
Code cannot excuse her for liability, as the latin maxim says ignorantia
legis non excusat.

Lastly, Beru can be held liable for moral damages which Owen
suffered as a result of the mental distress, anguish and pain he suffered
as a result of their failed marriage. As Article 20 and 21 of the Family
Code provides:

“Article 20 – Every person who, contrary to law, wilfully or negligently causes

damage to another, shall indemnify the latter for the same.

Article 21 – Any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the latter for
the damages.”

RESPONSE TO THE COUNTER ARGUMENTS

Beru cannot be held liable for Bigamy even if she failed to invoke
judicial aid to declare the nullity of her marriage with Lando. Beru was not
cognizant of the fact that Lando registered the simulated marriage
contract, she only knew about after the complaint of bigamy was filed.

4
DOMINGO VS CA GR NO. 104818
CIVIL CODE, ART. 20
CIVIIL CODE, ART. 21
FAMILY CODE, ART. 40

8
 Penal laws are liberally construed in favour of the accused, as such
intent is necessary. Therefore, acts done in good faith may free any one
from liability. In the case at bar, Beru’s act of conducting a subsequent
marriage was made in good faith. Beru had no criminal intent to commit
Bigamy. Her act of connivance and failure of seeking judicial aid is an error
of judgement coupled with mistake of fact. Thus, she should not be held
criminally liable for Bigamy.

CONCLUSIONS/RECOMMENDATIONS

Our defense holds water, as provided by law and jurisprudence, Beru

cannot be held liable for Bigamy because her marriage with Lando was
simulated and failed to comply with the requisites provided by law.
Furthermore, it is highly recommended that we present the local civil
registrar as our witness to testify that the marriage contract is in fact in
valid and has no marriage license number.

We also recommend to present Lando as our witness so that he will

attest to the facts that they simulated their marriage contract and that their
marriage is not valid. His statement will be highly relevant to this case.

9
10