Michelle May D.

Rama LLB1
Legal Writing

TO: Senior Partner

FROM: Michelle May D. Rama
DATE: April 15, 2019
RE: Beru v. Owen  Bigamy Case; Defenses in Bigamy

STATEMENT OF THE ASSIGNMENT

You have asked me to prepare a legal memorandum on the question of

whether the marriage between our client and Mr. Lando was invalid and
whether the invalidity of the first marriage would be a valid defense to
exonerate Ms. Beru from the charge of bigamy filed by Mr. Owen, her
husband in the subsequent marriage. Pursuant to your request, this memo
includes an analysis of the relevant facts, issues, our possible defense,
applicable jurisprudence and laws that may support our client’s acquittal,
including possible counterarguments from the opposing side and our response
to the counterarguments.

FACTS

Mr. Owen filed a complaint for Bigamy against our client on the
grounds that Ms. Beru was already married to Mr. Lando when she contracted
a subsequent marriage to Mr. Owen.

Mr. Owen and Ms. Beru have been married since 2012. On 2018, Mr.
Owen filed a complaint for Bigamy against Ms. Beru, alleging that she is
previously married with Mr. Lando in 2010 before she married Mr. Owen in
2012. Attached in his complaint was a copy of the marriage contract between
Ms. Beru and Mr. Lando.

Ms. Beru, the wife, admitted that she was a party to a simulated
marriage in 2010 with her first boyfriend, Mr. Lando. While being in that
relationship, Lando impregnated a woman named Corde. In order to
discourage Corde from pursuing him, Mr. Lando convinced Ms. Beru to sign
a marriage contract for the purpose of only showing to Corde that he was
married already. Ms. Beru said that a marriage ceremony did not take place,
and that she and Lando did not even live together as husband and wife after
they signed the simulated marriage contract. It was only after the Bigamy
complaint was filed in court when Ms. Beru discovered that Lando registered
the simulated marriage contract without her knowledge nor consent.

1
 ISSUES/ QUESTIONS PRESENTED

1. Whether, under our Family Code, Ms. Beru and Mr. Lando’s act of
signing a simulated marriage contract consisted of a valid marriage?

2. Whether, under our Revised Penal Code, Ms. Beru can be held liable
for Bigamy contracting a subsequent marriage with Mr. Owen in 2012
when she had a subsisting marriage with Mr. Lando in 2010?

BRIEF ANSWER

1. No. Under the Family Code, a marriage is only valid when the essential
and formal requisites are present. The marriage between Ms. Beru and
Mr. Lando was void because it lacks the following: consent freely given
in the presence of the solemnizing officer, authority of the solemnizing
officer, valid marriage license and marriage ceremony.

2. No. Under the Revised Penal Code, a person can only be held liable for
Bigamy when all the elements of the crime are present. Ms. Beru cannot
be held liable for Bigamy because she was not legally married to Mr.
Lando.

DISCUSSION/ ANALYSIS

Ms. Beru cannot be held liable for Bigamy under the Revised Penal
Code because her prior marriage to Mr.Lando was invalid. Under settled
jurisprudence, one of the elements of Bigamy is that then offender has been
legally married. However, the marriage between Ms. Beru and Mr. Lando
lacks the essential and formal requisites as laid down in the Family Code. This
section contains the key facts, issues and applicable laws and jurisprudence to
support the acquittal of our client.

The first issue to be resolved in this case is whether the simulation of a

marriage contract between Ms. Beru and Mr. Lando resulted to the celebration
of a valid marriage. Under the Family Code, a marriage is valid when the
essential and formal requisites are present. 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.1

1
FAMILY CODE, art. 2

2
 The formal requisites of marriage are:

(1) Authority of the solemnizing officer;

(2) A valid marriage license except in the cases provided
for in 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.”2

Furthermore, Article 4 of the Family Code 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).

A defect in any of the essential requisites shall render

the marriage voidable as provided in Article 45.”

An irregularity in the formal requisites shall not affect

the validity of the marriage but the party or parties
responsible for the irregularity shall be civilly, criminally
and administratively liable.”3

The law clearly provides that a valid marriage is composed of essential

and formal requisites. The absence of one requisite would render the marriage
void. In the case at bar, it is undisputed that Ms. Beru and Mr. Lando signed
a simulated marriage contract in 2010 for the purpose of discouraging Corde
from pursuing Mr. Lando, who was the boyfriend of Ms. Beru at that time.
However, a marriage contract alone cannot prove the existence of a valid
marriage because it is not one of the requisites expressly provided in the
Family code. Assuming arguendo that the signing of the marriage contract
was an act showing that consent was freely given and that they declare each
other as husband and wife, this cannot prosper because such declaration and
consent was not given before a solemnizing officer during the celebration of
a marriage ceremony.

The circumstances clearly 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 he parties appear before the solemnizing officer personally

2
FAMILY CODE, art. 3
3
FAMILY CODE, art. 4

3
declaring that they take each other as husband and wife in the presence of not
less than two witnesses of legal age.

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

license and their situation does not fall under the exemptions provided by law
where a marriage license is required. 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 failing to secure a valid marriage license despite
the presence of a marriage contract. The Court ruled that:

“The marriage of the petitioner and her deceased

husband as void ab initio as 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, their office has no record of such marriage
license. The court held that the certification issued by the
local civil registrar is adequate to prove the non-issuance of
the marriage license. Their marriage having been
solemnized without the necessary marriage license and not
being one of the marriages exempt from the marriage
license requirement, the marriage of the petitioner and the
deceased is undoubtedly void ab initio.”4

In addition, Article 1409 of the Civil Code also applies to marriage

contracts which mandates that contracts which are simulated or fictitious are
considered to be void or inexistent. This was also enunciated by the Supreme
Court in Go-Bangayan vs. Bangayan, Jr.:

“The marriage between Benjamin and Sally was also non-

existent. Applying the general rules on void or inexistent
contracts under Article 1409 of the Civil Code, contracts
which are absolutely simulated or fictitious are "inexistent
and void from the beginning."21 Thus, the Court of Appeals
did not err in sustaining the trial court’s ruling that the
marriage between Benjamin and Sally was null and void ab
initio and non-existent.”5
Therefore, the marriage between Ms. Beru and Mr. Lando is void ab
initio because it lacks the essential and formal requisites as provided in the
laws and jurisprudence mentioned above. The marriage between Ms. Beru and
Mr. Lando was made only in jest and a simulated marriage, at the instance of
Mr. Lando, intended to discourage Corde from pursuing him. Thus, it is an
inexistent contract pursuant to Article 1409 of the Civil Code.6

4
Cariño v. Cariño, G.R. NO. 132529, February 2, 2001.
5
Go-Bangayan v. Bangayan, Jr., G.R. NO. 201061, July 3, 2013.
6
CIVIL CODE, art. 1409

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 The last issue to be discussed is whether Ms. Beru can be held liable
for the crime of Bigamy for contracting a subsequent marriage with Mr. Owen
when she had a subsisting marriage with Mr. Lando. Article 349 of the
Revised Penal Code 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.”7
For an accused to be convicted of this crime, the prosecution must prove
all of the following elements as enumerated in Vitangcol vs. People of the
Philippines:

“[first,] that the offender has been legally married;

[second,] that the first 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;

[third,] that he contracts a second or subsequent marriage;

and

[lastly,] that the second or subsequent marriage has all the

essential requisites for validity.”8

From the above-cited provision and jurisprudence, Ms. Beru cannot be

held liable for Bigamy because the first requisite is absent which provides that
the offender has been legally married. The invalidity of the marriage between
Ms. Beru and Mr. Lando means that Ms. Beru was not legally married to Mr.
Lando when she contracted the marriage with Mr. Owen. As argued above,
her previous marriage with Mr. Lando has no legal effect because they failed
to comply with the essential and formal requisites of a valid marriage.

Hence, Ms. Beru was not legally married prior to her marriage with Mr.
Owen. The complaint for bigamy should not prosper because at the time she
married Mr. Owen, there was no legal impediment and she was merely
exercising her right in marrying Mr. Owen.

7
REVISED PENAL CODE, art. 349
8
Vitangcol v. People of the Philippines, G.R. NO. 207406, January 13, 2016.

5
 COUNTERARGUMENTS

Ms. Beru shall be held liable for Bigamy because under Article 349 of
the Revised Penal Code, this punishes the act of contracting a subsequent
marriage during the subsistence of a valid marriage as reiterated by the Court
in Tenebro vs. Court of Appeals.9 Furthermore, the Court cited Landicho vs.
Relova, et al. in Vitangcol vs. People of the Philippines that:

“Parties to a marriage should not be permitted to judge for

themselves its nullity, only competent courts having such
authority. Prior to such declaration of nullity, the validity
of the first marriage is beyond question. A party who
contracts a second marriage then assumes the risk of
being prosecuted for bigamy.”10
Pursuant to the cited jurisprudence, the first marriage remains valid and
can only be void if the court declared so. Absence of the court declaration, the
first marriage is valid despite the claim that is it void ab initio. In this case,
Ms. Beru was not able to secure a court decision declaring that the marriage
between her and Mr. Lando was void.
As commented by Luis B. Reyes in the “Revised Penal Code Criminal
Law Book II”, It is now settled that the fact the first marriage is void from the
beginning is not a defense in a bigamy charge.11 Article 40 of the Family Code
states that “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.”12 In Wiegel v. Sempio-Diy, the Supreme Court held
that there is a need of a judicial determination of the fact that the marriage of
a person is void before that person can marry again; otherwise, the second
marriage will be void.13

Therefore, due to the absence of a judicial declaration of nullity of

marriage between Ms. Beru and Mr. Lando, Ms. Beru is liable for Bigamy
because she contracted a subsequent marriage despite her subsisting marriage
with Mr. Lando.

RESPONSE TO THE COUNTERARGUMENTS

Ms. Beru cannot be held liable for Bigamy despite her failure to secure
a court declaration of nullity of her first marriage with Mr. Lando because she
did not have the criminal intent to commit the crime and she signed the
simulated marriage contract in good faith, believing that the simulated
9
Tenebro v. Court of Appeals, G.R. NO. 150758, February 18, 2004.
10
Vitangcol v. People of the Philippines, G.R. NO. 207406, January 13, 2016.

11
L. Reyes, THE REVISED PENAL CODE: CRIMINAL LAW BOOK II 1007 (19th ed., 2017)
12
FAMILY CODE, art. 40
13
Wiegel v. Sempio-Diy, G.R. NO. 53703, August 19, 1986.

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marriage contract was not registered. She only found out that it was registered
after the filing of the complaint for Bigamy.
Furthermore, the Supreme Court held in Morigo y Cacho vs. People of
the Philippines that:

“In the instant case, however, no marriage ceremony at

all was performed by a duly authorized solemnizing
officer. Petitioner and Lucia Barrete merely signed a
marriage contract on their own. The mere private act of
signing a marriage contract bears no semblance to a valid
marriage and thus, needs no judicial declaration of
nullity. Such act alone, without more, cannot be deemed
to constitute an ostensibly valid marriage for which
petitioner might be held liable for bigamy unless he first
secures a judicial declaration of nullity before he
contracts a subsequent marriage.

The law abhors an injustice and the Court is mandated to

liberally construe a penal statute in favor of an accused
and weigh every circumstance in favor of the
presumption of innocence to ensure that justice is done.
Under the circumstances of the present case, we held that
petitioner has not committed bigamy.”14

Likewise in this case, there was no marriage ceremony celebrated and

no declaration was made before an authorized solemnizing officer. Ms. Beru
and Mr. Lando, merely signed a marriage contract in private which does not
consist of a valid marriage. Moreover, penal laws a liberally construed in favor
of the accused. Therefore, acts done in good faith may free any one from
liability. Ms. Beru had no criminal intent to commit Bigamy and her failure
to secure a judicial declaration of nullity is an error of judgment coupled with
mistake of fact. Hence, MS. Beru cannot be liable for Bigamy.
CONCLUSION
In the light of the foregoing, Ms. Beru cannot be held liable under
Article 349 of the Revised Penal Code because she was not legally married to
Mr. Lando when she married to Mr. Owen. Lastly, Ms. Beru acted in good
faith when signed the simulated marriage contract.
Furthermore, it is highly recommended that we present the local civil
registrar as our witness or to obtain a certification from the Office of the Local
Civil Registrar that no marriage license exist proving the marriage between
Ms. Beru and Mr. Lando.
We also recommend to present Mr. Lando as our witness to attest that
the alleged marriage between him and our client was merely simulated.
Hence, such marriage is void. With these, we can effectively defend for the
acquittal of Ms. Beru.

14
Morigo y Cacho v. People of the Philippines, G.R. NO. 145226, February 6, 2004.