LAW OFFICE MEMORANDUM

TO: Senior Partner

FROM: Louise Anne Fatima E. Pellero
DATE: April 16, 2019
RE: Beru v. Owen
Simulated marriage contract as defense for Bigamy Case

STATEMENT OF THE ASSIGNMENT

You have asked me to prepare a memorandum of law addressing the

issue our client, Ms. Beru is facing. Accused of bigamy by her husband, Mr.
Owen, on the ground that Beru contracted a marriage with Lando prior to
their marriage. Pursuant to the request, this memorandum contains the key
facts, issues, and arguments as well as possible defenses that we may rely
upon and may use as support for her acquittal.

FACTS

Accused, Ms. Beru was a party to a simulated marriage with her

previous boyfriend, Lando, in 2010. The purpose of which was to discourage
Corde, another woman impregnated by Lando, from pursuing him, showing
that he is already married to Beru. Accused contracted a marriage with Mr.
Owen, complainant, in 2012. However, Mr. Owen filed a complaint for
bigamy against Ms. Beru in 2018 where he alleged that prior to their
marriage in 2012, accused have already entered into a contract of marriage
with a certain Mr. Lando. Accused denied the allegations of her husband, but
admitted to the simulated marriage in 2010, where she was convinced by
Lando to sign the simulated marriage contract. Accused alleged further that a
marriage ceremony did not take place and that she and Lando did not live
together after signing the simulated marriage contract. Beru discovered that
Lando registered the simulated marriage contract only after the bigamy
complaint was filed in court.

ISSUE/ QUESTION PRESENTED

 Whether, under our Family Code, the alleged simulated marriage of
accused Beru and Lando executed privately without a marriage
ceremony and without the presence of an authorized solemnizing officer,
be held as a valid marriage and be a ground for accused to be guilty of
bigamy punishable by Art. 349 of the Revised Penal Code of the
Philippines.
 Whether, under the New Civil Code, the alleged simulated marriage of
Beru and Lando, made for the purpose of discouraging Corde from
pursuing the latter, where accused was merely convinced to sign such
simulated contract and was registered without the knowledge and
consent of the accused, be held as void and inexistent.

BRIEF ANSWER

 No. The simulated marriage entered by Ms. Beru and Mr. Lando can not
be held as a valid marriage and can not be a ground for bigamy because
it lacks the requisites provided for by the family code rendering it as void
ab initio. Because her marriage with Mr. Lando is invalid, one of the
essential elements for Bigamy to be committed is not present in this case.
 Yes. The simulated marriage contract can be held as void and inexistent.
Because under the New Civil Code of the Philippines, contracts that are
absolutely simulated where both parties have no intent to be bound by
such, are void and inexistent.

DISCUSSION/ ANALYSIS

Ms. Beru cannot be held liable and guilty of Bigamy because there is
a non-compliance to the elements provided in Art. 349 of the Revised Penal
Code, as the alleged prior marriage claimed by her husband to be subsisting
when she married him is simulated, rendering it void and inexistent, and it
failed to comply with the formal and essential requisites provide by law
to consider it as a valid marriage.

The facts of the case points that the issue to be addressed primarily is
the validity of the simulated marriage of Ms. Beru and Mr. Lando, the
answer to such question would then answer the main issue as to the
requisites of bigamy charged be complied with. The rule of law governing
the validity and requisites of marriage is the Family Code of the
Philippines, specifically Articles 2 and 3 which provides that:
 Article. 2 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.

Article. 3 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; 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.

Moreover, the absence of one of the requisites mentioned above shall

render the marriage invalid. It is expressly laid down in Article 4 of the same
code, stating that:

Article. 4 The absence of any of the essential of 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

In the case of Morigo vs. People, where no marriage ceremony at all

was performed by a duly authorized solemnizing officer and that the
petitioner and Lucia Barrete merely signed a marriage contract on their own.
It was held that:

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.1

1
Morigo y Cacho v. People, G.R. No. 145226, February 6, 2004
 In the case at bar, Ms. Beru got married with Mr. Owen in 2012, now
our client’s husband claims that their marriage was contracted during the
subsistence of a previous marriage of Ms. Beru and her previous boyfriend.
Now our client claims she is not married but just a party to simulated
contract of marriage. It is evident from the statement of Ms. Beru that a
marriage ceremony had not taken place and it can be inferred that the
signing of the simulated marriage contract was done privately, as it was
merely between Beru and Lando, without an express declaration that it was
done in the presence of an authorized solemnizing officer and witnessed at
least by two people of legal age. A marriage ceremony is one of the formal
requisites of marriage and the consent freely given in the presence of a
solemnizing officer is an essential element, the absence of such requisites
renders the simulated marriage of Beru and Lando void ab initio.

A marriage that is void ab initio is considered as having never to

have taken place and cannot be the source of rights.2 The difference of void
and voidable marriage is clearly laid down in the case of Castillo v. De Leon
Castillo, which provides that:

Under the Civil Code, a void marriage differs from a voidable

marriage in the following ways: (1) a void marriage is nonexistent —
i.e., there was no marriage from the beginning — while in a voidable
marriage, the marriage is valid until annulled by a competent court;
(2) a void marriage cannot be ratified, while a voidable marriage can
be ratified by cohabitation; (3) being nonexistent, a void marriage
can be collaterally attacked, while a voidable marriage cannot be
collaterally attacked; (4) in a void marriage, there is no conjugal
partnership and the offspring are natural children by legal fiction,
while in voidable marriage there is conjugal partnership and the
children conceived before the decree of annulment are considered
legitimate; and (5) "in a void marriage no judicial decree to establish
the invalidity is necessary," while in a voidable marriage there must
be a judicial decree.3

Applying this principle to the case at bar, it can be a defense that the
simulated marriage, it being void ab initio can be collaterally attacked and a
judicial decree is not necessary to establish its invalidity.

The opposing counsel may counter-argue that it is alleged in the facts

of the case that the simulated marriage contract was registered. However, we
can counter this by stating that such contract can also be held as void and
non-existent, applying the general rule for contracts under Article 1409 (2)
of the New Civil Code of the Philippines which provides that:
2
Niñal v. Bayadog, G.R. No. 133778, March 14, 2000
3
Castillo v. De Leon Castillo, G.R. No. 189607, April 18, 2016
 Art. 1409. The following contracts are inexistent and void from
the beginning:
xxx xxx xxx
(2) Those which are absolutely simulated or fictitious;
xxx xxx xxx

In the case of Bangayan vs. Bangayan Jr., the Supreme Court ruled
that:
Under Article 35 of the Family Code, a marriage solemnized
without a license, except those covered by Article 34 where no
license is necessary, "shall be void from the beginning." In this case,
the marriage between Benjamin and Sally was solemnized without a
license. It was duly established that no marriage license was issued to
them and that Marriage License No. N-07568 did not match the
marriage license numbers issued by the local civil registrar of Pasig
City for the month of February 1982. The case clearly falls under
Section 3 of Article 35 which made their marriage void ab initio. 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."
4

Applying the provision and jurisprudence mentioned, simulation

renders the contract non-existent and void. Simulation of a contract may be
absolute or relative. The former takes place when the parties do not intend to
be bound at all.5 It is clear form the alleged facts that Ms. Beru and Mr.
Lando did not intend to be bound at all to such contract because the mere
purpose of which was to stop Corde from pursuing Lando. Even if they were
in a relationship at the time the simulated contract was done, they did not
intend to be bound by marriage. It is further evidenced by the fact that after
the signing of the simulated contract, they did not live together and went
their separate ways. Clearly there was no intent by both parties, rendering
the contract absolutely simulated and in effect is void and inexistent.

Addressing the main issue of bigamy our client, Ms. Beru, was
charged with, under the Revised Penal Code, 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

4
Go-Bangayan v. Bangayan, JR., GR. 201061, July 3, 2013
5
Art. 1345, New Civil Code of the Philippines
judgment rendered in the proper proceedings. For the accused to be
convicted of such crime the following elements must be proven:

1.Offender has been legally married

2.Offender contracts a subsequent marriage
Offender contracts subsequent marriage without the legal
3.
dissolution of the previous marriage or before the absent spouse has been
declared presumptively dead by means of final judgment in the proper
proceedings.
4. Subsequent marriage has all the essential and formal requisites for
6
validity.

The facts or the case indicates that there is a non-compliance of the

above mentioned requisites in order to convict our client, Ms. Beru, of
bigamy. The first essential element is not present is this case. As it requires
that the offender has been legally married, the facts as stated above, shows
that Ms. Beru was and is not, in the eyes of law, married to Mr. Lando. The
prior simulated marriage contract failed to comply with the formal and
essential requisites provided for by law, and as it is simulated, it is in effect,
void and inexistent. Logically, there is no marriage to speak of.

The prosecution may raise a counterarguement that the prior

simulated marriage that is void ab initio is not a defense for bigamy. As with
a voidable marriage, there must be a judicial declaration of the nullity of a
marriage before contracting the second marriage. Article 40 of the Family
Code of the Philippines 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." and they can further
argue that even with such judicial decree the crime has already been
committed. However, we can counter their arguments emphasizing that the
facts of the attested that Ms. Beru entered the contract of marriage with Mr.
Owen without malice and evil intent. The crime of bigamy, just like other
felonies punished under the Revised Penal Code, is mala in se, and hence,
good faith and lack of criminal intent are allowed as a complete defense.7
She contracted the marriage with Mr. Owen in good faith, believing that she
was single and was never married prior their marriage in 2012. It can be held
that she did not deliberately and knowingly intend to commit bigamy which
is nugatory to the general principle. The facts of the case even puts her as a
victim as she is without knowledge and consent of the registration of said
simulated contract by Mr. Lando. Although, it can not be availed of as a
valid defense in every criminal situation, in the case our client faces, good

6
Art. 349, Revised Penal Code
7
Morigo y Cacho v. People, G.R. No. 145226, February 6, 2004
faith can instill reasonable doubt leading to her acquittal as it is required that
there must be proof beyond reasonable doubt in order to convict her.

CONCLUSION

In accordance with the laws and jurisprudence, Ms. Beru cannot be

held liable and guilty of Bigamy because there is a non-compliance to the
elements provided in Art. 349 of the Revised Penal Code, as the alleged
prior marriage claimed by her husband to be subsisting when she married
him is simulated, rendering it void and inexistent, and it failed to comply
with the formal and essential requisites provided by law to consider it as a
valid marriage.

Our contention is tenable, we have laws and jurisprudence as strong

defenses against the prosecution. However, we must also take into account
that the opposing side has defenses that are as equally substantial. It is of my
legal opinion that we should primarily assail the validity of the simulated
contract of marriage so that we can disprove the first essential element of
bigamy. In addition, we should also emphasize on the fact the our client
acted with good faith in contracting her marriage with the complainant. We
should also have Lando as a witness to testify the simulation of the contract
as it seems that there is no ill will or hostility between him and our client.