SECOND DIVISION

[G.R. No. 145226. February 6, 2004.]

LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF
THE PHILIPPINES, respondent.
DECISION
QUISUMBING, J p:
This petition for review on certiorari seeks to reverse
the decision 1 dated October 21, 1999 of the Court
of Appeals in CA-G.R. CR No. 20700, which affirmed
the judgment 2 dated August 5, 1996 of the
Regional Trial Court (RTC) of Bohol, Branch 4, in
Criminal Case No. 8688. The trial court found herein
petitioner Lucio Morigo y Cacho guilty beyond
reasonable doubt of bigamy and sentenced him to
a prison term of seven (7) months of prision
correccional as minimum to six (6) years and one
(1) day of prision mayor as maximum. Also assailed
in this petition is the resolution 3 of the appellate
court, dated September 25, 2000, denying Morigo's
motion for reconsideration. CTAIHc
The facts of this case, as found by the court a quo,
are as follows:
Appellant Lucio Morigo and Lucia Barrete were
boardmates at the house of Catalina Tortor at
Tagbilaran City, Province of Bohol, for a period of
four (4) years (from 1974-1978).
After school year 1977-78, Lucio Morigo and Lucia
Barrete lost contact with each other.
In 1984, Lucio Morigo was surprised to receive a
card from Lucia Barrete from Singapore. The former
replied and after an exchange of letters, they
became sweethearts.
In 1986, Lucia returned to the Philippines but left
again for Canada to work there. While in Canada,
they maintained constant communication.
In 1990, Lucia came back to the Philippines and
proposed to petition appellant to join her in
Canada. Both agreed to get married, thus they
were married on August 30, 1990 at the Iglesia de
Filipina Nacional at Catagdaan, Pilar, Bohol.
On September 8, 1990, Lucia reported back to her
work in Canada leaving appellant Lucio behind.
On August 19, 1991, Lucia filed with the Ontario
Court (General Division) a petition for divorce
against appellant which was granted by the court
on January 17, 1992 and to take effect on February
17, 1992.
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On October 4, 1992, appellant Lucio Morigo

married Maria Jececha Lumbago 4 at the Virgen
sa Barangay Parish, Tagbilaran City, Bohol.
On September 21, 1993, accused filed a complaint
for judicial declaration of nullity of marriage in the
Regional Trial Court of Bohol, docketed as Civil
Case No. 6020. The complaint seek (sic) among
others, the declaration of nullity of accused's
marriage with Lucia, on the ground that no
marriage ceremony actually took place. cHESAD
On October 19, 1993, appellant was charged with
Bigamy in an Information 5 filed by the City
Prosecutor of Tagbilaran [City], with the Regional
Trial Court of Bohol. 6
The petitioner moved for suspension of the
arraignment on the ground that the civil case for
judicial nullification of his marriage with Lucia posed
a prejudicial question in the bigamy case. His
motion was granted, but subsequently denied upon
motion for reconsideration by the prosecution.
When arraigned in the bigamy case, which was
docketed as Criminal Case No. 8688, herein
petitioner pleaded not guilty to the charge. Trial
thereafter ensued.
On August 5, 1996, the RTC of Bohol handed down
its judgment in Criminal Case No. 8688, as follows:
WHEREFORE, foregoing premises considered, the
Court finds accused Lucio Morigo y Cacho guilty
beyond reasonable doubt of the crime of Bigamy
and sentences him to suffer the penalty of
imprisonment ranging from Seven (7) Months of
Prision Correccional as minimum to Six (6) Years and
One (1) Day of Prision Mayor as maximum.
SO ORDERED. 7
In convicting herein petitioner, the trial court
discounted petitioners claim that his first marriage
to Lucia was null and void ab initio. Following
Domingo v. Court of Appeals, 8 the trial court ruled
that want of a valid marriage ceremony is not a
defense in a charge of bigamy. The parties to a
marriage should not be allowed to assume that
their marriage is void even if such be the fact but
must first secure a judicial declaration of the nullity
of their marriage before they can be allowed to
marry again.
Anent the Canadian divorce obtained by Lucia,
the trial court cited Ramirez v. Gmur, 9 which held
that the court of a country in which neither of the
spouses is domiciled and in which one or both

spouses may resort merely for the purpose of

obtaining a divorce, has no jurisdiction to
determine the matrimonial status of the parties. As
such, a divorce granted by said court is not entitled
to recognition anywhere. Debunking Lucio's
defense of good faith in contracting the second
marriage, the trial court stressed that following
People v. Bitdu, 10 everyone is presumed to know
the law, and the fact that one does not know that
his act constitutes a violation of the law does not
exempt him from the consequences thereof.
Seasonably, petitioner filed an appeal with the
Court of Appeals, docketed as CA-G.R. CR No.
20700.
Meanwhile, on October 23, 1997, or while CA-G.R.
CR No. 20700 was pending before the appellate
court, the trial court rendered a decision in Civil
Case No. 6020 declaring the marriage between
Lucio and Lucia void ab initio since no marriage
ceremony actually took place. No appeal was
taken from this decision, which then became final
and executory.
On October 21, 1999, the appellate court decided
CA-G.R. CR No. 20700 as follows:
WHEREFORE, finding no error in the appealed
decision, the same is hereby AFFIRMED in toto.

upon a difficult question of law (such as the effect

of a foreign divorce decree) to be a basis for good
faith. CIAHaT
On September 25, 2000, the appellate court denied
the motion for lack of merit. 16 However, the denial
was by a split vote. The ponente of the appellate
courts original decision in CA-G.R. CR No. 20700,
Justice Eugenio S. Labitoria, joined in the opinion
prepared by Justice Bernardo P. Abesamis. The
dissent observed that as the first marriage was
validly declared void ab initio, then there was no
first marriage to speak of. Since the date of the
nullity retroacts to the date of the first marriage and
since herein petitioner was, in the eyes of the law,
never married, he cannot be convicted beyond
reasonable doubt of bigamy.
The present petition raises the following issues for our
resolution:
A.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
FAILING TO APPLY THE RULE THAT IN CRIMES
PENALIZED UNDER THE REVISED PENAL CODE,
CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE.
COROLLARILY, WHETHER OR NOT THE COURT OF
APPEALS ERRED IN FAILING TO APPRECIATE [THE]
PETITIONERS LACK OF CRIMINAL INTENT WHEN HE
CONTRACTED THE SECOND MARRIAGE.

SO ORDERED. 11
B.
In affirming the assailed judgment of conviction, the
appellate court stressed that the subsequent
declaration of nullity of Lucio's marriage to Lucia in
Civil Case No. 6020 could not acquit Lucio. The
reason is that what is sought to be punished by
Article 349 12 of the Revised Penal Code is the act
of contracting a second marriage before the first
marriage had been dissolved. Hence, the CA held,
the fact that the first marriage was void from the
beginning is not a valid defense in a bigamy case.
The Court of Appeals also pointed out that the
divorce decree obtained by Lucia from the
Canadian court could not be accorded validity in
the Philippines, pursuant to Article 15 13 of the Civil
Code and given the fact that it is contrary to public
policy in this jurisdiction. Under Article 17 14 of the
Civil Code, a declaration of public policy cannot
be
rendered
ineffectual
by a
judgment
promulgated in a foreign jurisdiction.
Petitioner moved for reconsideration of the
appellate courts decision, contending that the
doctrine in Mendiola v. People, 15 allows mistake
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WHETHER OR NOT THE COURT OF APPEALS ERRED IN

HOLDING THAT THE RULING IN PEOPLE VS. BITDU (58
PHIL. 817) IS APPLICABLE TO THE CASE AT BAR.
C.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN
FAILING TO APPLY THE RULE THAT EACH AND EVERY
CIRCUMSTANCE FAVORING THE INNOCENCE OF THE
ACCUSED MUST BE TAKEN INTO ACCOUNT. 17
To our mind, the primordial issue should be whether
or not petitioner committed bigamy and if so,
whether his defense of good faith is valid.
The petitioner submits that he should not be faulted
for relying in good faith upon the divorce decree of
the Ontario court. He highlights the fact that he
contracted the second marriage openly and
publicly, which a person intent upon bigamy would
not be doing. The petitioner further argues that his
lack of criminal intent is material to a conviction or
acquittal in the instant case. 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. He stresses that there is a
difference between the intent to commit the crime
and the intent to perpetrate the act. Hence, it does
not necessarily follow that his intention to contract
a second marriage is tantamount to an intent to
commit bigamy.
For the respondent, the Office of the Solicitor
General (OSG) submits that good faith in the instant
case is a convenient but flimsy excuse. The Solicitor
General relies upon our ruling in Marbella-Bobis v.
Bobis, 18 which held that bigamy can be
successfully prosecuted provided all the elements
concur, stressing that under Article 40 19 of the
Family Code, a judicial declaration of nullity is a
must before a party may re-marry. Whether or not
the petitioner was aware of said Article 40 is of no
account as everyone is presumed to know the law.
The OSG counters that petitioners contention that
he was in good faith because he relied on the
divorce decree of the Ontario court is negated by
his act of filing Civil Case No. 6020, seeking a
judicial declaration of nullity of his marriage to
Lucia.
Before we delve into petitioners defense of good
faith and lack of criminal intent, we must first
determine whether all the elements of bigamy are
present in this case. In Marbella-Bobis v. Bobis, 20
we laid down the elements of bigamy thus:

(1)the offender has been legally married;

(2)the first marriage has not been legally dissolved,
or in case his or her spouse is absent, the absent
spouse has not been judicially declared
presumptively dead;
(3)he contracts a subsequent marriage; and
(4)the subsequent marriage would have been valid
had it not been for the existence of the first.
Applying the foregoing test to the instant case, we
note that during the pendency of CA-G.R. CR No.
20700, the RTC of Bohol Branch 1, handed down
the following decision in Civil Case No. 6020, to wit:
WHEREFORE, premises considered, judgment is
hereby rendered decreeing the annulment of the
marriage entered into by petitioner Lucio Morigo
and Lucia Barrete on August 23, 1990 in Pilar, Bohol
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and further directing the Local Civil Registrar of Pilar,

Bohol to effect the cancellation of the marriage
contract.
SO ORDERED. 21
The trial court found that there was no actual
marriage ceremony performed between Lucio and
Lucia by a solemnizing officer. Instead, what
transpired was a mere signing of the marriage
contract by the two, without the presence of a
solemnizing officer. The trial court thus held that the
marriage is void ab initio, in accordance with
Articles 3 22 and 4 23 of the Family Code. As the
dissenting opinion in CA-G.R. CR No. 20700,
correctly puts it, This simply means that there was
no marriage to begin with; and that such
declaration of nullity retroacts to the date of the first
marriage. In other words, for all intents and
purposes, reckoned from the date of the
declaration of the first marriage as void ab initio to
the date of the celebration of the first marriage, the
accused was, under the eyes of the law, never
married." 24 The records show that no appeal was
taken from the decision of the trial court in Civil
Case No. 6020, hence, the decision had long
become final and executory.
The first element of bigamy as a crime requires that
the accused must have been legally married. But in
this case, legally speaking, the petitioner was never
married to Lucia Barrete. Thus, there is no first
marriage to speak of. Under the principle of
retroactivity of a marriage being declared void ab
initio, the two were never married from the
beginning. The contract of marriage is null; it bears
no legal effect. Taking this argument to its logical
conclusion, for legal purposes, petitioner was not
married to Lucia at the time he contracted the
marriage with Maria Jececha. The existence and
the validity of the first marriage being an essential
element of the crime of bigamy, it is but logical that
a conviction for said offense cannot be sustained
where there is no first marriage to speak of. The
petitioner, must, perforce be acquitted of the
instant charge. IAETSC
The present case is analogous to, but must be
distinguished from Mercado v. Tan. 25 In the latter
case, the judicial declaration of nullity of the first
marriage was likewise obtained after the second
marriage was already celebrated. We held therein
that:
A judicial declaration of nullity of a previous
marriage is necessary before a subsequent one
can be legally contracted. One who enters into a

subsequent marriage without first obtaining such

judicial declaration is guilty of bigamy. This principle
applies even if the earlier union is characterized by
statutes as "void." 26
It bears stressing though that in Mercado, the first
marriage was actually solemnized not just once, but
twice: first before a judge where a marriage
certificate was duly issued and then again six
months later before a priest in religious rites.
Ostensibly, at least, the first marriage appeared to
have transpired, although later declared void ab
initio. ASHEca
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. Further, we
also find that we need not tarry on the issue of the
validity of his defense of good faith or lack of
criminal intent, which is now moot and academic.
WHEREFORE, the instant petition is GRANTED. The
assailed decision, dated October 21, 1999 of the
Court of Appeals in CA-G.R. CR No. 20700, as well
as the resolution of the appellate court dated
September 25, 2000, denying herein petitioners
motion for reconsideration, is REVERSED and SET
ASIDE. The petitioner Lucio Morigo y Cacho is
ACQUITTED from the charge of BIGAMY on the
ground that his guilt has not been proven with
moral certainty.
SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr. and Tinga, JJ.,
concur.

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SECOND DIVISION
[G.R. No. L-53703. August 19, 1986.]
LILIA OLIVA WIEGEL, petitioner, vs. THE HONORABLE
ALICIA V. SEMPIO-DIY (as presiding judge of the
Juvenile and Domestic Relations Court of Caloocan
City) and KARL HEINZ WIEGEL, respondents.
Dapucanta, Dulay & Associates for petitioner.
Siguion Reyna, Montecillo and Ongsiako Law Office
for private respondent.
SYLLABUS
1.CIVIL LAW; FAMILY RELATIONS; VOID MARRIAGE;
EVIDENCE THAT PRIOR MARRIAGE WAS VITIATED BY
FORCE; NEED NOT BE INTRODUCED. There is not
need for petitioner to prove that her first marriage
was vitiated by force committed against both
parties because assuming this to do so, the
marriage will not be void but merely voidable (Art.
85, Civil Code), and therefore valid until annulled.
Since no annulment has yet been made, it is clear
that when she married respondent she was still
validly married to her first husband, consequently,
her marriage to respondent is VOID (Art. 80, Civil
Code).
2.ID.; ID.; ID.; EVIDENCE ABOUT THE EXISTING PRIOR
MARRIAGE OF FIRST SPOUSE; NEED NOT BE
INTRODUCED. There is likewise no need of
introducing evidence about the existing prior
marriage of her first husband at the time they
married each other, for then such a marriage
though void still needs according to this Court a
judicial declaration of such fact and for all legal
intents and purposes she would still be regarded as
a married woman at the time she contracted her
marriage with respondent Karl Heinz Wiegel;
accordingly, the marriage of petitioner and
respondent would be regarded VOID under the
law.
DECISION
PARAS, J p:
In an action (Family Case No. 483) filed before the
erstwhile Juvenile and Domestic Relations Court of
Caloocan City, herein respondent Karl Heinz Wiegel
(plaintiff therein) asked for the declaration of Nullity
of his marriage (celebrated on July, 1978 at the
Holy Catholic Apostolic Christian Church Branch in
Makati, Metro Manila) with herein petitioner Lilia
Oliva Wiegel (Lilia, for short, and defendant therein)
on the ground of Lilia's previous existing marriage to
one Eduardo A. Maxion, the ceremony having
been performed on June 25, 1972 at our Lady of
Lourdes Church in Quezon City. Lilia, while
admitting the existence of said prior subsisting
marriage claimed that said marriage was null and
void, she and the first husband Eduardo A. Maxion

having been allegedly forced to enter said marital

union. In the pre-trial that ensued, the issue agreed
upon by both parties was the status of the first
marriage (assuming the presence of force exerted
against both parties): was said prior marriage void
or was it merely voidable? Contesting the validity of
the pre-trial order, Lilia asked the respondent court
for an opportunity to present evidence

WHEREFORE, this petition is hereby DISMISSED, for

lack of merit, and the Orders complained of are
hereby AFFIRMED. Costs against petitioner.

(1)that the first marriage was vitiated by force

exercised upon both her and the first husband; and

EN BANC
[A.C. No. 2349. July 3, 1992.]
DOROTHY B. TERRE, complainant, vs. ATTY. JORDAN
TERRE, respondent.
Public Attorney's Office for complainant.

(2)that the first husband was at the time of the

marriage in 1972 already married to someone else.
Respondent judge ruled against the presentation of
evidence because the existence of force exerted
on both parties of the first marriage had already
been agreed upon. Hence, the present petition for
certiorari assailing the following Orders of the
respondent Judge
(1)the Order dated March 17, 1980 in which the
parties were compelled to submit the case for
resolution based on "agreed facts;" and
(2)the Order dated April 14, 1980, denying
petitioner's motion to allow her to present evidence
in her favor.
We find the petition devoid of merit.
There is no need for petitioner to prove that her first
marriage was vitiated by force committed against
both parties because assuming this to be so, the
marriage will not be void but merely viodable (Art.
85, Civil Code), and therefore valid until annulled.
Since no annulment has yet been made, it is clear
that when she married respondent she was still
validly married to her first husband, consequently,
her marriage to respondent is VOID (Art. 80, Civil
Code).
There is likewise no need of introducing evidence
about the existing prior marriage of her first
husband at the time they married each other, for
then such a marriage though void still needs
according to this Court a judicial declaration 1 of
such fact and for all legal intents and purposes she
would still be regarded as a married woman at the
time she contracted her marriage with respondent
Karl Heinz Wiegel); accordingly, the marriage of
petitioner and respondent would be regarded
VOID under the law.

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SO ORDERED.
Feria (Chairman), Fernan, Alampay and Gutierrez,
Jr., JJ., concur.

SYLLABUS
1.LEGAL ETHICS; ADMINISTRATIVE COMPLAINT;
GROSSLY IMMORAL CONDUCT; PENALTY OF
DISBARMENT IMPOSED IN CASE AT BAR. We
believe and so hold that the conduct of
respondent Jordan Terre in inveigling complainant
Dorothy Terre to contract a second marriage with
him; in abandoning complainant Dorothy Terre
after she had cared for him and supported him
through law school, leaving her without means for
the safe delivery of his own child; in contracting a
second marriage with Helina Malicdem while his first
marriage with complainant Dorothy Terre was
subsisting, constituted "grossly immoral conduct"
under Section 27 of Rule 138 of the Rules of Court,
affording more than sufficient basis for disbarment
of respondent Jordan Terre. He was unworthy of
admission to the Bar in the first place. The Court will
correct this error forthwith.
RESOLUTION
PER CURIAM p:
In a sworn complaint filed with this Court on 24
December 1981, complainant Dorothy B. Terre
charged respondent Jordan Terre, a member of the
Philippine Bar with "grossly immoral conduct,"
consisting of contracting a second marriage and
living with another woman other than complainant,
while his prior marriage with complainant remained
subsisting.
The Court resolved to require respondent to answer
the complaint. 1 Respondent successfully evaded
five (5) attempts to serve a copy of the Court's
Resolution and of the complaint by moving from
one place to another, such that he could not be
found nor reached in his alleged place of
employment or residence. 2 On 24 April 1985, that is
after three (3) years and a half, with still no answer
from the respondent, the Court noted respondent's
success in evading service of the complaint and
the Court's Resolution and thereupon resolved to

"suspend respondent Atty. Jordan Terre from the

practice of law until after he appears and/or files
his answer to the complaint against him" in the
instant case. 3
On 28 September 1985, respondent finally filed an
Answer with a Motion to Set Aside and/or Lift
Suspension Order. In his Answer, Atty. Terre averred
that he had contracted marriage with complainant
Dorothy Terre on 14 June 1977 upon her
representation that she was single; that he
subsequently learned that Dorothy was married to
a certain Merlito A. Bercenilla sometime in 1968;
that when he confronted Dorothy about her prior
marriage, Dorothy drove him out of their conjugal
residence; that Dorothy had mockingly told him of
her private meetings with Merlito A. Bercenilla and
that the child she was then carrying (i.e., Jason
Terre) was the son of Bercenilla; that believing in
good faith that his marriage to complainant was
null and void ab initio, he contracted marriage with
Helina Malicdem at Dasol, Pangasinan. 4
In her reply, complainant Dorothy denied that
Jason Terre was the child of Merlito A. Bercenilla
and insisted that Jason was the child of respondent
Jordan Terre, as evidenced by Jason's Birth
Certificate
and
physical
resemblance
to
respondent. Dorothy further explained that while
she had given birth to Jason Terre at the PAFGH
registered as a dependent of Merlito Bercenilla, she
had done so out of extreme necessity and to avoid
risk of death or injury to the fetus which happened
to be in a difficult breech position. According to
Dorothy, she had then already been abandoned
by respondent Jordan Terre, leaving her penniless
and without means to pay for the medical and
hospital bills arising by reason of her pregnancy.
LLphil
The Court denied respondent's Motion to Set Aside
or Lift the Suspension Order and instead referred, by
a Resolution dated 6 January 1986, the complaint
to the Office of the Solicitor General for
investigation, report and recommendation. 5
Then Solicitor Pio C. Guerrero was appointed
investigator by the Office of the Solicitor General.
He set the case for hearing on 7 July 1986 with
notice to both parties. On 7 July 1986, complainant
Dorothy appeared and presented her evidence ex
parte, since respondent did not so appear. 6 The
Investigating Solicitor scheduled and held another
hearing on 19 August 1986, where he put
clarificatory questions to the complainant;
respondent once again did not appear despite
notice to do so. Complainant finally offered her
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evidence and rested her case. The Solicitor set still

another hearing for 2 October 1986, notifying
respondent to present his evidence with a warning
that should he fail once more to appear, the case
would be deemed submitted for resolution.
Respondent did not appear on 2 October 1986. The
Investigating Solicitor accordingly considered
respondent to have waived his right to present
evidence and declared the case submitted for
resolution. The parties were given time to submit
their respective memoranda. Complainant Dorothy
did so on 8 December 1986. Respondent Terre did
not file his memorandum.
On 26 February 1990, the Office of the Solicitor
General
submitted
its
"Report
and
Recommendation" to this Court. The Report
summarized the testimony of the complainant in
the following manner:
"Complainant Dorothy Terre took the witness stand
and testified substantially as follows: she and
respondent met for the first time in 1979 as fourth
year high school classmates in Cadiz City High
School (tsn, July 7, 1986, p. 9); she was then married
to Merlito Bercenilla, while respondent was single
(id.); respondent was aware of her marital status
(ibid, p. 14); it was then that respondent started
courting her but nothing happened of the courtship
(ibid, p. 10); they [complainant and respondent]
moved to Manila were they respectively pursued
their education, respondent as a law student at the
Lyceum University (tsn, July 7, 1986, p. 12, 15-16);
respondent continued courting her, this time with
more persistence (ibid, p. 11); she decided nothing
would come of it since she was married but he
[respondent] explained to her that their marriage
was void ab initio since she and her first husband
were first cousins (ibid. p . 12); convinced by his
explanation and having secured favorable advice
from her mother and ex-in-laws, she agreed to
marry him [respondent] (ibid, 12-13, 16); in their
marriage license, despite her [complainant's]
objection, he [respondent] wrote 'single' as her
status explaining that since her marriage was void
ab initio, there was no need to go to court to
declare it as such (ibid, 14-15); they were married
before Judge Priscilla Mijares of the City Court of
Manila on June 14, 1977 (Exhibit A; tsn, July 7, 1986,
pp. 16-17); Jason Terre was born of their union on
June 25, 1981 (Exhibit B, tsn, July 7, 1986, p. 18); all
through their married state up to the time he
[respondent] disappeared in 1981, complainant
supported respondent, in addition to the allowance
the latter was getting from his parents (ibid, pp. 1920); she was unaware of the reason for his
disappearance until she found out later that

respondent married a certain Vilma [sic] Malicdem

(Exhibit C, tsn, July 7, 1986, pp. 21-22); she then filed
a case for abandonment of minor with the City
Fiscal of Pasay City (ibid, p. 23) which was
subsequently filed before Branch II of the City Court
of Pasay City as Criminal Case No. 816159 (Exhibit
D; tsn, July 7, 1986, p. 24); she likewise filed a case
for bigamy against respondent and Helina
Malicdem with the office of the Provincial Fiscal of
Pangasinan, where a prima facie case was found
to exist (Exhibit E; tsn, July 7, pp. 25-26); additionally,
complainant filed an administrative case against
respondent with the Commission on Audit where he
was employed, which case however was
considered closed for being moot and academic
when respondent was considered automatically
separated from the service for having gone on
absence without official leave (Exhibit F; tsn, July 7,
1986, pp. 28-29)." 7
There is no dispute over the fact that complainant
Dorothy Terre and respondent Jordan Terre
contracted marriage on 14 July 1977 before Judge
Priscila Mijares. There is further no dispute over the
fact that on 3 May 1981, respondent Jordan Terre
married Helina Malicdem in Dasol, Pangasinan.
When the second marriage was entered into,
respondent's prior marriage with complainant was
subsisting, no judicial action having been initiated
or any judicial declaration obtained as to the nullity
of such prior marriage of respondent with
complainant. llcd
Respondent Jordan Terre sought to defend himself
by claiming that he had believed in good faith that
his prior marriage with complainant Dorothy Terre
was null and void ab initio and that no action for a
judicial declaration of nullity was necessary.
The Court considers this claim on the part of
respondent Jordan Terre as a spurious defense. In
the first place, respondent has not rebutted
complainant's evidence as to the basic facts which
underscores the bad faith of respondent Terre. In
the second place, that pretended defense is the
same argument by which he had inveigled
complainant into believing that her prior marriage
to Merlito A. Bercenilla being incestuous and void
ab initio (Dorothy and Merlito being allegedly first
cousins to each other), she was free to contract a
second marriage with the respondent. Respondent
Jordan Terre, being a lawyer, knew or should have
known that such an argument ran counter to the
prevailing case law of this court which holds that for
purposes of determining whether a person is legally
free to contract a second marriage, a judicial
declaration that the first marriage was null and void
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ab initio is essential. 8 Even if we were to assume,

arguendo merely, that Jordan Terre held that
mistaken belief in good faith, the same result will
follow. For if we are to hold Jordan Terre to his own
argument, his first marriage to complainant Dorothy
Terre must be deemed valid, with the result that his
second marriage to Helina Malicdem must be
regarded as bigamous and criminal in character.
That the moral character of respondent Jordan
Terre was deeply flawed is shown by other
circumstances. As noted, he convinced the
complainant that her prior marriage to Bercenilla
was null and void ab initio, that she was still legally
single and free to marry him. When complainant
and respondent had contracted their marriage,
respondent went through law school while being
supported by complainant, with some assistance
from respondent's parents. After respondent had
finished his law course and gotten complainant
pregnant,
respondent
abandoned
the
complainant without support and without the
wherewithal for delivering his own child safely in a
hospital. Cdpr
Thus, we agree with the Solicitor General that
respondent Jordan Terre, by his actions, "eloquently
displayed, not only his unfitness to remain as a
member of the Bar, but likewise his inadequacy to
uphold the purpose and responsibility of his gender"
because marriage is a basic social institution. 9
In Pomperada v. Jochico, 10 the Court, in rejecting
a petition to be allowed to take the oath as a
member of the Bar and to sign the Roll of Attorneys,
said through Mme. Justice Melencio-Herrera:
"It is evident that respondent fails to meet the
standard of moral fitness for membership in the
legal profession. Whether the marriage was a joke
as respondent claims, or a trick played on her as
claimed by complainant, it does not speak well of
respondent's moral values. Respondent had made
a mockery of marriage, a basic social institution
which public policy cherishes and protects (Article
216, Civil Code)." 11
In Bolivar v. Simbol, 12 the Court found the
respondent there guilty of "grossly immoral conduct"
because he made "a dupe of complainant, living
on her bounty and allowing her to spend for his
schooling and other personal necessities while
dangling before her the mirage of a marriage,
marrying another girl as soon as he had finished his
studies, keeping his marriage a secret while
continuing to demand money from complainant. . .

." The Court held such acts "indicative of a

character not worthy of a member of the Bar." 13
We believe and so hold that the conduct of
respondent Jordan Terre in inveigling complainant
Dorothy Terre to contract a second marriage with
him; in abandoning complainant Dorothy Terre
after she had cared for him and supported him
through law school, leaving her without means for
the safe delivery of his own child; in contracting a
second marriage with Helina Malicdem while his first
marriage with complainant Dorothy Terre was
subsisting, constituted "grossly immoral conduct"
under Section 27 of Rule 138 of the Rules of Court,
affording more than sufficient basis for disbarment
of respondent Jordan Terre. He was unworthy of
admission to the Bar in the first place. The Court will
correct this error forthwith. LibLex
WHEREFORE, the Court Resolved to DISBAR
respondent Jordan Terre and to STRIKE OUT his
name from the Roll of Attorneys. A copy of this
decision shall be spread on the personal record of
respondent Jordan Terre in the Bar Confidant's
Office. A copy of this resolution shall also be
furnished to the Integrated Bar of the Philippines
and shall be circularized to all the courts of the
land.
Narvasa, C . J ., Gutierrez, Jr., Cruz, Paras, Feliciano,
Padilla, Bidin, Grio-Aquino, Medialdea, Regalado,
Davide, Jr., Romero, Nocon, and Bellosillo, JJ .,
concur.
FIRST DIVISION
[G.R. No. 122749. July 31, 1996.]
ANTONIO A. S. VALDES, petitioner, vs. REGIONAL
TRIAL COURT, BRANCH 102, QUEZON CITY, and
CONSUELO M. GOMEZ-VALDES, respondents.
Romulo, Mabanta, Buenaventura, Sayoc & De los
Angeles for petitioner.
Roco, Buag, Kapunan & Migallos for private
respondent.
SYLLABUS
1.CIVIL LAW; FAMILY CODE; VOID MARRIAGES;
PROPERTY RELATIONS GOVERNED BY PROPERTY
REGIME OF UNIONS WITHOUT MARRIAGE. In a
void marriage, regardless of the cause thereof, the
property relations of the parties during the period of
cohabitation is governed by the provisions of Article
147 or Article 148, as the case may be, of the Family
Code.
2.ID.; ID.; ID.; ID.; ARTICLE 147, ELABORATED.
Article 147 is a remake of Article 144 of the Civil
Code as interpreted and so applied in previous
cases. This peculiar kind of co-ownership applies
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when a man and a woman, suffering no legal

impediment to marry each other, so exclusively live
together as husband and wife under a void
marriage or without the benefit of marriage. The
term "capacitated" in the first paragraph of Art. 147
refers to the legal capacity of a party to contract
marriage, i.e., any "male or female of the age of
eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38" of the
Code. Under this property regime, property
acquired by both spouses through their work and
industry shall be governed by the rules on equal coownership. Any property acquired during the union
is prima facie presumed to have been obtained
through their joint efforts. A party who did not
participate in the acquisition of the property shall
still be considered as having contributed thereto
jointly if said party's "efforts consisted in the care
and maintenance of the family household." Unlike
the conjugal partnership of gains, the fruits of the
couple's separate property are not included in the
co-ownership. Article 147 of the Family Code, in
substance and to the above extent, has clarified
Article 144 of the Civil Code; in addition, the law
now expressly provides that (a) Neither party can
dispose or encumber by act inter vivos his or her
share in co-ownership property, without the consent
of the other, during the period of cohabitation; and
(b) In the case of a void marriage, any party in bad
faith shall forfeit his or her share in the co-ownership
in favor of their common children; in default thereof
or waiver by any or all of the common children,
each vacant share shall belong to the respective
surviving descendants, or still in default thereof, to
the innocent party. The forfeiture shall take place
upon the termination of the cohabitation or
declaration of nullity of the marriage.
3. ID.; ID.; ID.; ID.; ARTICLE 148, ELABORATED.
When the common-law spouses suffer from a legal
impediment to marry or when they do not live
exclusively with each other (as husband and wife),
only the property acquired by both of them
through their actual joint contribution of money,
property or industry shall be owned in common and
in proportion to their respective contributions. Such
contributions and corresponding shares, however,
are prima facie presumed to be equal. The share of
any party who is married to another shall accrue to
the absolute community or conjugal partnership, as
the case may be, if so existing under a valid
marriage. If the party who has acted in bad faith is
not validly married to another, his or her share shall
be forfeited in the manner already heretofore
expressed.

4.ID.; ID.; VOID AND VOIDABLE MARRIAGES; ARTICLE

50, APPLICABILITY. The first paragraph of Article
50 of the Family Code, applying paragraphs (2), (3),
(4) and (5) of Article 43, relates only, by its explicit
terms, to voidable marriages and, exceptionally, to
void marriages under Article 40 of the Code, i.e.,
the declaration of nullity of a subsequent marriage
contracted by a spouse of a prior void marriage
before the latter is judicially declared void. The
latter is a special rule that somehow recognizes the
philosophy and an old doctrine that void marriages
are inexistent from the very beginning and no
judicial decree is necessary to establish their nullity.
In now requiring for purposes of remarriage, the
declaration of nullity by final judgment of the
previously contracted void marriage, the present
law aims to do away with any continuing
uncertainty on the status of the second marriage. It
is not then illogical for the provisions of Article 43, in
relation to Articles 41 and 42, of the Family Code,
on the effects of the termination of a subsequent
marriage contracted during the subsistence of a
previous marriage to be made applicable pro hac
vice. In all other cases, it is not to be assumed that
the law has also meant to have coincident
property relations, on the one hand, between
spouses in valid and voidable marriages (before
annulment) and, on the other, between commonlaw spouses or spouses of void marriages, leaving to
ordain, in the latter case, the ordinary rules on coownership subject to the provision of Article 147 and
Article 148 of the Family Code. It must be stressed,
nevertheless, even as it may merely state the
obvious, that the provisions of the Family Code on
the "family home," i.e., the provisions found in Title V,
Chapter 2, of the Family Code, remain in force and
effect regardless of the property regime of the
spouses.

avers that the court a quo has failed to apply the

correct law that should govern the disposition of a
family dwelling in a situation where a marriage is
declared void ab initio because of psychological
incapacity on the part of either or both of the
parties to the contract.

5.REMEDIAL LAW; JURISDICTION; COURT IN NULLITY

OF MARRIAGE CAN ALSO SETTLE PARTIES' COMMON
PROPERTY. On the settlement of the parties'
common property, a court which has jurisdiction to
declare the marriage a nullity must be deemed
likewise clothed with authority to resolve incidental
and consequential matters. Here, petitioner and
private respondent own the "family home" and all
their common property in equal shares. In the
liquidation and partition of the property owned in
common by them, the provisions on co-ownership
under the Civil Code should aptly prevail.

"The petitioner and respondent shall have visitation

rights over the children who are in the custody of
the other.

DECISION
VITUG, J p:
The petition for review bewails, purely on a question
of law, an alleged error committed by the Regional
Trial Court in Civil Case No. Q-92-12539. Petitioner
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The pertinent facts giving rise to this incident are, by

and large, not in dispute.
Antonio Valdes and Consuelo Gomez were married
on 05 January 1971. Begotten during the marriage
were five children. In a petition, dated 22 June
1992, Valdes sought the declaration of nullity of the
marriage pursuant to Article 36 of the Family Code
(docketed Civil Case No. Q-92-12539, Regional Trial
Court of Quezon City, Branch 102). After hearing
the parties following the joinder of issues, the trial
court, 1 in its decision of 29 July 1994, granted the
petition; viz:
"WHEREFORE, judgment is hereby rendered as
follows:
"(1)The marriage of petitioner Antonio Valdes and
respondent Consuelo Gomez-Valdes is hereby
declared null and void under Article 36 of the
Family Code on the ground of their mutual
psychological incapacity to comply with their
essential marital obligations;
"(2)The three older children, Carlos Enrique III,
Antonio Quintin and Angela Rosario shall choose
which parent they would want to stay with.
"Stella Eloisa and Joaquin Pedro shall be placed in
the custody of their mother, herein respondent
Consuelo Gomez-Valdes.

"(3)The petitioner and respondent are directed to

start proceedings on the liquidation of their
common properties as defined by Article 147 of the
Family Code, and to comply with the provisions of
Articles 50, 51 and 52 of the same code, within thirty
(30) days from notice of this decision.
"Let a copy of this decision be furnished the Local
Civil Register of Mandaluyong, Metro Manila, for
proper recording in the registry of marriages." 2
(Emphasis ours.)
Consuelo Gomez sought a clarification of that
portion of the decision directing compliance with

Articles 50, 51 and 52 of the Family Code. She

asserted that the Family Code contained no
provisions on the procedure for the liquidation of
common property in "unions without marriage."
Parenthetically, during the hearing on the motion,
the children filed a joint affidavit expressing their
desire to remain with their father, Antonio Valdes,
herein petitioner.
In an Order, dated 05 May 1995, the trial court
made the following clarification:
"Consequently, considering that Article 147 of the
Family Code explicitly provides that the property
acquired by both parties during their union, in the
absence of proof to the contrary, are presumed to
have been obtained through the joint efforts of the
parties and will be owned by them in equal shares,
plaintiff and defendant will own their 'family home'
and all their other properties for that matter in equal
shares.
"In the liquidation and partition of the properties
owned in common by the plaintiff and defendant,
the provisions on co-ownership found in the Civil
Code shall apply." 3 (Emphasis supplied.)
In addressing specifically the issue regarding the
disposition of the family dwelling, the trial court said:
"Considering that this Court has already declared
the marriage between petitioner and respondent
as null and void ab initio, pursuant to Art. 147, the
property regime of petitioner and respondent shall
be governed by the rules on co-ownership.
"The provisions of Articles 102 and 129 of the Family
Code finds no application since Article 102 refers to
the procedure for the liquidation of the conjugal
partnership property and Article 129 refers to the
procedure for the liquidation of the absolute
community of property." 4
Petitioner moved for a reconsideration of the order.
The motion was denied on 30 October 1995.
In his recourse to this Court, petitioner submits that
Articles 50, 51 and 52 of the Family Code should be
held controlling; he argues that:
"I
"Article 147 of the Family Code does not apply to
cases where the parties are psychological
incapacitated.
"II
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"Articles 50, 51 and 52 in relation to Articles 102 and

129 of the Family Code govern the disposition of the
family dwelling in cases where a marriage is
declared void ab initio, including a marriage
declared void by reason of the psychological
incapacity of the spouses.
"III
"Assuming arguendo that Article 147 applies to
marriages declares void ab initio on the ground of
the psychological incapacity of a spouse, the same
may be read consistently with Article 129.
"IV
"It is necessary to determine the parent with whom
majority of the children wish to stay." 5
The trial court correctly applied the law. In a void
marriage, regardless of the cause thereof, the
property relations of the parties during the period of
cohabitation is governed by the provisions of Article
147 or Article 148, such as the case may be, of the
Family Code. Article 147 is a remake of Article 144
of the Civil Code as interpreted and so applied in
previous cases; 6 it provides:
"ART. 147.When a man and a woman who are
capacitated to marry each other, live exclusively
with each other as husband and wife without the
benefit of marriage or under a void marriage, their
wages and salaries shall be owned by them in
equal shares and the property acquired by both of
them through their work or industry shall be
governed by the rules on co-ownership.
"In the absence of proof to the contrary, properties
acquired while they lived together shall be
presumed to have been obtained by their joint
efforts, work or industry, and shall be owned by
them in equal shares. For purposes of this Article, a
party who did not participate in the acquisition by
the other party of any property shall be deemed to
have contributed jointly in the acquisition thereof if
the former's efforts consisted in the care and
maintenance of the family and of the household.
"Neither party can encumber or dispose by acts
inter vivos of his or her share in the property
acquired during cohabitation and owned in
common, without the consent of the other, until
after the termination of their cohabitation.
"When only one of the parties to a void marriage is
in good faith, the share of the party in bad faith in
the co-ownership shall be forfeited in favor of their
common children. In case of default of or waiver by

any or all of the common children or their

descendants, each vacant share shall belong to
the respective surviving descendants. In the
absence of descendants, such share shall belong
to the innocent party. In all cases, the forfeiture shall
take place upon termination of the cohabitation."
This peculiar kind of co-ownership applies when a
man and a woman, suffering no legal impediment
to marry each other, so exclusively live together as
husband and wife under a void marriage or without
the benefit of marriage. The term "capacitated" in
the provision (in the first paragraph of the law)
refers to the legal capacity of a party to contract
marriage, i.e., any "male or female of the age of
eighteen years or upwards not under any of the
impediments mentioned in Articles 37 and 38" 7 of
the Code.
Under this property regime, property acquired by
both spouses through their work and industry shall
be governed by the rules on equal co-ownership.
Any property acquired during the union is prima
facie presumed to have been obtained through
their joint efforts. A party who did not participate in
the acquisition of the property shall still be
considered as having contributed thereto jointly if
said party's "efforts consisted in the care and
maintenance of the family household." 8 Unlike the
conjugal partnership of gains, the fruits of the
couple's separate property are not included in the
co-ownership.
Article 147 of the Family Code, in substance and to
the above extent, has clarified Article 144 of the
Civil Code; in addition, the law now expressly
provides that
(a)Neither party can dispose or encumber by act
inter vivos his or her share in co-ownership property,
without the consent of the other, during the period
of cohabitation; and
(b)In the case of a void marriage, any party in bad
faith shall forfeit his or her share in the co-ownership
in favor of their common children; in default thereof
or waiver by any or all of the common children,
each vacant share shall belong to the respective
surviving descendants, or still in default thereof, to
the innocent party. The forfeiture shall take place
upon the termination of the cohabitation 9 or
declaration of nullity of the marriage. 10
When the common-law spouses suffer from a legal
impediment to marry or when they do not live
exclusively with each other (as husband and wife),
only the property acquired by both of them
through their actual joint contribution of money,
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property or industry shall be owned in common and

in proportion to their respective contributions. Such
contributions and corresponding shares, however,
are prima facie presumed to be equal. The share of
any party who is married to another shall accrue to
the absolute community or conjugal partnership, as
the case may be, if so existing under a valid
marriage. If the party who has acted in bad faith is
not validly married to another, his or her share shall
be forfeited in the manner already heretofore
expressed. 11
In deciding to take further cognizance of the issue
on the settlement of the parties' common property,
the trial court acted neither imprudently nor
precipitately; a court which has jurisdiction to
declare the marriage a nullity must be deemed
likewise clothed with authority to resolve incidental
and consequential matters. Nor did it commit a
reversible error in ruling that petitioner and private
respondent own the "family home" and all their
common property in equal shares, as well as in
concluding that, in the liquidation and partition of
the property owned in common by them, the
provisions on co-ownership under the Civil Code,
not Articles 50, 51 and 52, in relation to Articles 102
and 129, 12 12a of the Family Code, should aptly
prevail. The rules set up to govern the liquidation of
either the absolute community or the conjugal
partnership of gains, the property regimes
recognized for valid and voidable marriages (in the
latter case until the contract is annulled), are
irrelevant to the liquidation of the co-ownership that
exists between common-law spouses. The first
paragraph of Article 50 of the Family Code,
applying paragraphs (2), (3), (4) and (5) of Article
43, 13 relates only, by its explicit terms, to voidable
marriages and, exceptionally, to void marriages
under Article 40 14 of the Code, i.e., the
declaration of nullity of a subsequent marriage
contracted by a spouse of a prior void marriage
before the latter is judicially declared void. The
latter is a special rule that somehow recognizes the
philosophy and an old doctrine that void marriages
are inexistent from the very beginning and no
judicial decree is necessary to establish their nullity.
In now requiring for purposes of remarriage, the
declaration of nullity by final judgment of the
previously contracted void marriage, the present
law aims to do away with any continuing
uncertainty on the status of the second marriage. It
is not then illogical for the provisions of Article 43, in
relation to Articles 41 15 and 42, 16 of the Family
Code, on the effects of the termination of a
subsequent marriage contracted during the
subsistence of a previous marriage to be made
applicable pro hac vice. In all other case, it is not to

be assumed that the law has also meant to have

coincident property relations, on the one hand,
between spouses in valid and voidable marriages
(before annulment) and, on the other, between
common-law spouses or spouses of void marriages,
leaving to ordain, in the latter case, the ordinary
rules on co-ownership subject to the provision of
Article 147 and Article 148 of the Family Code. It
must be stressed, nevertheless, even as it may
merely state the obvious, that the provisions of the
Family Code on the "family home," i.e., the
provisions found in Title V, Chapter 2, of the Family
Code, remain in force and effect regardless of the
property regime of the spouses.
WHEREFORE, the questioned orders, dated 05 May
1995 and 30 October 1995, of the trial court are
AFFIRMED. No costs.
SO ORDERED.
Padilla, Kapunan and Hermosisima, Jr., JJ ., concur.
Bellosillo, J ., is on leave.
EN BANC
[G.R. No. L-5930. February 17, 1954.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ABELO ARAGON, defendant-appellant.
Amadeo D. Seno for appellant.
Assistant Solicitor General Francisco Carreon and
Solicitor Ramon L. Avancea for appellee.
SYLLABUS
1.BIGAMY; NULLITY OF SECOND MARRIAGE, NO
DEFENSE IN THE BIGAMY CASE. A second
marriage contracted by a man while the first
marriage is not yet dissolved is illegal and void (Act
3613, section 29). Its nullity, however, is no defense
to a criminal action for bigamy filed against him.
2.ID.; CIVIL ACTION FOR ANNULMENT OF SECOND
MARRIAGE, NOT A DEFENSE IN THE BIGAMY CASE.
The filing, while the bigamy case is pending, of a
civil action by the woman in the second marriage
for its annulment by reason of force and
intimidation upon her by the man, is not a bar or
defense to the criminal action. The civil action does
not decide that he entered the marriage against
his will and consent, because the complaint therein
does not allege that he was the victim of force and
intimidation in the second marriage. It was he who
used the force or intimidation and he may not use
his own malfeasance to defeat the action based
on his criminal act.
3.CRIMINAL PROCEDURE; PREJUDICIAL QUESTION,
EXPLAINED. A decision in such civil action is not
essential before the criminal charge can be
determined. It is, therefore, not a prejudicial
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question. 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 (10 Enciclopedia
Juridica Espaola, p. 228). 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 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.
4.PLEADING AND PRACTICE; APPEALS; APPEALABLE
ORDERS OR JUDGMENTS; INTERLOCUTORY ORDERS,
NOT APPEALABLE. An order denying a motion to
dismiss is not a final judgment or order, and is
therefore not appealable (Rule 118, sections 1 and
2).
DECISION
LABRADOR, J p:
The defendant in the above-entitled case is
charged in the Court of First Instance of Cebu with
the crime of bigamy, for having contracted a
second marriage with one Efigenia C. Palomer on
September 21, 1947, while his previous valid
marriage with Martina Godinez was still subsisting
and had not been dissolved. The information is
dated May 22, 1951. On October 11, 1951, while the
case was pending trial, Efigenia C. Palomer filed a
civil action in the same Court of First Instance of
Cebu against the defendant-appellant, alleging
that the latter "by means of force, threats and
intimidation of bodily harm, forced plaintiff to marry
him", and praying that their marriage on September
21, 1947 be annulled (Annex A). Thereupon and on
April 30, 1952, defendant-appellant filed a motion in
the criminal case for bigamy, praying that the
criminal charge be provisionally dismissed, on the
ground that the civil action for annulment of the
second marriage is a prejudicial question. The court
denied this motion on the ground that the validity
of the second marriage may be determined in the
very criminal action for bigamy. Against this order
this appeal has been presented to this court.
It is contended that as the marriage between the
defendant- appellant and Efigenia C. Palomer is
merely a voidable marriage, and not an absolutely
void marriage, it can not be attacked in the
criminal action and, therefore, it may not be
considered therein; consequently, that the civil
action to annul the second marriage should first be
decided and the criminal action, dismissed. It is not

necessary to pass upon this question because we

believe that the order of denial must be sustained
on another ground.
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 (Cuestin prejudicial, es
la que surge en un pleito o causa, cuya resolucin
sea antecedente logico de la cuestin objeto del
pleito o causa y cuyo conocimiento corresponda a
los Tribunales de otro orden o jurisdiccin X
Enciclopedia Juridica Espaola, p. 228). 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 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.
There is no question that if the allegations of the
complaint on time the marriage contracted by
defendant-appellant with Efigenia C. Palomer is
illegal and void (Sec. 29, Act 3613 otherwise known
as the Marriage Law). Its nullity, however, is no
defense to the criminal action for bigamy filed
against him. The supposed use of force and
intimidation against the woman, Palomer, even if it
were true, is not a bar or defense to said action.
Palomer, were she the one charged with bigamy,
could perhaps raise said force or intimidation as a
defense, because she may not be considered as
having freely and voluntarily committed the act if
she was forced to the marriage by intimidation. But
not the other party, who used the force or
intimidation. The latter may not use his own
malfeasance to defeat the action based on his
criminal act.
It follows that the pendency of the civil action for
the annulment of the marriage filed by Efigenia C.
Palomer, is absolutely immaterial to the criminal
action filed against defendant-appellant. This civil
action does not decide that defendant-appellant
did not enter the marriage against his will and
consent, because the complaint does not allege
that he was the victim of force and intimidation in
the second marriage; it does not determine the
existence of any of the elements of the charge of
bigamy. A decision thereon is not essential to the
determination of the criminal charge. It is, therefore,
not a prejudicial question.
There is another reason for dismissing the appeal.
The order appealed from is one denying a motion
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to dismiss and is not a final judgment. It is, therefore,

not appealable (Rule 118, secs. 1 and 2).
The order appealed from is hereby affirmed, with
costs against defendant-appellant. So ordered.
Paras, C. J., Pablo, Bengzon, Padilla, Montemayor,
Reyes, Jugo and Bautista Angelo, JJ., concur.
THIRD DIVISION
[G.R. No. 137110. August 1, 2000.]
VINCENT PAUL G. MERCADO a.k.a. VINCENT G.
MERCADO, petitioner, vs. CONSUELO TAN,
respondent.
Tan Acut & Madrid for petitioner.
Julius C. Baldeo for respondent.
SYNOPSIS
On April 10, 1976, petitioner Dr. Vincent Paul G.
Mercado contracted his first marriage with Ma.
Thelma G. Oliva in Cebu City. On June 27, 1991, the
petitioner contracted his second marriage with
herein respondent Ma. Consuela Tan in Bacolod
City without his first marriage having been legally
dissolved. On October 5, 1992, herein respondent
filed a complaint for bigamy against the petitioner
before the City Prosecutor's Office in Bacolod City
which eventually resulted in the filing of an
information on March 1, 1993, before the Regional
Trial Court, Branch 22 of Cebu City. On the other
hand, on November 13, 1992, the petitioner
instituted an action for Declaration of Nullity of
Marriage against Ma. Thelma V. Oliva before the
Regional Trial Court, Branch 22, Cebu City. In a
Decision dated May 6, 1993, the marriage between
petitioner and Thelma Oliva was declared null and
void. After trial of the bigamy case, the Regional
Trial Court of Bacolod City convicted the petitioner
of the crime charged. On appeal, the Court of
Appeals affirmed the decision of the trial court. In
this petition, the petitioner questioned the presence
of previous legal marriage as element of the crime
of bigamy. EcIaTA
The Court ruled that petitioner contracted a
second marriage although there was yet no judicial
declaration of nullity of his first marriage. In fact, he
instituted the Petition to have the first marriage
declared void only after complainant had filed a
letter-complaint charging him with bigamy. By
contracting a second marriage while the first was
still subsisting, he committed the acts punishable
under Article 349 of the Revised Penal Code. That
he subsequently obtained a judicial declaration of
the nullity of the first marriage was immaterial. The
crime had already been consummated by then.
Moreover, his view effectively encourages delay in
the prosecution of bigamy cases; an accused
could simply file a petition to declare his previous

marriage void and invoke the pendency of that

action as a prejudicial question in the criminal case.
This cannot be allowed. Under the circumstances of
the present case, petitioner is guilty of the charge
against him.
Petition was DENIED.
SYLLABUS
1.CRIMINAL LAW; BIGAMY; ELEMENTS. The
elements of this crime are as follows: "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."
2.CIVIL LAW; FAMILY CODE; MARRIAGE; JUDICIAL
DECLARATION OF NULLITY OF PREVIOUS MARRIAGE
IS NECESSARY BEFORE A SECOND MARRIAGE CAN BE
CONTRACTED. The provision appeared in
substantially the same form under Article 83 of the
1950 Civil Code and Article 41 of the Family Code.
However, Article 40 of the Family Code, a new
provision, expressly requires a judicial declaration of
nullity of the previous marriage, as follows: "ART. 40.
The absolute nullity of a previous marriage may be
invoked for purposes of remarriage on the basis
solely of a final judgment declaring such marriage
void." . . . Thus, a Civil Law authority and member of
the Civil Code Revision Committee has observed:
"[Article 40] is also in line with the recent decisions of
the Supreme Court that the marriage of a person
may be null and void but there is need of judicial
declaration of such fact before that person can
marry again; otherwise, the second marriage will
also be void (Wiegel v. Sempio-Diy, Aug. 19/86, 143
SCRA 499, Vda. De Consuegra v. GSIS, 37 SCRA
315). This provision changes the old rule that where
a marriage is illegal and void from its performance,
no judicial decree is necessary to establish its
validity (People v. Mendoza, 95 Phil. 843; People v.
Aragon, 100 Phil. 1033).". . . Such declaration is now
necessary before one can contract a second
marriage. Absent that declaration, we hold that
one may be charged with and convicted of
bigamy.
3.ID.; ID.; ID.; ID.; CONSISTENT WITH THE
PRONOUNCEMENT IN TERRE VS. TERRE. The present
ruling is consistent with our pronouncement in Terre
v. Terre, which involved an administrative
Complaint against a lawyer for marrying twice. In
injecting the lawyer's argument that he was free to
enter into a second marriage because the first one
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was void ab initio, the Court ruled: "for purposes of

determining whether a person is legally free to
contract a second marriage, a judicial declaration
that the first marriage was null and void ab initio is
essential." The Court further noted that the said rule
was "cast into statutory form by Article 40 of the
Family Code." Significantly, it observed that the
second marriage, contracted without a judicial
declaration that the first marriage was void, was
"bigamous and criminal in character."
4.CRIMINAL LAW; BIGAMY; THAT THE FIRST MARRIAGE
IS VOID FROM THE BEGINNING IS NOT A VALID
DEFENSE WITHOUT A JUDICIAL DECLARATION.
Moreover, Justice Reyes, an authority in Criminal
Law whose earlier work was cited by petitioner,
changed his view on the subject in view of Article
40 of the Family Code and wrote in 1993 that a
person must first obtain a judicial declaration of the
nullity of a void marriage before contracting a
subsequent marriage: "It is now settled that the fact
that the first marriage is void from the beginning is
not a defense in a bigamy charge. 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 states that . . . . The Code Commission
believes that the parties to a marriage should be
allowed to assume that their marriage is void, even
if such is the fact, but must first secure a judicial
declaration of nullity of their marriage before they
should be allowed to marry again. . . . ."
5.ID.; ID.; ID.; APPLIED IN CASE AT BAR. In the
instant case, petitioner contracted a second
marriage although there was yet no judicial
declaration of nullity of his first marriage. In fact, he
instituted the Petition to have the first marriage
declared void only after complainant had filed a
letter-complaint charging him with bigamy. By
contracting a second marriage while the first was
still subsisting, he committed that acts punishable
under Article 349 of the Revised Penal Code.
6.ID.; ID.; ID.; JUDICIAL DECLARATION OF NULLITY OF
FIRST MARRIAGE DURING PENDENCY OF BIGAMY
CASE IS IMMATERIAL. That he subsequently
obtained a judicial declaration of the nullity of the
first marriage was immaterial. To repeat, the crime
had already been consummated by then.
Moreover, his view effectively encourages delay in
the prosecution of bigamy cases; an accused
could simply file a petition to declare his previous
marriage void and invoke the pendency of that
action as a prejudicial question in the criminal case.
We cannot allow that.

7.REMEDIAL LAW; APPEAL; APPELLEE COULD NOT

OBTAIN AFFIRMATIVE RELIEF FROM THE APPELLATE
COURT; CASE AT BAR. [R]espondent prays that
the Court set aside the ruling of the Court of
Appeals insofar as it denied her claim of damages
and attorney's fees. Her prayer has no merit. She
did not appeal the ruling of the CA against her;
hence, she cannot obtain affirmative relief from this
Court.
8.CIVIL LAW; DAMAGES; CANNOT BE CLAIMED BY
AN OFFENDED PARTY IN A BIGAMY CASE IF SHE WAS
FULLY CONSCIOUS OF THE CONSEQUENCES OF HER
ACT. In any event, we find no reason to reverse
or set aside the pertinent ruling of the CA on this
point, which we quote hereunder: "We are
convinced from the totality of the evidence
presented in this case that Consuelo Tan is not the
innocent victim that she claims to be; she was well
aware of the existence of the previous marriage
when she contracted matrimony with Dr. Mercado.
The testimonies of the defense witnesses prove this,
and we find no reason to doubt said testimonies. . .
. "Indeed, the claim of Consuelo Tan that she was
not aware of his previous marriage does not inspire
belief, especially as she had seen that Dr. Mercado
had two (2) children with him. We are convinced
that she took the plunge anyway, relying on the
fact that the first wife would no longer return to Dr.
Mercado, she being by then already living with
another man. "Consuelo Tan can therefore not
claim damages in this case where she was fully
conscious of the consequences of her act. She
should have known that she would suffer
humiliation in the event the truth [would] come out,
as it did in this case, ironically because of her
personal instigation. If there are indeed damages
caused to her reputation, they are of her own willful
making."
VITUG, J., concurring and dissenting opinion:
1.CIVIL LAW; FAMILY CODE; MARRIAGE; FOR
PURPOSES
OF
REMARRIAGE,
NO
JUDICIAL
DECLARATION OF NULLITY SHALL BE DEEMED
ESSENTIAL WHEN THE PREVIOUS MARRIAGE IS
BETWEEN PERSONS OF SAME SEX OR WHEN EITHER OR
BOTH PARTIES HAD NOT GIVEN CONSENT THERETO.
Article 40 of the Family Code reads: "ART. 40. 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." The phrase "for purposes of
remarriage" is not at all insignificant. Void
marriages, like void contracts, are inexistent from
the very beginning. It is only by way of exception
that the Family Code requires a judicial declaration
of nullity of the previous marriage before a
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subsequent marriage is contracted; without such

declaration, the validity and the full legal
consequence of the subsequent marriage would
itself be in similar jeopardy under Article 53, in
relation to Article 52, of the Family Code.
Parenthetically, I would daresay that the necessity
of a judicial declaration of nullity of a void marriage
for the purpose of remarriage should be held to
refer merely to cases where it can be said that a
marriage, at least ostensibly, had taken place. No
such judicial declaration of nullity, in my view,
should still be deemed essential when the
"marriage," for instance, is between persons of the
same sex or when either or both parties had not at
all given consent to the "marriage." Indeed, it is
likely that Article 40 of the Family Code has been
meant and intended to refer only to marriages
declared void under the provisions of Articles 35, 36,
37, 38 and 53 thereof.
2.CRIMINAL LAW; BIGAMY; "FORMER MARRIAGE"
CONTEMPLATES AN EXISTING, NOT VOID, PRIOR
MARRIAGE. In fine, the Family Code, I respectfully
submit, did not have the effect of overturning the
rule in criminal law and related jurisprudence. The
Revised Penal Code expresses: "Art. 349. Bigamy.
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. Surely, the foregoing provision
contemplated an existing, not void, prior marriage.
Covered by Article 349 would thus be, for instance,
a voidable marriage, it obviously being valid and
subsisting until set aside by a competent court.
TcIHDa
3.ID.; ID.; ID.; HAD JUDICIAL DECLARATION OF
NULLITY OF AB INITIO VOID MARRIAGE BEEN WITHIN
THE CONTEMPLATION OF THE LEGISLATURE, AN
EXPRESS PROVISION TO THAT EFFECT SHOULD HAVE
BEEN INSERTED IN THE LAW. As early as People vs.
Aragon, this Court has underscored: ". . . Our
Revised Penal Code is of recent enactment and
had the rule enunciated in Spain and in America
requiring judicial declaration of nullity of ab initio
void marriages been within the contemplation of
the legislature, an express provision to that effect
would or should have been inserted in the law. In its
absence, we are bound by said rule of strict
interpretation." Unlike a voidable marriage which
legally exists until judicially annulled (and therefore
not a defense is bigamy if the second marriage
were contracted prior to the decree of annulment),
the complete nullity, however, of a previously

contracted marriage, being a total nullity and

inexistent,
should
be
capable
of
being
independently raised by way of a defense in a
criminal case for bigamy. I see no incongruence
between this rule in criminal law and that of the
Family Code, and each may be applied within the
respective spheres of governance.
DECISION
PANGANIBAN, J p:
A judicial declaration of nullity of a previous
marriage is necessary before a subsequent one
can be legally contracted. One who enters into a
subsequent marriage without first obtaining such
judicial declaration is guilty of bigamy. This principle
applies even if the earlier union is characterized by
statute as "void."
The Case
Before us is a Petition for Review on Certiorari
assailing the July 14, 1998 Decision of the Court of
Appeals (CA) 1 in CA-GR CR No. 19830 and its
January 4, 1999 Resolution denying reconsideration.
The assailed Decision affirmed the ruling of the
Regional Trial Court (RTC) of Bacolod City in
Criminal Case No. 13848, which convicted herein
petitioner of bigamy as follows:
"WHEREFORE, finding the guilt of accused Dr.
Vincent Paul G. Mercado a.k.a. Dr. Vincent G.
Mercado of the crime of Bigamy punishable under
Article 349 of the Revised Penal Code to have been
proven beyond reasonable doubt, [the court
hereby renders] judgment imposing upon him a
prison term of three (3) years, four (4) months and
fifteen (15) days of prision correccional, as minimum
of his indeterminate sentence, to eight (8) years
and twenty-one (21) days of prision mayor, as
maximum, plus accessory penalties provided by
law.
Cost against accused." 2
The Facts
The facts are quoted by Court of Appeals (CA)
from the trial court's judgment, as follows:
"From the evidence adduced by the parties, there
is no dispute that accused Dr. Vincent Mercado
and complainant Ma. Consuelo Tan got married on
June 27, 1991 before MTCC-Bacolod City Br. 7
Judge Gorgonio J. Ibaez [by reason of] which a
Marriage Contract was duly executed and signed
by the parties, As entered in said document, the
status of accused was 'single.' There is no dispute
either that at the time of the celebration of the
wedding with complainant, accused was actually
a married man, having been in lawful wedlock with
Ma. Thelma Oliva in a marriage ceremony
solemnized on April 10, 1976 by Judge Leonardo B.
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Caares, CFI-Br. XIV, Cebu City per Marriage

Certificate issued in connection therewith, which
matrimony was further blessed by Rev. Father Arthur
Baur on October 10, 1976 in religious rites at the
Sacred Heart Church, Cebu City. In the same
manner, the civil marriage between accused and
complainant was confirmed in a church ceremony
on June 29, 1991 officiated by Msgr. Victorino A.
Rivas, Judicial Vicar, Diocese of Bacolod City. Both
marriages were consummated when out of the first
consortium, Ma. Thelma Oliva bore accused two
children, while a child, Vincent Paul, Jr. was sired by
accused with complainant Ma. Consuelo Tan.
"On October 5, 1992, a letter-complaint for bigamy
was filed by complainant through counsel with the
City Prosecutor of Bacolod City, which eventually
resulted [in] the institution of the present case
before this Court against said accused, Dr. Vincent
G. Mercado, on March 1, 1993 in an Information
dated January 22, 1993.
"On November 13, 1992, or more than a month after
the bigamy case was lodged in the Prosecutor's
Office, accused filed an action for Declaration of
Nullity of Marriage against Ma. Thelma V. Oliva in
RTC-Br. 22, Cebu City, and in a Decision dated May
6, 1993 the marriage between Vincent G. Mercado
and Ma. Thelma V. Oliva was declared null and
void.
"Accused is charged with bigamy under Article 349
of the Revised Penal Code for having contracted a
second marriage with herein complainant Ma.
Consuelo Tan on June 27, 1991 when at that time
he was previously united in lawful marriage with Ma.
Thelma V. Oliva on April 10, 1976 at Cebu City,
without said first marriage having been legally
dissolved. As shown by the evidence and admitted
by accused, all the essential elements of the crime
are present, namely: (1) that the offender has been
previously legally married; (2) that the first marriage
has not been legally dissolved or in case the spouse
is absent, the absent spouse could not yet be
presumed dead according to the Civil Code; (3)
that he contract[ed] a second or subsequent
marriage; and (4) that the second or subsequent
marriage ha[d] all the essential requisites for validity.
...
"While acknowledging the existence of the two
marriage[s], accused posited the defense that his
previous marriage ha[d] been judicially declared
null and void and that the private complainant had
knowledge of the first marriage of accused.

"It is an admitted fact that when the second

marriage was entered into with Ma. Consuelo Tan
on June 27, 1991, accused's prior marriage with Ma.
Thelma V. Oliva was subsisting, no judicial action
having yet been initiated or any judicial declaration
obtained as to the nullity of such prior marriage with
Ma. Thelma V. Oliva. Since no declaration of the
nullity of his first marriage ha[d] yet been made at
the time of his second marriage, it is clear that
accused was a married man when he contracted
such second marriage with complainant on June
27, 1991. He was still at the time validly married to
his first wife." 3

Petitioner was convicted of bigamy under Article

349 of the Revised Penal Code, which 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."
The elements of this crime are as follows:
"1.That the offender has been legally married;

Ruling of the Court of Appeals

Agreeing with the lower court, the Court of Appeals
stated:
"Under Article 40 of the Family Code, '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.'
But here, the final judgment declaring null and void
accused's previous marriage came not before the
celebration of the second marriage, but after,
when the case for bigamy against accused was
already tried in court. And what constitutes the
crime of bigamy is the act of any person who shall,
contract a second subsequent marriage 'before'
the former marriage has been legally dissolved." 4
Hence, this Petition. 5
The Issues
In his Memorandum, petitioner raises the following
issues:
"A
Whether or not the element of previous legal
marriage is present in order to convict petitioner.
"B
Whether or not a liberal interpretation in favor of
petitioner of Article 349 of the Revised Penal Code
punishing bigamy, in relation to Articles 36 and 40 of
the Family Code, negates the guilt of petitioner.
"C
Whether or not petitioner is entitled to an acquittal
on the basis of reasonable doubt." 6
The Court's Ruling
The Petition is not meritorious.
Main Issue:
Effect of Nullity of Previous Marriage
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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." 7
When the Information was filed on January 22, 1993,
all the elements of bigamy were present. It is
undisputed that petitioner married Thelma G. Oliva
on April 10, 1976 in Cebu City. While that marriage
was still subsisting, he contracted a second
marriage, this time with Respondent Ma. Consuelo
Tan who subsequently filed the Complaint for
bigamy.
Petitioner contends, however, that he obtained a
judicial declaration of nullity of his first marriage
under Article 36 of the Family Code, thereby
rendering it void ab initio. Unlike voidable marriages
which are considered valid until set aside by a
competent court, he argues that a void marriage is
deemed never to have taken place at all. 8 Thus,
he concludes that there is no first marriage to speak
of. Petitioner also quotes the commentaries 9 of
former Justice Luis Reyes that "it is now settled that if
the first marriage is void from the beginning, it is a
defense in a bigamy charge. But if the first marriage
is voidable, it is not a defense."
Respondent, on the other hand, admits that the first
marriage was declared null and void under Article
36 of the Family Code, but she points out that that
declaration came only after the Information had
been filed. Hence, by then, the crime had already
been consummated. She argues that a judicial
declaration of nullity of a void previous marriage

must be obtained before a person can marry for a

subsequent time.
We agree with the respondent.
To be sure, jurisprudence regarding the need for a
judicial declaration of nullity of the previous
marriage has been characterized as "conflicting."
10 In People vs. Mendoza, 11 a bigamy case
involving an accused who married three times, the
Court ruled that there was no need for such
declaration. In that case, the accused contracted
a second marriage during the subsistence of the
first. When the first wife died, he married for the third
time. The second wife then charged him with
bigamy. Acquitting him, the Court held that the
second marriage was void ab initio because it had
been contracted while the first marriage was still in
effect. Since the second marriage was obviously
void and illegal, the Court ruled that there was no
need for a judicial declaration of its nullity. Hence,
the accused did not commit bigamy when he
married for the third time. This ruling was affirmed by
the Court in People vs. Aragon, 12 which involved
substantially the same facts.
But in subsequent cases, the Court impressed the
need for a judicial declaration of nullity. In Vda. de
Consuegra v. GSIS, 13 Jose Consuegra married for
the second time while the first marriage was still
subsisting. Upon his death, the Court awarded one
half of the proceeds of his retirement benefits to the
first wife and the other half to the second wife and
her children, notwithstanding the manifest nullity of
the second marriage. It held: "And with respect to
the right of the second wife, this Court observes that
although the second marriage can be presumed to
be void ab initio as it was celebrated while the first
marriage was still subsisting, still there is need for
judicial declaration of such nullity."
In Tolentino v. Paras, 14 however, the Court again
held that judicial declaration of nullity of a void
marriage was not necessary. In that case, a man
married twice. In his Death Certificate, his second
wife was named as his surviving spouse. The first wife
then filed a Petition to correct the said entry in the
Death Certificate. The Court ruled in favor of the
first wife, holding that "the second marriage that he
contracted with private respondent during the
lifetime of the first spouse is null and void from the
beginning and of no force and effect. No judicial
decree is necessary to establish the invalidity of a
void marriage."
In Wiegel v. Sempio-Diy, 15 the Court stressed the
need for such declaration. In that case, Karl Heinz
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Wiegel filed an action for the declaration of nullity

of his marriage to Lilia Olivia Wiegel on the ground
that the latter had a prior existing marriage. After
pretrial, Lilia asked that she be allowed to present
evidence to prove, among others, that her first
husband had previously been married to another
woman. In holding that there was no need for such
evidence, the Court ruled: ". . . There is likewise no
need of introducing evidence about the existing
prior marriage of her first husband at the time they
married each other, for then such a marriage
though void still needs, according to this Court, a
judicial declaration of such fact and for all legal
intents and purposes she would still be regarded as
a married woman at the time she contracted her
marriage with respondent Karl Heinz Wiegel; . . . ."
Subsequently, in Yap v. CA, 16 the Court reverted to
the ruling in People v. Mendoza, holding that there
was no need for such declaration of nullity.
In Domingo v. CA, 17 the issue raised was whether a
judicial declaration of nullity was still necessary for
the recovery and the separation of properties of
erstwhile spouses. Ruling in the affirmative, the
Court declared: "The Family Code has 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; in fact, the
requirement for a declaration of absolute nullity of
a marriage is also for the protection of the spouse
who, believing that his or her marriage is illegal and
void, marries again. With the judicial declaration of
the nullity of his or her first marriage, the person who
marries again cannot be charged with bigamy." 18
Unlike Mendoza and Aragon, Domingo as well as
the other cases herein cited was not a criminal
prosecution for bigamy. Nonetheless, Domingo
underscored the need for a judicial declaration of
nullity of a void marriage on the basis of a new
provision of the Family Code, which came into
effect several years after the promulgation of
Mendoza and Aragon.
In Mendoza and Aragon, the Court relied on
Section 29 of Act No. 3613 (Marriage Law), which
provided:
"Illegal marriages. Any marriage subsequently
contracted by any person during the lifetime of the
first spouse shall be illegal and void from its
performance, unless:
(a)The first marriage was annulled or dissolved;

(b)The first spouse had been absent for seven

consecutive years at the time of the second
marriage without the spouse present having news
of the absentee being alive, or the absentee being
generally considered as dead and believed to be
so by the spouse present at the time of contracting
such subsequent marriage, the marriage as
contracted being valid in either case until declared
null and void by a competent court."
The Court held in those two cases that the said
provision "plainly makes a subsequent marriage
contracted by any person during the lifetime of his
first spouse illegal and void from its performance,
and no judicial decree is necessary to establish its
invalidity, as distinguished from mere annullable
marriages." 19
The provision appeared in substantially the same
form under Article 83 of the 1950 Civil Code and
Article 41 of the Family Code. However, Article 40 of
the Family Code, a new provision, expressly requires
a judicial declaration of nullity of the previous
marriage, as follows:
"ARTICLE 40.The absolute nullity of a previous
marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment
declaring such marriage void."
In view of this provision, Domingo stressed that a
final judgment declaring such marriage void was
necessary. Verily, the Family Code and Domingo
affirm the earlier ruling in Wiegel. Thus, a Civil Law
authority and member of the Civil Code Revision
Committee has observed:
"[Article 40] is also in line with the recent decisions of
the Supreme Court that the marriage of a person
may be null and void but there is need of a judicial
declaration of such fact before that person can
marry again; otherwise, the second marriage will
also be void (Wiegel v. Sempio-Diy, Aug. 19/86, 143
SCRA 499; Vda. De Consuegra v. GSIS, 37 SCRA
315). This provision changes the old rule that where
a marriage is illegal and void from its performance,
no judicial decree is necessary to establish its
validity (People v. Mendoza, 95 Phil. 843; People v.
Aragon, 100 Phil. 1033)." 20
In this light, the statutory mooring of the ruling in
Mendoza and Aragon that there is no need for a
judicial declaration of nullity of a void marriage
has been cast aside by Article 40 of the Family
Code. Such declaration is now necessary before
one can contract a second marriage. Absent that
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declaration, we hold that one may be charged

with and convicted of bigamy.
The present ruling is consistent with our
pronouncement in Terre v. Terre, 21 which involved
an administrative Complaint against a lawyer for
marrying twice. In rejecting the lawyer's argument
that he was free to enter into a second marriage
because the first one was void ab initio, the Court
ruled: "for purposes of determining whether a
person is legally free to contract a second
marriage, a judicial declaration that the first
marriage was null and void ab initio is essential." The
Court further noted that the said rule was "cast into
statutory form by Article 40 of the Family Code."
Significantly, it observed that the second marriage,
contracted without a judicial declaration that the
first marriage was void, was "bigamous and criminal
in character."
Moreover, Justice Reyes, an authority in Criminal
Law whose earlier work was cited by petitioner,
changed his view on the subject in view of Article
40 of the Family Code and wrote in 1993 that a
person must first obtain a judicial declaration of the
nullity of a void marriage before contracting a
subsequent marriage: 22
"It is now settled that the fact that the first marriage
is void from the beginning is not a defense in a
bigamy charge. 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 states that . . . . The
Code Commission believes that the parties to a
marriage should not be allowed to assume that
their marriage is void, even if such is the fact, but
must first secure a judicial declaration of nullity of
their marriage before they should be allowed to
marry again. . . . ."
In the instant case, petitioner contracted a second
marriage although there was yet no judicial
declaration of nullity of his first marriage. In fact, he
instituted the Petition to have the first marriage
declared void only after complainant had filed a
letter-complaint charging him with bigamy. By
contracting a second marriage while the first was
still subsisting, he committed the acts punishable
under Article 349 of the Revised Penal Code.
That he subsequently obtained a judicial
declaration of the nullity of the first marriage was
immaterial. To repeat, the crime had already been
consummated by then. Moreover, his view
effectively encourages delay in the prosecution of
bigamy cases; an accused could simply file a

petition to declare his previous marriage void and

invoke the pendency of that action as a prejudicial
question in the criminal case. We cannot allow that.
Under the circumstances of the present case, he is
guilty of the charge against him.
Damages
In her Memorandum, respondent prays that the
Court set aside the ruling of the Court of Appeals
insofar as it denied her claim of damages and
attorney's fees. 23
Her prayer has no merit. She did not appeal the
ruling of the CA against her; hence, she cannot
obtain affirmative relief from this Court. 24 In any
event, we find no reason to reverse or set aside the
pertinent ruling of the CA on this point, which we
quote hereunder:

Separate Opinions
VITUG, J., concurring and dissenting:
At the pith of the controversy is the defense of the
absolute nullity of a previous marriage in an
indictment for bigamy. The majority opinion,
penned by my esteemed brother, Mr. Justice
Artemio V. Panganiban, enunciates that it is only a
judicially decreed prior void marriage which can
constitute a defense against the criminal charge.
The civil law rule stated in Article 40 of the Family
Code is a given but I have strong reservations on its
application beyond what appears to be its
expressed context. The subject of the instant
petition is a criminal prosecution, not a civil case,
and the ponencia affirms the conviction of
petitioner Vincent Paul G. Mercado for bigamy.
Article 40 of the Family Code reads:

"We are convinced from the totality of the

evidence presented in this case that Consuelo Tan
is not the innocent victim that she claims to be; she
was well aware of the existence of the previous
marriage when she contracted matrimony with Dr.
Mercado. The testimonies of the defense witnesses
prove this, and we find no reason to doubt said
testimonies.
xxx xxx xxx
Indeed, the claim of Consuelo Tan that she was not
aware of his previous marriage does not inspire
belief, especially as she had seen that Dr. Mercado
had two (2) children with him. We are convinced
that she took the plunge anyway, relying on the
fact that the first wife would no longer return to Dr.
Mercado, she being by then already living with
another man.
Consuelo Tan can therefore not claim damages in
this case where she was fully conscious of the
consequences of her act. She should have known
that she would suffer humiliation in the event the
truth [would] come out, as it did in this case,
ironically because of her personal instigation. If
there are indeed damages caused to her
reputation, they are of her own willful making." 25
WHEREFORE, the Petition is DENIED and the assailed
Decision AFFIRMED. Costs against petitioner.
SO ORDERED.
Melo, Purisima and Gonzaga-Reyes, JJ.,concur.
Vitug, J., see concurring and dissenting opinion.
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"ARTICLE 40.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."
The phrase "for purposes of remarriage" is not at all
insignificant. Void marriages, like void contracts, are
inexistent from the very beginning. It is only by way
of exception that the Family Code requires a
judicial declaration of nullity of the previous
marriage before a subsequent marriage is
contracted; without such declaration, the validity
and the full legal consequence of the subsequent
marriage would itself be in similar jeopardy under
Article 53, in relation to Article 52, of the Family
Code. Parenthetically, I would daresay that the
necessity of a judicial declaration of nullity of a void
marriage for the purpose of remarriage should be
held to refer merely to cases where it can be said
that a marriage, at least ostensibly, had taken
place. No such judicial declaration of nullity, in my
view, should still be deemed essential when the
"marriage," for instance, is between persons of the
same sex or when either or both parties had not at
all given consent to the marriage." Indeed, it is likely
that Article 40 of the Family Code has been meant
and intended to refer only to marriages declared
void under the provisions of Articles 35, 36, 37, 38
and 53 thereof.
In fine, the Family Code, I respectfully submit, did
not have the effect of overturning the rule in
criminal law and related jurisprudence. The Revised
Penal Code expresses:

"ARTICLE 349.Bigamy. 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.
Surely, the foregoing provision contemplated an
existing, not void, prior marriage. Covered by Article
349 would thus be, for instance, a voidable
marriage, it obviously being valid and subsisting
until set aside by a competent court. As early as
People vs. Aragon, 1 this Court has underscored:
". . . Our Revised Penal Code is of recent enactment
and had the rule enunciated in Spain and in
America requiring judicial declaration of nullity of
ab initio void marriages been within the
contemplation of the legislature, an express
provision to that effect would or should have been
inserted in the law. In its absence, we are bound by
said rule of strict interpretation."
Unlike a voidable marriage which legally exists until
judicially annulled (and therefore not a defense in
bigamy if the second marriage were contracted
prior to the decree of annulment), the complete
nullity, however, of a previously contracted
marriage, being a total nullity and inexistent, should
be capable of being independently raised by way
of a defense in a criminal case for bigamy. I see no
incongruence between this rule in criminal law and
that of the Family Code, and each may be applied
within the respective spheres of governance.
Accordingly, I vote to grant the petition.

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