Summary
Prior to the 2004 case of Tenebro v. Court of Appeal, an accused who had contracted two marriages had available to him or her a two-pronged strategy to exculpate himself from criminal liability for bigamy. The first was an attack on the validity of the first or prior marriage. The second was an attack on the validity of the second or subsequent marriage. Tenebro effectively took away the second prong when it ruled that the nullity of the subsequent marriage was not a defense in bigamy. This note submits that notwithstanding the recent case of Pulido v. People (2021), the nullity of the second or subsequent marriage is still not a defense in bigamy.
The crime of bigamy
Bigamy is defined in Article 349 of the Revised Penal Code as the crime committed by a 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.” Otherwise put, a person is guilty of bigamy when he contracts a subsequent marriage while validly married to another.
Bigamy involves two marriages. A valid first or prior marriage, and a second or subsequent marriage, which is necessarily void for being bigamous.
Attack on the validity of the prior marriage as a defense in bigamy
An essential element of bigamy is that the prior marriage is a valid marriage. Hence, if his first marriage is void, a person contracting a second marriage is not liable for bigamy since legally speaking, there was no prior marriage to speak of.
Prior to the 2021 case of Pulido v. People and beginning with the case of Mercado v. Tan, 337 SCRA 122 (2000), the prevailing case law was that a person who contracts a second marriage without a prior court declaration of nullity of his first marriage was liable for bigamy even if the first marriage was subsequently declared void by a court. This holding was anchored on Article 40 of the Family Code, which provides that “[t]he 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 Court warned that “[p]ersons intending to contract a second marriage must first secure a judicial declaration of nullity of their first marriage. If they proceed with the second marriage without the judicial declaration, they are guilty of bigamy regardless of evidence of the nullity of the first marriage.” (Vitangcol v. People, 780 SCRA 598, 600 [2016]).
This holding was abandoned in the recent case of Pulido v. People, G.R. No. 220149, 27 July 2021. There, the SC en banc exonerated the accused from criminal liability for bigamy when during the pendency of the bigamy case, a judicial declaration of nullity of his first marriage was entered. The Court stated that for bigamy to arise, there must have been a prior valid marriage. That the judicial declaration of nullity was obtained after the accused had contracted the second marriage did not matter because a void marriage is inexistent from the very beginning. The Court held that the requirement of a prior judicial declaration of nullity under Article 40 of the Family Code, which is for purposes of remarriage, does not apply to a criminal case for bigamy.
“Attack on the validity” of the subsequent marriage as a defense in bigamy; requirement of the second marriage’s notional validity
Before Tenebro v. Court of Appeals, 423 SCRA 272 (2004), a defense available to the accused in bigamy was to show that the subsequent marriage was null or invalid for a reason other than the existence of a prior marriage. An “attack on the validity” of the subsequent marriage appears to be paradoxical since the offender’s second marriage is necessarily void for being bigamous, having been contracted while there was a prior valid marriage. However, jurisprudence held that an element of bigamy was that the second marriage would have been valid were it not for the existence of the first marriage. Otherwise put, the previous rule was that there was no bigamy if the second marriage was void or invalid for a reason other than that it was bigamous. I would term this nullity or invalidity as “hypernullity.”
The requirement of the subsequent marriage’s notional validity was first laid down in the 1935 case of People v. Dumpo, 62 Phil. 246. There the Court ruled that the accused could not be held liable for bigamy because his second marriage was void under Islamic law since the girl’s father did not give his consent. The Court held that “[i]t is an essential element of the crime of bigamy that the alleged second marriage, having all the essential requisites, would be valid were it not for the subsistence of the first marriage.”
In People v. Lara, 51 O.G. 4079 (14 February 1955), the Court, citing Dumpo, acquitted the accused of bigamy on the ground that his second marriage was void since the marriage license was issued only a day after the celebration of the marriage.
Defense of hypernullity rejected in Tenebro
In the 2004 case of Tenebro v. Court of Appeals, however, the Court en banc did not accept the defense of hypernullity of the second marriage invoked by the accused. There, Veronico married Hilda and then later Leticia. Charged with bigamy, Veronico raised as defense the subsequent judgment of the RTC nullifying his marriage to Leticia on the ground of psychological incapacity.
The Court brushed aside Veronico’s defense of hypernullity stating that “[s]ince a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy.” The Court stated that “there is no cogent reason for distinguishing between a subsequent marriage that is null and void purely because it is a second or subsequent marriage, and a subsequent marriage that is null and void on the ground of psychological incapacity, at least insofar as criminal liability for bigamy is concerned.”
In Santiago v. People, 763 SCRA 54 (2015), the accused in her defense invoked Lara and attacked the validity of the second marriage. She argued that the second marriage was void because no license was issued even though the parties had been cohabiting for less than five years. The Supreme Court, citing Tenebro, rejected the accused’s defense stating that the State’s penal laws on bigamy should not be rendered nugatory by allowing individuals “to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment.”
The question is whether the defense of hypernullity, rejected by the Court in Tenebro, was revived by Pulido? Offhand, it appears to be so since Pulido states in its summary that the accused may in his defense present testimonial or documentary evidence of the nullity of the first or the subsequent marriage.
My opinion however is that the binding force of Pulido should be limited to the defense of nullity of the first marriage. Insofar as the defense of the nullity or hypernullity of the subsequent marriage is concerned, the relevant statements in Pulido should be considered as merely obiter dicta. Hence, the doctrine in Tenebro, that the defense of the hypernullity of the subsequent marriage is not available in bigamy, is still the ruling case law. It should be noted that unlike in Pulido, the issue regarding the nullity of the second marriage was squarely presented in Tenebro.
Ratio decidendi and obiter dictum
Ratio decidendi is defined as the material facts of the case, plus the decision made in relation to those facts. (JAMES A. HOLLAND & JULIAN S. WEBB, LEARNING LEGAL RULES 150 [5th ed.]). Anything else said in the case that does not relate to the material facts is called obiter dictum. Obiter dicta are not binding on a later judge. (Id. 155). Only the ratio decidendi constitutes binding precedent. (DANTE B. GATMAYTAN, LEGAL METHOD ESSENTIALS 3.0, p. 263 [2016]).
The factual finding of the RTC and the Court of Appeals was that the second marriage of Pulido would have been valid were it not for his first marriage. In the courts below, Pulido had alleged that his second marriage was void for lack of a marriage ceremony. The Court of Appeals debunked his claim, stating that the marriage certificate signed by the parties clearly indicated that they appeared before a solemnizing officer on their own free will to take each other as husband and wife. This factual finding was no longer reviewed by the Supreme Court. In other words, the issue on the notional validity of Pulido’s second marriage was no longer before the Court. Hence, its pronouncements regarding the defense of the subsequent marriage’s nullity, being unrelated to the material facts of the case, are obiter dicta.
Defense of hypernullity not justified by the text of Article 349 of the Revised Penal Code
Even if we discount the doctrinal force of Tenebro, it is opined that Tenebro expresses a more persuasive view than that espoused in Dumpo.
Dumpo and the cases which followed it held that an element of bigamy is that the subsequent marriage would have been valid were it not for the existence of the prior marriage. As pointed out in Tenebro, this requirement is not found anywhere in the text of Article 349 of the Revised Penal Code which tersely provides that bigamy is committed by a 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.” In fact, Article 349 necessarily presupposes that the subsequent marriage is void for being bigamous. To allow the accused to attack the validity of the subsequent marriage as a defense is to allow him to go scot-free by flogging a dead horse.
It is of course different if the accused’s consent to the second marriage was obtained by duress or other vitiating cause. In such a case, there is no criminal intent on the part of the accused. If, however, the accused deliberately and freely contracts a second marriage, he thereby shows his contempt and disregard for the sanctity and institution of marriage and should be held liable, regardless of whether the second marriage is void for some other reason. (See Tenebro). This disregard or contempt is the gravamen of bigamy, not the notional validity of the subsequent marriage.
Meaning of “shall contract a marriage” in Article 349 of the Revised Penal Code
Bigamy is defined in Article 349 of the Revised Penal Code as the crime committed by a 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.” (Italics supplied). Does the phrase “shall contract a marriage” mean that the subsequent marriage contracted must be valid?
The answer is evidently no. In fact, Article 349 presupposes that the subsequent marriage is void for being bigamous. (Article 80[4], Civil Code; Article 35[4], Family Code). This meaning can also be gleaned from the succeeding Article 350 which also uses the phrase “shall contract marriage.” In Article 350, the marriage contracted may be void since the requirements of law were not met or the marriage contracted is in disregard of a legal impediment. It may thus be seen that the requirement of the notional validity of the subsequent marriage has no legal basis.
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