ABELLA AND PARTNERS LAW FIRM

RM.#1 GROUND FLR. CITY SUITES, F. RAMOS ST., CEBU CITY

CONTACT NUMBER: 09951234567
[email protected]

April 16, 2019

Miss Beru
#123 Sto. Niño Village
Banilad, Cebu City
Re: Defense in a Bigamy Case

Dear Miss Beru:

Good day! Thank you for the letter that you sent to our law firm,
in which you requested our legal advice regarding the bigamy case
that was filed against you by your husband. I am writing this letter to
you to inform you of your chances of acquittal or conviction in this
case.
To put a clear illustration of this case, the facts we know are
written below.
You got married with your husband, Owen, in 2012. In 2018,
Owen filed a bigamy case against you. You then denied the allegation
of your husband that you were previously married in the year 2010
with your ex-boyfriend, Lando. But thereafter you admitted that you
were once a party to a simulated marriage with Lando for the reason
to discourage a woman, who was impregnated by Lando, to pursue
him. You claimed that you were only convinced and influenced by
Lando to contract such simulated marriage and that you never
intended to be legally married with him. You supported your claim by
stating that there was no actual marriage ceremony and that you
actually never lived together in the same roof with him. Furthermore,
you said that you only knew recently that your simulated marriage
with Lando was actually registered in the Civil Registrar.
My answer to your question and the reasons for my answer are
set below.
Question) Can I set up as a defense the fact that the previous marriage
I contracted with Lando was a simulated marriage, therefore void ab initio and
that there could be no marriage to speak of, hence, I could not be guilty of
bigamy?

1
 Firstly, it is important to let you know the nature of the crime
that was charged against you. Let us define what bigamy is under our
Philippine laws. Bigamy is punished under Article 349 of the Revised
Penal Code which states that:
“[a] person can be criminally responsible for the crime of
bigamy if: the offender is legally married; the marriage has not been
nullified; or the absent spouse could not yet be presumed dead based
on the Civil Code. Bigamy takes place when a second marriage is
contracted and has met the essential requisites of a valid marriage.”
Meaning to say, the crime of bigamy is the act of contracting a
subsequent marriage when a previous marriage continues to exist
legally.
But before the court could actually declare that you indeed
committed the crime of bigamy, it is important for the court to decide
on the issue of validity of your previous marriage with Lando. It is
important to note that a valid previous marriage is one of the requisites
of bigamy.
In this case, the proceedings of the case on bigamy shall be
suspended until the court has declared the validity of your previous
marriage. In legal terms, this is what we call as a prejudicial question.
A prejudicial question exists when a civil action involves an issue
similar or intimately related to the issue in the criminal action and the
resolution of such issue determines whether or not the criminal action
may proceed.
To put in simpler terms, the criminal case on bigamy should be
suspended first because in order for a case of bigamy to exist, the court
must first proceed with a civil action to decide on the issue on the
validity of your marriage with Lando. If the court finds that your
marriage with Lando was void ab initio or void from the beginning,
then the court no longer needs to proceed with the bigamy case, as
there could be no two marriages that existed.
As your legal adviser, I am informing you that we may have a
long way to go before we could get a favorable decision by the court.
It may take years for the court to decide on this case.
However, I am confident enough to tell you that we have a
strong case here. Your marriage with Lando, as it is simulated, is void.
It fails to comply with the essential and some or all formal requisites
of marriage.
To make the matters clearer to you, the Family Code enumerates
the following as the essential and formal requisites of marriage:

2
 Article 2. No marriage shall be valid, unless these essential
requisites are present:
1. Legal capacity of the contracting parties who
must be male and a female; and
2. Consent freely given in the presence of the
solemnizing officer.
Article 3. The formal requisites are:
1. Authority of the solemnizing officer;
2. A valid marriage license except in the cases
provided for in Chapter2 of this Title; and
3. A marriage ceremony which takes place with the
appearance of the contracting parties before the
solemnizing officer and their personal declaration
that they take each other as husband and wife in
the presence of not less than two witnesses of legal
age.
Since you also stated from your narration of facts that you never
intended you be legally married with Lando, which means to say that
you never gave a freely-given consent to be married with him. Next
point is that you contracted the simulated marriage privately and it
was contracted without a marriage ceremony. From these facts, it is
clear that your marriage with Lando was undeniably invalid.
I am very confident to inform you that you will not be convicted
with the criminal case charged against you. To give you an assurance
of our confidence, the Supreme Court decided in the case of Cariño vs.
Cariño that the marriage between the parties was void ab initio
because the parties failed to secure a valid marriage license even
though there was a marriage contract. This case proves that absence of
any or all of the essential or formal requisites of marriage would render
such marriage as void, and therefore could be considered as non-
existent.
On the other side, I have to inform you that the other party might
raise a counterargument on this. The other party might assert the fact
that you knowingly contracted a simulated marriage, which is
fictitious, you might have the intention of defrauding Owen when you
contracted a marriage with him. I understand that it was not your
intention. However, the assertion of the other party can be supported
by a provision in our Family Code. Article 40 of the Family Code states
that:

3
 “[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 article emphasizes that even though that you knew that your
previous marriage with Lando was void, you should have obtained a
judicial declaration of nullity of previous marriage for you to be able
to contract a subsequent marriage. Such declaration was required by
the law in order to do away with any continuing uncertainty on the
status of the second marriage. This is considered to be a significant rule
of procedure which is also the only acceptable proof of nullity of a first
marriage for purposes of remarriage.
In simpler terms, the other party might assert that your inaction
in obtaining a judicial declaration of nullity of a previous marriage is
tantamount to you of assuming the risk of being prosecuted of the
crime of bigamy. But what the other party has failed to contemplate is
the peculiarity of this case. They seem to forget or maybe deny the fact
that you were just convinced by Lando to enter a simulated marriage
contract with him with the promise of not submitting the said marriage
contract to the Civil Registrar. It appears that you committed a mistake
of fact. A mistake of fact happens when a person believed some fact to
exist when in reality, it does not. You believed in the promise of Lando
that he will not register the simulated marriage contract, but then
unfortunately, the contrary happens. In fact, a mistake of fact would
render a contract voidable.
This would then lead us to another important point that we
could use as a defense, which is your intent. When you entered into
the simulated marriage contract, you never intended to be legally
married with Lando. Therefore, there was an absolute simulation of
contract. Under our laws in Obilgations and Contracts, an absolute
simulation of contract is considered to be void. Therefore, your
marriage with Lando is indeed void.
We would like to assure you even more that a person who was
in good faith when entering into a contract was never prosecuted or
convicted. Good faith by one has always been considered by the court
in making their decisions and this might even lead to you being
acquitted. It was clearly established that since you believed that the
simulated marriage was non-existent, you were in good faith when
you married Owen. Therefore, you never intended to defraud Owen.
It was never your intention to hurt Owen and to break your marriage.
It is a well-settled rule in our criminal law that for a person to be
criminally liable, intent is necessary. And basing from the facts of this
case, culpable intent is absent.

4
 In conclusion, we assure you that we have a big chance of
winning this case, thereby acquitting you with the crime of bigamy.
We assure you that we have researched applicable laws and
jurisprudence that would support our side. We promise you to do our
best in this case. We will make sure that the court’s decision will be
favorable to our side.
Thank you for your trust.

Respectfully yours,

Bea Vanessa S. Abella

Associate Partner