Family Art40 Cases

1 | F a m i l y C o d e A r t 4 0 c a s e s

SECOND DIVISION

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

LUCIO MORIGO y CACHO, petitioner, vs. PEOPLE OF

THE PHILIPPINES, respondent.

D E C I S I O N

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.

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.

SO ORDERED. 11

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

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.

B.


HOLDING THAT THE RULING IN PEOPLE VS. BITDU (58

PHIL. 817) IS APPLICABLE TO THE CASE AT BAR.

C.


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

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.

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.

D E C I S I O N

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

(1)that the first marriage was vitiated by force

exercised upon both her and the first husband; and

(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.

WHEREFORE, this petition is hereby DISMISSED, for

lack of merit, and the Orders complained of are

hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

Feria (Chairman), Fernan, Alampay and Gutierrez,

Jr., JJ., concur.

EN BANC

[A.C. No. 2349. July 3, 1992.]

DOROTHY B. TERRE, complainant, vs. ATTY. JORDAN

TERRE, respondent.

Public Attorney's Office for complainant.

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.

R E S O L U T I O N

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

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. 19-

20); 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

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

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 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." 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 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.

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.

D E C I S I O N

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

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.

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.

"The petitioner and respondent shall have visitation

rights over the children who are in the custody of

the other.

"(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

"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,

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

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).

D E C I S I O N

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

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

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

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.

D E C I S I O N

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.

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

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

cele

Documents

Family Art40 Cases