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C2013 | PERSONS AND FAMILY RELATIONS | PROF.

KATRINA LEGARDA | 32

422 SCRA Morigo is not guilty of bigamy even if he did not get a judicial declaration of nullity of the first marriage. First marriage was void ab initio due to lack of ceremony and solemnizing officer so it does not bear any legal effect. Tenebro vs. CA G.R. No. 150758 (February 18, 2004) [concurring opinion, Justice Vitug] REASONS: 1) Nullity of marriage on the ground of psychological incapacity does not retroact to the date of the celebration of the marriage (Phil penal laws are concerned) 2) Individual who contracts a second or subsequent marriage during the subsistence of a valid marriage is criminally liable for bigamy notwithstanding the declaration of the second marriage as void ab initio on the ground of psychological incapacity 3) April 10, 1990: petitioner Veronico Tenebro contracted marriage with private complainant Leticia Ancajas; wed by Judge Alfredo Perez of the City trial Court of Lapu Lapu city 4) Lived together without interruption until 1991 when Tenebro informed Ancajas that he had been previously married to a certain Hilda Villareyes on November 10, 1986 5) Petitioner left the conjugal wedding with Ancajas and cohabited with Villareyes 6) January 25, 1993: petitioner contracted another marriageNida villegas before Judge German Lee Jr. RTC Cebu City br 15 7) Ancajas heard of third marriageconfirmed with VillareyesVillareyes confirmed through letter that she was married with petitioner 8) Ancajas filed a complaint for bigamy against petitioner (Criminal Case: 013095-L) PETITIONERs CLAIMS 1) He cohabited with villareyes from 1984-1988 sired two children but denied valid marriage ceremony to solemnize marriage (said he only signed contract for his allotment as a seaman 2) Verified by brother if a marriage exist (Civil Register Manila)no record of said marriage DECISION OF TRIAL COURT: November 10, 1997 finding the accused guilty beyond reasonable doubt of the crime of bigamy under art 349 of the RPC. Sentencing him to 4 years and 2 months prison correccional as minimum to 8 years and day of prision mayor as maximum CA: Affirmed decision of the trial court and petition for reconsideration was denied Hence this instant petition: assigned errors: 1) When it affirmed decision of RTC despite non existence of the first marriage and insufficiency of evidence 2) Finding him guilty despite clear proof that marriage between the accused and private complainant had been declared null and void ab initio and without legal force and effect rd th DECISION OF SC: 3 and 4 requisites for crime of bigamy are presentaffirm the judgment of the CA; Petition for review is DENIED; assailed decision of CA convicting tenebro of the crime of bigamy and sentencing him to suffer the indeterminate penalty of four years and two months of prison correccional as minimum and 8 years and one day of prison mayor as maximum REASONS; 1) Art 349 elements of bigamy: a) Offender has been legally married b) First 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 CC c) That he contracts a second or subsequent marriage and d) That the second or subsequent marriage has all the essential requisites for validity x Denies existence of marriage and argues the declaration of the nullity of the second marriage on the ground of psychological incapacity (lacks essential requisites of validityretroacts to the date on which the second marriage was celebrated) x Hence argues that four elements of the crime of bigamy are absent and prays for acquittal But Court said I fails on two accounts: 1) Prosecution presented sufficient evidence, both documentary and oral to prove the existence of the first marriage (marriage contract Manila City solemnized November 10, 1986 before Rev. Julieto Torres, handwritten letter of Villareyes to Ancajas dated July 12, 1994) petitioner presented documents (certification issued by NSO Oct 7, 1995 and City Civil Registry of Manila Feb 3, 1997have no records of the said marriage) 2) Public documents applicable to all marriage contractSec 7 Rule 130 of the Rules of Courtoriginal public document is admissible evidence 3) Documents presented by Tenebro only said office have no record of such marriage absence of a record is different from documentary evidence as to absence of a marriage ceremonydocuments (certifications) given after marriage with second wife)

C2013 | PERSONS AND FAMILY RELATIONS | PROF. KATRINA LEGARDA | 33

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On the issue of nullity due to psychological incapacity: retroacts?= so since marriage with Ancajas was void ab initio bigamy was therefore not committed==== aS second or subsequent marriage contracted during the subsistence of first marriage, petitioners marriage with Ancajas would be null and void from the very beginning completely regardless of the petitioners psychological incapacity or capacitybut this does not however presents an argument for the avoidance of criminal liability Art 349 of the RPC criminalizes any person who shall contract a second or subsequent marriage before the former marriage has been dissolved legally or before the absent spouse has been declared presumptively dead by means of a judgment rendered in proper proceedings As soon as the 2nd marriage was contracted April 10, 1990the crime of bigamy had already been consummated The declaration of the nullity of a second marriage on the ground of psychological incapacity is NOT an indicator that petitioners marriage to Ancajas lacks the essential requisites for validityrequisites are essential and formal requisitesin this case requisites of marriage were satisfied by petitioner and ANcajas Third marriage contracted while two past marriages are still subsistingdeliberate disregard for sanctity of marriage

declaration as being void, constitute a valid defense in a criminal action for bigamy? x Yes. Except for a void marriage on account of psychological incapacityvoid marriages are inexistent from the very beginning, and no judicial decree is required to establish their nullity x The complete nullity of a previously contracted marriage being void ab initio and legally inexistent can outrightly be a defense in an indictment for bigamy x Strong reservation on the ruling that bigamy is still committed though marriage is ab initio null and void (if marriage is contracted before th judicial declaration of its nullity) x Canon law-reconcile grounds for nullity of marriage x Reasons why except those due to psychological incapacity: a) Breaches neither the essential nor the formal requisites of marriage b) Other grounds are capable of relatively easy demonstration, psychological incapacity however, being a mental state may not be so readily evident c) It remains valid and binding until declared judicially as void DISSENTING OPINION CARPIO, J. CALLEJO, Sr. J. x Vote to grant pro hac vice the petition Since second marriage is null and void ab initio, such marriage in in contemplation of criminal law never existed and for that reason, one of the essential elements of bigamy has disappeared

SEPARATE OPINION VITUG, J. x Would the absolute nullity of either first or second marriage prior to its judicial

Mallion vs Alcantara (supra) FC 41 in relation to FC 42-44 NCC 390-39 1, PC 55 (9), FC 101 Republic vs. Nolasco 220 SCRA 20, March 17, 1993 Nolasco cannot declare that his English wife was presumptively dead as he did not diligently look for her in Liverpool. Bienvenido vs. Court of Appeals 237 SCRA 676 (October 24, 1994) Facts: o Deceased Aurelio Camacho married Luisita Camacho while still married to Consejo Velasco. He then had another relationship with Nenita Bienvenido with whom he bought a house on Delgado St where they have been leaving for the past 14 years Upon death of Aurelio Camacho, Luisita is contending that house belongs to her since it is conjugal property. ISSUE: WON Luisita has rights to property HELD: NO o Art 83 of Civil Code provides that if person has been absent for seven o