Effect of Annulment in a Criminal Case for Bigamy

There are persistent questions on the effect of a petition for annulment or a declaration of nullity of marriage on a criminal case for bigamy. Perhaps it’s time to have a discussion on this subject matter.

In a case for bigamy, the following matters or “elements” must be shown by the prosecution:

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; and
4. That the second or subsequent marriage has all the essential requisites for validity.

There are two scenarios: (1) it is argued that the first marriage is null and void or is a nullity; or (2) that the second marriage is null and void. Let’s discuss each scenario.

1. The first marriage is allegedly null and void.

In the case of Mercado vs. Tan (G.R. No. 137110, 1 August 2000), the accused argued that he already obtained a judicial declaration of nullity of his first marriage under Article 36 of the Family Code, thereby rendering it void ab initio. He argues that a void marriage is deemed never to have taken place at all and, hence, there is no first marriage to speak of. The accused also quoted the commentaries of former Justice Luis Reyes that “it is now settled that if the first marriage is void from the beginning, it is a defense in a bigamy charge. But if the first marriage is voidable, it is not a defense.”

The Supreme Court, in dismissing the argument of the accused, stated:

In the instant case, petitioner contracted a second marriage although there was yet no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to have the first marriage declared void only after complainant had filed a letter-complaint charging him with bigamy. By contracting a second marriage while the first was still subsisting, he committed the acts punishable under Article 349 of the Revised Penal Code.

That he subsequently obtained a judicial declaration of the nullity of the first marriage was immaterial. To repeat, the crime had already been consummated by then. Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an accused could simply file a petition to declare his previous marriage void and invoke the pendency of that action as a prejudicial question in the criminal case. We cannot allow that.

2. The second marriage is allegedly null and void.

The effect of the judicial declaration of the nullity of a second or subsequent marriage (on the ground of psychological incapacity) on an individual’s criminal liability for bigamy is a novel issue, well, until 2004 when the Supreme Court decided Tenebro vs. Court of Appeals (G.R. No. 150758, 18 February 18, 2004).

In that case, the accused argued that the declaration of the nullity of the second marriage, which is an alleged indicator that the second marriage lacks the essential requisites for validity, retroacts to the date on which the second marriage was celebrated. The accused then concluded that since the third and fourth “elements” of bigamy are not present, he should be acquitted.

The Supreme Court, however, decided against the accused and dismissed his arguments, stating that:

Petitioner makes much of the judicial declaration of the nullity of the second marriage on the ground of psychological incapacity, invoking Article 36 of the Family Code. What petitioner fails to realize is that a declaration of the nullity of the second marriage on the ground of psychological incapacity is of absolutely no moment insofar as the State’s penal laws are concerned.

As a second or subsequent marriage contracted during the subsistence of petitioner’s valid marriage to Villareyes, petitioner’s marriage to Ancajas would be null and void ab initio completely regardless of petitioner’s psychological capacity or incapacity. Since a marriage contracted during the subsistence of a valid marriage is automatically void, the nullity of this second marriage is not per se an argument for the avoidance of criminal liability for bigamy. Pertinently, Article 349 of the Revised Penal Code criminalizes “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”. A plain reading of the law, therefore, would indicate that the provision penalizes the mere act of contracting a second or a subsequent marriage during the subsistence of a valid marriage.

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned, it is significant to note that said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate.[28] There is therefore a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. To hold otherwise would render the State’s penal laws on bigamy completely nugatory, and allow individuals to deliberately ensure that each marital contract be flawed in some manner, and to thus escape the consequences of contracting multiple marriages, while beguiling throngs of hapless women with the promise of futurity and commitment.

The Supreme Court affirmed the following penalty:

Under Article 349 of the Revised Penal Code, as amended, the penalty for the crime of bigamy is prision mayor, which has a duration of six (6) years and one (1) day to twelve (12) years. There being neither aggravating nor mitigating circumstance, the same shall be imposed in its medium period. Applying the Indeterminate Sentence Law, petitioner shall be entitled to a minimum term, to be taken from the penalty next lower in degree, i.e., prision correccional which has a duration of six (6) months and one (1) day to six (6) years. Hence, the Court of Appeals correctly affirmed the decision of the trial court which sentenced petitioner to suffer an indeterminate penalty of four (4) years and two (2) months of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum.

It is important to note that there are vigorous dissents (contrary opinions) from other justices in Tenebro. The concurring opinion of Justice Vitug is also worth reading.


It must be emphasized that due to the apparently conflicting decisions on these issues, each case must be examined separately. For instance, in Ty vs. Court of Appeals (not a criminal case, though), the Supreme Court noted that the bigamous marriage in the above-mentioned case of Mercado vs. Tan was contracted during the effectivity of the Family Code – not the Civil Code. According to the Supreme Court in Ty:

As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil Code contains no express provision to that effect. Jurisprudence on the matter, however, appears to be conflicting.

Originally, in People v. Mendoza, and People v. Aragon, this Court held that no judicial decree is necessary to establish the nullity of a void marriage. Both cases involved the same factual milieu. Accused contracted a second marriage during the subsistence of his first marriage. After the death of his first wife, accused contracted a third marriage during the subsistence of the second marriage. The second wife initiated a complaint for bigamy. The Court acquitted accused on the ground that the second marriage is void, having been contracted during the existence of the first marriage. There is no need for a judicial declaration that said second marriage is void. Since the second marriage is void, and the first one terminated by the death of his wife, there are no two subsisting valid marriages. Hence, there can be no bigamy. Justice Alex Reyes dissented in both cases, saying that it is not for the spouses but the court to judge whether a marriage is void or not.

In Gomez v. Lipana, and Consuegra v. Consuegra, however, we recognized the right of the second wife who entered into the marriage in good faith, to share in their acquired estate and in proceeds of the retirement insurance of the husband. The Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there was a need for judicial declaration of such nullity (of the second marriage). And since the death of the husband supervened before such declaration, we upheld the right of the second wife to share in the estate they acquired, on grounds of justice and equity.

But in Odayat v. Amante (1977), the Court adverted to Aragon and Mendoza as precedents. We exonerated a clerk of court of the charge of immorality on the ground that his marriage to Filomena Abella in October of 1948 was void, since she was already previously married to one Eliseo Portales in February of the same year. The Court held that no judicial decree is necessary to establish the invalidity of void marriages. This ruling was affirmed in Tolentino v. Paras.

Yet again in Wiegel v. Sempio-Diy (1986), the Court held that there is a need for a judicial declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in 1972. In 1978, she married another man, Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations Court to declare his marriage to Lilia as void on the ground of her previous valid marriage. The Court, expressly relying on Consuegra, concluded that:

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 (citing Consuegra) 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. (Emphasis supplied).

In Yap v. Court of Appeals, however, the Court found the second marriage void without need of judicial declaration, thus reverting to the Odayat, Mendoza and Aragon rulings.

At any rate, the confusion under the Civil Code was put to rest under the Family Code. Our rulings in Gomez, Consuegra, and Wiegel were eventually embodied in Article 40 of the Family Code. Article 40 of said Code expressly required a judicial declaration of nullity of marriage.“

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.

In Terre v. Terre (1992) the Court, applying Gomez, Consuegra and Wiegel, categorically stated that a judicial declaration of nullity of a void marriage is necessary. Thus, we disbarred a lawyer for contracting a bigamous marriage during the subsistence of his first marriage. He claimed that his first marriage in 1977 was void since his first wife was already married in 1968. We held that Atty. Terre should have known that the prevailing case law is 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.”

The Court applied this ruling in subsequent cases. In Domingo v. Court of Appeals (1993), the Court held:

Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A declaration of absolute nullity of marriage is now explicitly required either as a cause of action or a ground for defense. (Art. 39 of the Family Code). Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99, 147, 148).

However, a recent case applied the old rule because of the peculiar circumstances of the case. In Apiag v. Cantero, (1997) the first wife charged a municipal trial judge of immorality for entering into a second marriage. The judge claimed that his first marriage was void since he was merely forced into marrying his first wife whom he got pregnant. On the issue of nullity of the first marriage, we applied Odayat, Mendoza and Aragon. We held that since the second marriage took place and all the children thereunder were born before the promulgation of Wiegel and the effectivity of the Family Code, there is no need for a judicial declaration of nullity of the first marriage pursuant to prevailing jurisprudence at that time.

Similarly, in the present case, the second marriage of private respondent was entered into in 1979, before Wiegel. At that time, the prevailing rule was found in Odayat, Mendoza and Aragon. The first marriage of private respondent being void for lack of license and consent, there was no need for judicial declaration of its nullity before he could contract a second marriage. In this case, therefore, we conclude that private respondent’s second marriage to petitioner is valid.

77 thoughts on “Effect of Annulment in a Criminal Case for Bigamy

  1. jean fernandez

    is the sentence of a private citizen accused or guilty of bigamy, (more or less) the same with a local government official accused or guilty of bigamy? or, is there a different proceeding or sentence to
    local goverment officials being guilty of bigamy?

  2. guilbert

    just want to ask just in in case i filed a case for bigamy then i want to dismiss the case what can i do… just in case i wont appear to the court or both parties would not appear on hearing will the cade be dismiss..? thank you hoping to hear an answer from you….


  3. jlp


    Please ask the public prosecutor assigned to the court where the case is pending. He has control in posecuting the case. Tell him about your decision not to proceed and ask him about an Affidavit of Desistance. Good luck.

  4. peter

    I would like to know the situation if a 2nd (foreign) husband obtains decree nullity in foreign court from a Filipina who is still married to a Filipino in Philippines. The second marriage took place abroad in 1991 in a RC church although no banns were posted in the Philippines.

    What is the situation if she obtained Ph passport in 1973 by the same deception and fraud: claiming each and time and signing on official applications forms since 1973 to be SINGLE as well as using her maiden name only: although she was married in 1971 and never annulled or divorced.

    In 1990 she applied for and obtained foreign citizenship and foreign passport using the same methods : deceptively and fraudulently claiming and signing to be single while using her maiden name. Furthermore deceptively and fraudulently signing that there is no impediment to the second marriage.

    It is not know if she holds dual citizenship.

    1) What are the implications concerning her Ph immigration status?
    2) What is the situation concerning Ph civil law concerning her bigamy?
    3) What is the situation concerning Ph criminal law concerning her bigamy?
    4) What is the situation concerning RC Church?

  5. Atty. Fred Post author

    Peter, let me go through the questions:

    1) What are the implications concerning her Ph immigration status? I’m afraid this cannot be sufficiently answered, principally because it is unknown if she re-acquired her Phil. citizenship (please see the other article where you also posted this).

    2) What is the situation concerning Ph civil law concerning her bigamy? The answer may be gleaned from the article above.

    3) What is the situation concerning Ph criminal law concerning her bigamy? The answer may also be gleaned from the article above.

    4) What is the situation concerning RC Church? A dispensation is needed for a second marriage, but I suggest we ask a priest =)

  6. peter

    Thank you for your response Atty Fred.

    1) If she has not re-acquired her her Ph citizenship. What would be the situation as she is still married to a Filipino AS WELL AS having obtained Ph documents eg Ph passports by deception and fraud. She returns regularly and still has daughter and mother and siblings in Cavite. She regualrly deposits money in Ph.
    Would she be arrested on entry?

    G.R. No. 138509 July 31, 2000
    IMELDA MARBELLA-BOBIS, petitioner,
    ISAGANI D. BOBIS, respondent.
    As succinctly held in Landicho v. Relova: [10]
    (P)arties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question. A party who contracts a second marriage then assumes the risk of being prosecuted for bigamy.
    Ignorance of the existence of Article 40 of the Family Code cannot even be successfully invoked as an excuse.16 The contracting of a marriage knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment is an act penalized by the Revised Penal Code.17 The legality of a marriage is a matter of law and every person is presumed to know the law. As respondent did not obtain the judicial declaration of nullity when he entered into the second marriage, why should he be allowed to belatedly obtain that judicial declaration in order to delay his criminal prosecution and subsequently defeat it by his own disobedience of the law?
    The burden of proof to show the dissolution of the first marriage before the second marriage was contracted rests upon the defense.

    G.R. No. 159218 March 30, 2004
    The Family Code took effect on 3 August 1988 and is absolute. It seems from the recent cases I have quoted that a competent Court MUST annul the first marriage BEFORE contracting the second. otherwise the second marriage will be bigamous. Ignorance is not acceptable excuse according to case law above.

    This applies it seems in the situation I have described but wonder if Ph authorities are due to arrest the woman on her return to Ph or is it a civil matter.

    Furthermore Article 370 seems also to apply

    Art. 370. A married woman may use:
    (1) Her maiden first name and surname and add her husband’s surname, or
    (2) Her maiden first name and her husband’s surname or
    (3) Her husband’s full name, but prefixing a word indicating that she is his wife, such as “Mrs.”

    This woman has not complied and has deceitfully and fraudulently perjured herself in stating and signing that she is single while suing her maiden name and Miss.

    I am not sure what is the remedy.

    3) Criminal aspects seem to be as per the case that she is libale to be sent to prison on return to Ph. But who will act if there has not been a hearing in the Ph?

    4) In what way is the church liable for not following civil law and canon law and not postng banns as they are required?
    What is the remedy?

  7. Atty. Fred Post author


    I was waiting for someone else to answer your questions =) Anyway, the cases you cited are consistent with the statement in the article that a declaration of nullity is needed before a married person can remarry.

    Falsification (like bigamy) is definitely criminal in nature. Nevertheless, if Philippine citizenship has not been reacquired, then a person would not be using a Philippine passport…so unless a case is actually filed, I don’t think someone will arrest her for something that is not obvious and established (or technically, the specific grounds for warrantless arrests).

    As far as I know, there is no provision in civil law which requires the posting of banns. As to canon law, I really don’t know…perhaps our priests-bloggers know about that.

  8. peter

    Thanks for your comment.
    I wonder if the when regsitering for civil marriage that civil authorities have a procedure to follow? If they do would this include having to check with the NSO for singleness or marriage certificate.

  9. jelli

    hi atty! my friend and her husband divorced in the u.s which they both signed. my friend has remarried, still a a filipino citizen and now has a child. her ex spouse has recently remarried also in the u.s and filed for an annulment in the phils.the cause was psycholgically incapacitated and was able to obtain a copy of my friend’s 2nd marriage certificate. is it safe for my friend to visit the philippines? can she be considered committing bigamy even if the ex-spouse has remarried too.but she only remarried in the u.s and not in the phils.is it supposed to be territorial for bigamy?pls. help.

  10. Atty. Fred


    An applicant for a marriage license, at least in the Philippines, is required to declare and state under oath if there is a previous marriage. Based on this document, the local civil registrar makes a determination if the documents supporting the application is in order. I presume that they do not make a query with the central record, although I already made a query with NSO just to confirm this matter. (On the other hand, checking with the central record should be done, maybe when the computerization program of the government is fully in place).

  11. Atty. Fred

    As previously discussed (click here), Philippine laws on marriage govern a Filipino wherever he/she is in the world. In other words, any marriage solemnized outside the Philippines has legal repercussions here.

    The same article also discusses the effect of a divorce secured by Filipinos abroad – it has no effect in the Philippines and the couple is still considered married under Philippine laws. Unlike adultery or concubinage, bigamy is a public offense, which means that the State can prosecute it even if the other spouse is guilty of the same thing.

    Still, as this discussion is in general and is not a legal advice, I strongly suggest that your friend consult her retained lawyer. Hope this helps.

  12. christine

    Usually how long will it take the case to be finished? The husband had the second marriage even if the first one is not annulled yet.

    Could you give some estimatE?

    Thanks! =)

  13. Pingback: Philippine e-Legal Forum » Blog Archive » Steps and Procedure in Annulment and Declaration of Nullity of Marriage

  14. joshua


    i am hoping someone could clarify this legal matter. i am really confused, BIGAMY is a public crime isn’t it? Thus, any concerned citizen, who has the legal capacity, may file the criminal charges, right? And if this is so the case, where MUST / SHOULD the concerned citizen file the complaint? in the place where the first marriage commenced or where the supposedly bigamous marriage occurred?

    Do we have a prevailing jurisprudence regarding this issue?

    Thank you and hope to hear from you.

    josh =)


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