Bigamy: seventy-two years of a rule that kept changing its mind
One question has governed almost every bigamy prosecution in Philippine history: must an accused first obtain a judicial declaration that the earlier marriage was void, before that nullity can be used as a defense? The Court has answered it both ways — repeatedly. In 2021 it reversed itself again, and this time abandoned twenty-eight years of contrary doctrine.
Pulido v. People
A void ab initio marriage may be raised as a defense in a bigamy prosecution without any prior judicial declaration of its nullity. Article 40 of the Family Code did not amend Article 349 of the Revised Penal Code; the judicial declaration it requires is for purposes of remarriage, not an element of the crime and not a precondition to the defense. The accused may prove nullity by testimonial or documentary evidence, including a declaration obtained after the fact.
G.R. No. 220149 · July 27, 2021 · EN BANC · Hernando, J.
Concurring opinions: Perlas-Bernabe, Caguioa, Lazaro-Javier, JJ. · Petitioner ACQUITTED.
A void ab initio first marriage is a defense — no prior declaration required.
A void ab initio subsequent marriage may likewise be raised.
The rule applies to marriages celebrated under both the Civil Code and the Family Code.
A second marriage void only because it is bigamous is not a defense.
A merely voidable first marriage is not: an annulment decree cannot be interposed, because the marriage was valid and subsisting when the second was contracted.
People v. Mendoza
No judicial decree is necessary to establish the invalidity of a void prior marriage as a defense in bigamy — as distinguished from voidable marriages. The accused, whose second marriage was void for bigamy and whose first wife had died, did not commit bigamy by contracting a third.
Defense allowedPeople v. Aragon
Reaffirmed Mendoza on materially identical facts. For three decades this was understood as the settled rule.
Defense allowedGomez v. Lipana
Deviated from Mendoza and Aragon: a judicial declaration of nullity is necessary even though the marriage is presumed void for having been contracted during a prior subsisting marriage.
Declaration requiredVda. de Consuegra v. GSIS
Followed Gomez.
Declaration requiredOdayat v. Amante · Tolentino v. Paras
The Court reverted to Mendoza and Aragon.
Defense allowedWiegel v. Sempio-Diy
Reversed course again: a judicial declaration of nullity of a void marriage is required before one may enter another. This reasoning would later be codified in Article 40 of the Family Code.
Declaration requiredYap v. Court of Appeals
In the same year as Wiegel, the Court held otherwise once more.
Defense allowedApiag v. Cantero · Ty v. Court of Appeals
Clarified the confusion by drawing a line at the statute: the requirement of a judicial decree does not apply to marriages celebrated before the Family Code, which remain governed by Mendoza, Aragon and Odayat.
Defense allowed — pre-Family CodeDomingo v. Court of Appeals
A declaration of absolute nullity is required, whether pleaded as a cause of action or as a defense. Parties may not judge for themselves whether their marriage is void; only a competent court may say so.
Declaration requiredMercado v. Tan
Expressly abandoned Mendoza and Aragon as superseded by Article 40. A declaration of nullity obtained after the second marriage is immaterial — the crime was already consummated. To hold otherwise would let an accused file a nullity petition and invoke it to stall the prosecution.
Declaration requiredMarbella-Bobis v. Bobis
A pending petition to nullify the first marriage is not a prejudicial question that suspends the bigamy case.
Declaration requiredTenebro v. Court of Appeals
Extended the rule to the second marriage: its later declaration of nullity for psychological incapacity is "of absolutely no moment insofar as the State's penal laws are concerned." Article 349 punishes the mere act of contracting a second marriage during a subsisting valid one.
Declaration requiredMorigo v. People
The outlier. The parties merely signed a marriage contract with no ceremony and no solemnizing officer — so there was no first marriage at all, and the first element of bigamy was missing. Acquittal. Pulido would later note that Morigo and Mercado were "at variance" on the effects of a void marriage.
Acquitted — no marriage existedThe consolidation
Manuel v. People (512 Phil. 818), Jarillo v. People (617 Phil. 45), Nollora, Jr. v. People (672 Phil. 771), Montañez v. Cipriano (697 Phil. 586), Lasanas v. People (736 Phil. 735) and Vitangcol v. People (778 Phil. 326) each reapplied the rule. Jarillo held Article 40 applies even to marriages governed by the Civil Code; the line held that even a first marriage void for want of a licence left the accused liable absent a prior decree.
Declaration requiredPulido v. People
"It is time to abandon the earlier precedents and adopt a more liberal view that a void ab initio marriage can be used as a defense in bigamy even without a separate judicial declaration of absolute nullity." The parties need not obtain a declaration to raise nullity of either the first or the subsequent marriage; the rule now applies to marriages under both Codes; and Article 40 did not deny the accused the right to collaterally attack a void marriage in a criminal prosecution. The Court rested this on the retroactive effects of a void marriage, the legislative intent behind Article 40, and the rule that penal laws are construed strictly against the State.
Defense allowedLapira-y-Tungol v. Fariscal
The first squarely on-point application. The accused raised the nullity of her first marriage for want of a licence without any prior declaration, invoking Pulido, and rebutted the presumption of validity with a civil registrar's certification that no licence was ever issued. One element of bigamy therefore failed. The case supplies the evidentiary standard Pulido left open for this ground of nullity.
Defense allowedWhat actually changed
| Question | Mercado line (2000–2016) | Pulido (2021– ) |
|---|---|---|
| Void first marriage, no prior decree | Not a defense. Crime already consummated. | A defense. No decree needed. |
| Decree obtained after the second marriage | Immaterial. | Admissible as evidence of nullity. |
| Void second marriage | Immaterial (Tenebro). | May be raised — unless void only for being bigamous. |
| Voidable first marriage | Not a defense. | Still not a defense. Unchanged. |
| Marriages under the Civil Code | Article 40 applied retroactively (Jarillo). | Same rule for both Codes — now the permissive one. |
| Function of Article 40 | A precondition to the defense. | A requirement for remarriage only. It did not amend Article 349. |
| Rule of construction | Protect the institution of marriage; deter evasion. | Penal laws construed strictly against the State. |
What Pulido did not decide
Retroactive benefit to final convictions
Pulido is favourable to the accused, and penal rules favourable to the accused ordinarily apply retroactively. Whether that reaches convictions already final — and by what remedy — is not resolved in any decision I could verify.
Prejudicial question
Pulido records that Merced, Zapanta and De la Cruz — which had treated a nullity action as a prejudicial question — were abandoned, and that under the rule it was reviewing, nullity of the second marriage was neither a defense nor a prejudicial question. Having restored the defense, the Court did not squarely say whether the prejudicial-question doctrine returns with it.
Morigo's continuing role
Morigo turned on the absence of any ceremony, not on the absence of a decree. Under Pulido that distinction may no longer carry weight, since nullity on any ground is now available as a defense — but Morigo has not been expressly superseded.
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