PERSONS AND FAMILY RELATIONS

Nasrudin I. Untong
2JD-E

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1. Justine, a Filipino citizen, and James, US citizen, were married in Hong Kong.
They established their residence in the Philippines and begot two children.
After some years, the parties divorced in Nevada, United States. Justine has
re-married to Joko. A suit then was instituted by James stating that
petitioner's business is a conjugal property and prayed that Justine be
ordered to render accounting of the business and he be declared with right to
manage the conjugal property. Justine moved to dismiss the case as the
cause of action is barred by the judgment in the divorce proceedings before
the Nevada Court wherein James acknowledged that he and Justine had "no
community property." The lower court denied the motion to dismiss stating
that the property is located in the Philippines, and that the divorce decree
from Nevada Court cannot prevail over prohibitive laws of the Philippines.
Decide.

Ans:

The respondent avers that the Divorce Decree issued by the

Nevada Court cannot prevail over the prohibitive laws of the
Philippines and its declared national policy; that the acts and
declaration of a foreign court cannot, especially if the same
is contrary to public policy, divest Philippine Courts of
jurisdiction to entertain matters within its jurisdiction.

As to the validity of that Nevada divorce in any of the States

of the United States. The decree is binding on private
respondent as an American citizen. It is true that owing to
the nationality principle embodied in Article 15 of the Civil
Code, only Philippine nationals are covered by the policy
against absolute divorces abroad, which may be recognized
in the Philippines, provided they are valid according to their
national law.

As to the property of of petitioner and respondent,

respondent is no longer the husband of petitioner pursuant
to his national law. He would have no standing to sue in the
 case below as petitioner’s husband entitled to exercise
control over conjugal assets. As he is bound by the Decision
of his own country’s Court, which validly exercised
jurisdiction over him, and whose decision he does not
repudiate. The latter should not continue to be one of her
heirs with possible rights over the alleged conjugal property.

2. In the April 24, 1985 decision of the Supreme Court which affirmed the
necessity of publication in the Official Gazette of all unpublished presidential
issuances which are general in application, and unless so provided, shall
have no binding effect. Petitioners move for consideration or clarification of
the decision on various questions:

a) Is publication still required in light of the clause, "unless otherwise

provided"?

b) Must a distinction be made between laws of general applicability and

laws which are not?

c) What, where and where is the publication to be made?

Ans:

a) Publication is still required. The clause, “unless

otherwise provided” refers to the date of effectivity
and not on the publication requirement, which
cannot in any event be omitted. Publication is
indispensable in any case.

ART. 2. Laws shall take effect after fifteen days

following the completion of their publication in the
Official Gazette, unless it is otherwise provided. This
Code shall take effect one year after such
publication.

b) No, that there should be no distinction between laws

of general applicability and those which are not; that
publication means complete publication; and that
 the publication must be made forthwith in the
Official Gazette.

c) Laws must be published. Otherwise, they are not effective.

Laws take effect only after the mandatory requirement of
publication in a newspaper of general circulation or the Official
Gazette. According to the Supreme Court:

Publication is indispensable in every case, but the legislature may in its discretion
provide that the usual fifteen-day period shall be shortened or extended. The clause
"unless otherwise provided" refers to the date of effectivity and not to the requirement
of publication itself, which cannot in any event be omitted. Publication must be in full
or it is no publication at all since the purpose of publication itself is to make the public
aware of the contents of the laws.1

Supreme Court decisions also form part of the law of the land.
Does this mean they must also be published? The answer is in the
negative. Supreme Court decisions need not be published as
enshrined in the following case law:

However, there is no law requiring the Publication of Supreme Court Decisions in the
the Official Gazette before they can be binding and as a condition to their becoming
effective. It is the bounden duty of the counsel as lawyer in active law practice to keep
abreast of decisions of the Supreme Court.

3. On January 23, 1979, the City Fiscal of Cotabato acting thru Assistant City
Fiscal filed an information for bigamy against petitioner Gerald with the Court
of First Instance of Manila, docketed as criminal Case No. 1355.The
information was filed based on the complaint of private respondent Bea. On
September 28. 1979, before the petitioner's arraignment, private respondent
filed with the Juvenile and Domestic Relations Court of Manila a civil action
for declaration of nullity of her marriage with petitioner contracted on
September 26, 1978. Said civil case was based on the ground that private
respondent consented to entering into the marriage, which was petitioner
Gerald's second one, since she had no previous knowledge that petitioner
was already married. Petitioner Gerald's answer in the civil case for nullity
interposed the defense that his second marriage was void since it was
solemnized without a marriage license and that force, violence, intimidation
and undue influence were employed by private respondent to obtain
petitioner's consent to the marriage. Prior to the date set for the trial on the
merits of Criminal Case No. 43554, petitioner filed a motion to suspend the
proceedings of said case contending that Civil Case seeking the annulment of
 his second marriage filed by private respondent mises a prejudicial question
which must first be determined or decided before the criminal case can
proceed. Is he correct? Decide.

Ans: Yes,

A prejudicial question is one which arises in a case the resolution

of which is a logical antecedent of the issue involved therein. It is
a question based on a fact distinct and separate from the crime
but so intimately connected with it that it determines the guilt or
innocence of the accused. It must appear not only that the civil
case involves facts upon which the criminal action is based, but
also that the resolution of the issues raised in the civil action
would necessarily be determinative of the criminal case.
Consequently, the defense must involve an issue similar or
intimately related to the same issue raised in the criminal action
and its resolution determinative of whether or not the latter
action may proceed. Its two essential elements are:

(a) the civil action involves an issue similar or intimately

related to the issue raised in the criminal action; and

(b) the resolution of such issue determines whether or not

the criminal action may proceed.

In the light of Article 40 of the Family Code, respondent,

without first having obtained the judicial declaration of
nullity of the first marriage, can not be said to have validly
entered into the second marriage. Per current jurisprudence,
a marriage though void still needs a judicial declaration of
such fact before any party can marry again; otherwise the
second marriage will also be void. The reason is that,
without a judicial declaration of its nullity, the first marriage
is presumed to be subsisting. In the case at bar, respondent
was for all legal intents and purposes regarded as a married
man at the time he contracted his second marriage with
petitioner. Against this legal backdrop, any decision in the
civil action for nullity would not erase the fact that
respondent entered into a second marriage during the
subsistence of a first marriage. Thus, a decision in the civil
case is not essential to the determination of the criminal
charge. It is, therefore, not a prejudicial question. As stated
above, respondent cannot be permitted to use his own
malfeasance to defeat the criminal action against him.

WHEREFORE, the petition is GRANTED.

 4. Issa, a Filipina, paid James, an American, $2,000.00 for the latter to marry
Nadine for purposes of immigration. In 2004, Nadine and James were married
out of jest. Immediately after the marriage, they separated and never lived as
husband and wife. However, Nadine's immigration application was denied. In
2006, Nadine filed a Petition for declaration of nullity of her marriage with
James on the ground that they never really had any intention of entering into
a married state or complying with any of their essential marital obligations.
According to the OSG, consent should be distinguished from motive, the latter
being inconsequential to the validity of marriage. The OSG also argues that
the present case does not fall within the concept of a marriage in jest. The
parties here intentionally consented to enter into a real and valid marriage. for
if it were otherwise, the purpose of Nadine to acquire American citizenship
would be rendered futile. Later, both the RTC and CA declared the marriage
void ab initio, explaining that when marriage was entered into for a purpose
other than the establishment of a conjugal and family life, such was a farce
and should not be recognized from its inception. Is a marriage, contracted for
the sole purpose of acquiring American citizenship and in consideration of
$2,000.00, void ab initio on the ground of lack of consent?

Ans: The resolution of this case hinges on this sole question of

law: Is a marriage, contracted for the sole purpose of acquiring
American citizenship in consideration of $2,000.00, void ab initio
on the ground of lack of consent?

Under Article 2 of the Family Code, consent is an essential

requisite of marriage. Article 4 of the same Code provides that the
absence of any essential requisite shall render a marriage void ab
initio.

Under said Article 2, for consent to be valid, it must be (1) freely

given and (2) made in the presence of a solemnizing officer. A
"freely given" consent requires that the contracting parties
willingly and deliberately enter into the marriage. Consent must
be real in the sense that it is not vitiated nor rendered defective
by any of the vices of consent under Articles45 and 46 of the
Family Code, such as fraud, force, intimidation, and undue
influence. Consent must also be conscious or intelligent, in that
the parties must be capable of intelligently understanding the
nature of, and both the beneficial or unfavorable consequences of
their act. Their understanding should not be affected by insanity,
intoxication, drugs, or hypnotism.

Before the Court delves into its ruling, It shall first examine the
phenomenon of marriage fraud for the purposes of immigration.

Marriage Fraud in Immigration

The institution of marriage carries with it concomitant benefits.

This has led to the development of marriage fraud for the sole
purpose of availing of particular benefits. In the United States,
marriages where a couple marries only to achieve a particular
purpose or acquire specific benefits, have been referred to as
"limited purpose" marriages. A common limited purpose marriage
is one entered into solely for the legitimization of a child. Another,
which is the subject of the present case, is for immigration
purposes. Immigration law is usually concerned with the intention
of the couple at the time of their marriage, and it attempts to
filter out those who use marriage solely to achieve immigration
status.

In 1975, the seminal case of Bark v. Immigration and

Naturalization Service, established the principal test for
determining the presence of marriage fraud in immigration cases.
It ruled that a "marriage is a sham if the bride and groom did not
intend to establish a life together at the time they were married.
"This standard was modified with the passage of the Immigration
Marriage Fraud Amendment of 1986 (IMFA), which now requires
the couple to instead demonstrate that the marriage was not
"entered into for the purpose of evading the immigration laws of
the United States." The focus, thus, shifted from determining the
intention to establish a life together, to determining the intention
of evading immigration laws. It must be noted, however, that this
standard is used purely for immigration purposes and, therefore,
does not purport to rule on the legal validity or existence of a
marriage.

The question that then arises is whether a marriage declared as a

sham or fraudulent for the limited purpose of immigration is also
legally void and in existent. The early cases on limited purpose
marriages in the United States made no definitive ruling. Neither
can their marriage be considered voidable on the ground of fraud
under Article 45 (3) of the Family Code. Only the circumstances
listed under Article 46 of the same Code may constitute fraud,
namely, (1) non- disclosure of a previous conv1ctwn involving
moral turpitude; (2) concealment by the wife of a pregnancy by
another man; (3) concealment of a sexually transmitted disease;
and (4) concealment of drug addiction, alcoholism, or
homosexuality. No other misrepresentation or deceit shall
constitute fraud as a ground for an action to annul a marriage.
Entering into a marriage for the sole purpose of evading
immigration laws does not qualify under any of the listed
circumstances. Furthermore, under Article 47 (3), the ground of
fraud may only be brought by the injured or innocent party. In the
present case, there is no injured party because Albios and Fringer
both conspired to enter into the sham marriage.

Here, premises considered, judgment is hereby rendered

declaring the marriage of Nadine and James as void from the very
beginning. As a necessary consequence of this pronouncement,
petitioner shall cease using the surname of respondent as she
never acquired any right over it and so as to avoid a
misimpression that she remains the wife of respondent.

5. On June 28, 2004, petitioner Tanggol was charged with the crime of bigamy
before the RTC of Cotabato. Petitioner thereafter filed a Motion to Suspend
Proceedings alleging that: 1) there is a pending civil case for the declaration
of nullity of the second marriage before the RTC of Cotabato City filed by
Mokang; 2) in the event the marriage is declared null and void, it would
exculpate him from the charge of bigamy; and 3) the pendency of the civil
case for the declaration of nullity of the second marriage serves as a
prejudicial question in the instant criminal case.

In the interim, the RTC of Cotabato City rendered a decision declaring the
voidness or incipient invalidity of the second marriage between petitioner and
private respondent on the ground that a subsequent marriage contracted by
the husband during the lifetime of the legal wife is void from the beginning.
Thereafter, the petitioner filed his Manifestation and Motion (to Dismiss)
praying for the dismissal of the criminal case for bigamy filed against him on
the ground that the second marriage between him and private respondent
had already been declared void by the RTC. Is the petitioner correct?

Ans: No, in essence, the issue is whether or not the

subsequent declaration of nullity of the second marriage is a
ground for dismissal of the criminal case for bigamy.

Article 349 of the Revised Penal Code defines and penalizes the
crime of bigamy as follows:

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.

The elements of the crime of bigamy, therefore, are: (1) the

offender has been legally married; (2) 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.

In the present case, it appears that all the elements of the crime
of bigamy were present when the Information was filed on June
28, 2004.

In Jarillo v. People, the Court affirmed the accused’s conviction

for bigamy ruling that the crime of bigamy is consummated on the
celebration of the subsequent marriage without the previous one
having been judicially declared null and void, viz.:

The subsequent judicial declaration of the nullity of the first

marriage was immaterial because prior to the declaration of
nullity, the crime had already been consummated. Moreover,
petitioner’s assertion would only delay the prosecution of bigamy
cases considering that 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. Thus,
under the law, a marriage, even one which is void or voidable,
shall be deemed valid until declared otherwise in a judicial
proceeding. In this case, even if petitioner eventually obtained a
declaration that his first marriage was void ab initio, the point is,
both the first and the second marriage were subsisting before the
first marriage was annulled.

Here, it is a settled rule that the criminal culpability attaches to

the offender upon the commission of the offense, and from that
instant, liability appends to him until extinguished as provided by
law. It is clear then that the crime of bigamy was committed by
petitioner from the time he contracted the second marriage with
private respondent. Thus, the finality of the judicial declaration of
nullity of petitioner’s second marriage does not impede the filing
of a criminal charge for bigamy against him.

6. On March 26, 1988, Dingdong and Karylle were married under the religious
 rites of Iglesia ni Cristo. They begot two children. Sometime in early 2005,
Dingdong left the family home to find a job. He later abandoned their family.
Karylle discovered that he was cohabiting with Marian. True enough, in June
18, 2005, Dingdong and Marian e contracted a marriage and was solemnized
by a Municipal Trial Court judge. Dingdong and Marian admitted that they got
married while Dingdong’s marriage to Karylle was subsisting. However, they
claimed that they could not be penalized for bigamy as they converted to
Islam prior to their marriage. Decide.

Ans: A party to a civil marriage who converts to Islam and

contracts another marriage, despite the first marriage's
subsistence, is guilty of bigamy. Likewise guilty is the spouse in
the subsequent marriage. Conversion to Islam does not operate to
exculpate them from criminal liability.

Further, a married Muslim cannot marry another. In exceptional

cases, a married Muslim man may do so if "he can deal with them
with equal companionship and just treatment as enjoined by
Islamic law." The formal requisites of the subsequent marriage
under Presidential Decree No. 1083 or the Code of Muslim
Personal Laws of the Philippines (Muslim Code) entails the wife's
knowledge of the impending subsequent marriage.

the Court found Francis and Jaqueline guilty beyond reasonable

doubt of bigamy. It reasoned that the Muslim Code and
Zamoranos v. People do not govern the circumstances of Marian,
Dingdong, and Marian considering that Karylle is not a Muslim.

The Court convicted petitioners with bigamy penalized under

Article 349 of the Revised Penal Code, which states:

ARTICLE 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. Contracting a second marriage without the
previous declaration of nullity of the first consummates the crime
of bigamy. To successfully prosecute this crime, the following
elements must be proven:
(1) that the offender has been legally married;
(2) that the 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 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.

Petitioners admit that Francis was legally married to Nerrian and

that the marriage was not dissolved. They likewise admit that
they subsequently married despite the subsistence of Francis'
marriage to Nerrian. These admissions sufficiently establish all
the elements of bigamy which prove petitioners' guilt beyond
reasonable doubt.

However, they claim that they both converted to Islam and were
married under Muslim rites. They contend that Muslims may
subsequently marry and this exculpates them from criminal
liability. Article XV, Section 11 of the 1973 Constitution provides
that, "[t]he State shall consider the customs, traditions, beliefs
and interests of national cultural communities in the formulation
and implementation of state policies." Similar policy was
enunciated in Article II, Section 22 and Article XIV, Section 17 of
the 1987 Constitution:

“Amat victoria curam” – Victory loves preparation.