The 4 elements of bigamy

Dear PAO,
My cousin married at the age of 21. His wife moved to Singapore to fulfill her professional dreams, and they eventually stopped communicating with one another. My cousin met another woman subsequently. He has been very open to her about his marital status and, though their relationship has deepened, he has remained firm with his decision that he will not marry again until his marriage with his wife is annulled.

One night, we were having a drinking spree at my cousin’s house. His girlfriend was inducing him to sign a document. When my cousin saw that it appeared to be a contract of marriage, he refused to sign. But his girlfriend told him that it is not an official contract and she will just use it to pull a joke on her friends. Since he was starting to get annoyed, he just gave in and signed the document. Unfortunately, their relationship turned sour months later because of irreconcilable differences.

Now, my cousin’s ex-girlfriend is threatening to sue him for bigamy. She said she will use the document he signed against him. Do you think this action will prosper in court? Please advise.

Loveliness

Dear Loveliness,
Bigamy is a crime punishable under Article 349 of the Revised Penal Code of the Philippines. In order for a person accused of the commission thereof to be held criminally responsible, the following elements must exist: The offender is legally married; 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; a second or subsequent marriage is contracted; and such second or subsequent marriage has all the essential requisites of a valid marriage.

In the situation of your cousin, it is apparent that the first and second elements are present. The presence of the third and fourth elements, however, is doubtful. While your cousin signed a document, which was purported to be a contract of marriage, that document alone will not suffice to conclude that he is, in fact, married to his former girlfriend. Keep in mind that there is only a valid contract of marriage if the following essential and formal requisites are present: legal capacity of the contracting parties who must be a male and a female; consent freely given by the parties in the presence of the solemnizing officer; the solemnizing officer has authority to solemnize the marriage; a valid marriage license, except in the cases allowed by law; and a marriage ceremony that takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not fewer than two witnesses of legal age (Articles 2 and 3, Family Code of the Philippines).

Since your cousin and his former girlfriend did not appear to have secured a valid marriage license, and neither was there a marriage ceremony that took place in accordance with the tenets of our law, it cannot be argued that all the elements to a valid contract of marriage are present. Thus, we are inclined to believe that there exists no true contract of marriage between them. Taking these into consideration, we are not persuaded to conclude that a case for bigamy against your cousin will prosper in court.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net