FIRST DIVISION

[G.R. No. 138509. July 31, 2000.]

IMELDA MARBELLA-BOBIS, petitioner, vs. ISAGANI D. BOBIS, respondent.

Francisca L. Daria for petitioner.

Josieline A. Tia for respondent.

SYNOPSIS

An information for bigamy was filed against respondent on February 25, 1998 for having
contracted a second marriage with petitioner Imelda Marbella-Bobis on January 25, 1996 and
allegedly a third marriage with a certain Julia Sally Hernandez. Thereafter, respondent initiated a
civil action for the judicial declaration of absolute nullity of his first marriage on the ground that
it was celebrated without a marriage license. Respondent then filed a motion to suspend the
proceedings in the criminal case for bigamy invoking the pending civil case for nullity of the
first marriage as a prejudicial question to the criminal case. The trial judge granted the motion to
suspend the criminal case. Petitioner filed a motion for reconsideration, but the same was
denied. Hence, the petition. Petitioner argued that respondent should have first obtained a
judicial declaration of nullity of his first marriage before entering into the second marriage,
inasmuch as the alleged prejudicial question justifying suspension of the bigamy case is no
longer a legal truism pursuant to Article 40 of the Family Code.

The Supreme Court upheld petitioner's contention and reversed and set aside the order of
the trial court suspending the criminal proceeding on the ground of prejudicial question. The
Court ruled that Article 40 of the Family Code, which was effective at the time of celebration of
the second marriage, requires a prior judicial declaration of nullity of a previous marriage before
a party may remarry. The clear implication of the law is that it is not for the parties, particularly
the accused, to determine the validity or invalidity of the marriage. Whether or not respondent's
first marriage was void for lack of a license is a matter of defense because there is still no
judicial declaration of its nullity at the time the second marriage was contracted, and 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. A decision in the civil case is not
essential to the determination of the criminal charge for bigamy against respondent. It is,
therefore, not a prejudicial question.

SYLLABUS

1. CIVIL LAW; PREJUDICIAL QUESTION; CONSTRUED. — A prejudicial

question is one which arises in a case, the resolution of which, is a logical antecedent of the
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 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. A
prejudicial question does not conclusively resolve the guilt or innocence of the accused but
simply tests the sufficiency of the allegations in the information in order to sustain the further
prosecution of the criminal case. A party who raises a prejudicial question is deemed to have
hypothetically admitted that all the essential elements of a crime have been adequately alleged in
the information, considering that the prosecution has not yet presented a single evidence on the
indictment or may not yet have rested its case. A challenge of the allegations in the information
on the ground of prejudicial question is in effect a question on the merits of the criminal charge
through a non-criminal suit. SCETHa

2. CRIMINAL LAW; ILLEGAL MARRIAGES; BIGAMY; PENDENCY OF CIVIL

CASE FOR DECLARATION OF NULLITY OF MARRIAGE NOT A PREJUDICIAL
QUESTION IN THE PROSECUTION THEREOF. — The issue in this case is limited to the
existence of a prejudicial question, and we are not called upon to resolve the validity of the first
marriage. Be that as it may, suffice it to state that the Civil Code, under which the first marriage
was celebrated, provides that "every intendment of law or fact leans toward the validity of
marriage, the indissolubility of the marriage bonds." Hence, parties should not be permitted to
judge for themselves the nullity of their marriage, for the same must be submitted to the
determination of competent courts. Only when the nullity of the marriage is so declared can it be
held as void, and so long as there is no such declaration the presumption is that the marriage
exists. No matter how obvious, manifest or patent the absence of an element is, the intervention
of the courts must always be resorted to. That is why Article 40 of the Family Code requires a
"final judgment," which only the courts can render. Thus, as ruled in Landicho v. Relova, he
who contracts a second marriage before the judicial declaration of nullity of the first marriage
assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not be
suspended on the ground of the pendency of a civil case for declaration of nullity. In a recent
case for concubinage, we held that the pendency of a civil case for declaration of nullity of
marriage is not a prejudicial question. This ruling applies here by analogy since both crimes
presuppose the subsistence of a marriage.

3. ID.; ID.; ID.; IGNORANCE OF THE EXISTENCE OF ARTICLE 40 OF THE

FAMILY CODE CANNOT BE SUCCESSFULLY INVOKED AS AN EXCUSE; THE
LEGALITY OF A MARRIAGE IS A MATTER OF LAW AND EVERY PERSON IS
PRESUMED TO KNOW THE LAW. — Ignorance of the existence of Article 40 of the Family
Code cannot even be successfully invoked as an excuse. 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. 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
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 and subsequently defeat it by his own disobedience of the law? If he wants to raise the nullity of
the previous marriage, he can do it as a matter of defense when he presents his evidence during
the trial proper in the criminal case.

4. ID.; ID.; ID.; ANY DECISION IN THE CIVIL ACTION FOR NULLITY WOULD
NOT ERASE THE FACT THAT RESPONDENT ENTERED INTO A SECOND MARRIAGE
DURING THE SUBSISTENCE OF HIS FIRST MARRIAGE; CASE AT BAR. — 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.

DECISION

YNARES-SANTIAGO, J : p

On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B.
Javier. Without said marriage having been annulled, nullified or terminated, the same
respondent contracted a second marriage with petitioner Imelda Marbella-Bobis on January 25,
1996 and allegedly a third marriage with a certain Julia Sally Hernandez. Based on petitioner's
complaint-affidavit, an information for bigamy was filed against respondent on February 25,
1998, which was docketed as Criminal Case No. Q98-75611 of the Regional Trial Court, Branch
226, Quezon City. Sometime thereafter, respondent initiated a civil action for the judicial
declaration of absolute nullity of his first marriage on the ground that it was celebrated without a
marriage license. Respondent then filed a motion to suspend the proceedings in the criminal case
for bigamy invoking the pending civil case for nullity of the first marriage as a prejudicial
question to the criminal case. The trial judge granted the motion to suspend the criminal case in
an Order dated December 29, 1998. 1(1) Petitioner filed a motion for reconsideration, but the
same was denied.

Hence, this petition for review on certiorari. Petitioner argues that respondent should
have first obtained a judicial declaration of nullity of his first marriage before entering into the
second marriage, inasmuch as the alleged prejudicial question justifying suspension of the
bigamy case is no longer a legal truism pursuant to Article 40 of the Family Code. 2(2)

The issue to be resolved in this petition is whether the subsequent filing of a civil action
for declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal
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 case for bigamy.

A prejudicial question is one which arises in a case the resolution of which is a logical
antecedent of the issue involved therein. 3(3) 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. 4(4) It must appear not only that the civil crime 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. 5(5) 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. 6(6) Its two essential
elements are: 7(7)

(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.

A prejudicial question does not conclusively resolve the guilt or innocence of the accused
but simply tests the sufficiency of the allegations in the information in order to sustain the
further prosecution of the criminal case. A party who raises a prejudicial question is deemed to
have hypothetically admitted that all the essential elements of a crime have been adequately
alleged in the information, considering that the prosecution has not yet presented a single
evidence on the indictment or may not yet have rested its case. A challenge of the allegations in
the information on the ground of prejudicial question is in effect a question on the merits of the
criminal charge through a non-criminal suit. AHDaET

Article 40 of the Family Code, which was effective at the time of celebration of the
second marriage, requires a prior judicial declaration of nullity of a previous marriage before a
party may remarry. The clear implication of this is that it is not for the parties, particularly the
accused, to determine the validity or invalidity of the marriage. 8(8) Whether or not the first
marriage was void for lack of a license is a matter of defense because there is still no judicial
declaration of its nullity at the time the second marriage was contracted. It should be
remembered that bigamy can successfully be prosecuted provided all its elements concur — two
of which are a previous marriage and a subsequent marriage which would have been valid had it
not been for the existence at the material time of the first marriage. 9(9)

In the case at bar, respondent's clear intent is to obtain a judicial declaration of nullity of
his first marriage and thereafter to invoke that very same judgment to prevent his prosecution for
bigamy. He cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has
to do is to disregard Article 40 of the Family Code, contract a subsequent marriage and escape a
bigamy charge by simply claiming that the first marriage is void and that the subsequent
marriage is equally void for lack of a prior judicial declaration of nullity of the first. A party may
even enter into a marriage aware of the absence of a requisite — usually the marriage
license—and thereafter contract a subsequent marriage without obtaining a declaration of nullity
of the first on the assumption that the first marriage is void. Such scenario would render
nugatory the provisions on bigamy. As succinctly held in Landicho v. Relova: 10(10)

(P)arties to a marriage should not be permitted to judge for themselves its nullity,
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 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.

Respondent alleges that the first marriage in the case before us was void for lack of a
marriage license. Petitioner, on the other hand, argues that her marriage to respondent was
exempt from the requirement of a marriage license. More specifically, petitioner claims that
prior to their marriage, they had already attained the age of majority and had been living
together as husband and wife for at least five years. 11(11) The issue in this case is limited to the
existence of a prejudicial question, and we are not called upon to resolve the validity of the first
marriage. Be that as it may, suffice it to state that the Civil Code, under which the first marriage
was celebrated, provides that "every intendment of law or fact leans toward the validity of
marriage, the indissolubility of the marriage bonds." 12(12) Hence, parties should not be
permitted to judge for themselves the nullity of their marriage, for the same must be submitted to
the determination of competent courts. Only when the nullity of the marriage is so declared can
it be held as void, and so long as there is no such declaration, the presumption is that the
marriage exists. 13(13) No matter how obvious, manifest or patent the absence of an element is,
the intervention of the courts must always be resorted to. That is why Article 40 of the Family
Code requires a "final judgment," which only the courts can render. Thus, as ruled in Landicho
v. Relova, 14(14) he who contracts a second marriage before the judicial declaration of nullity of
the first marriage assumes the risk of being prosecuted for bigamy, and in such a case the
criminal case may not be suspended on the ground of the pendency of a civil case for declaration
of nullity. In a recent case for concubinage, we held that the pendency of a civil case for
declaration of nullity of marriage is not a prejudicial question. 15(15) This ruling applies here by
analogy since both crimes presuppose the subsistence of a marriage. TIcAaH

Ignorance of the existence of Article 40 of the Family Code cannot even be successfully
invoked as an excuse. 16(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(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? If he wants to raise the nullity of the
previous marriage, he can do it as a matter of defense when he presents his evidence during the
trial proper in the criminal case.

The burden of proof to show the dissolution of the first marriage before the second
marriage was contracted rests upon the defense, 18(18) but that is a matter that can be raised in
the trial of the bigamy case. In the meantime, it should be stressed that not every defense raised
in the civil action may be used as a prejudicial question to obtain the suspension of the criminal
action. The lower court, therefore, erred in suspending the criminal case for bigamy. Moreover,
when respondent was indicted for bigamy, the fact that he entered into two marriage ceremonies
appeared indubitable. It was only after he was sued by petitioner for bigamy that he thought of
seeking a judicial declaration of nullity of his first marriage. The obvious intent, therefore, is
that respondent merely resorted to the civil action as a potential prejudicial question for the
purpose of frustrating or delaying his criminal prosecution. As has been discussed above, this
cannot be done.
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 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. 19(19) 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. 20(20) 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. 21(21)

WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the
Regional Trial Court, Branch 226 of Quezon City is REVERSED and SET ASIDE and the trial
court is ordered to IMMEDIATELY proceed with Criminal Case No. Q98-75611.

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan, and Pardo, JJ., concur.

Footnotes
1. Rollo, pp. 29-30.
2. Petition, p. 6; Rollo, p. 23.
3. Fortich-Celdran v. Celdran, 19 SCRA 502 (1967); Zapanta v. Montessa; 114 Phil. 428 (1962);
Merced v. Diez, 109 Phil. 155 (1960); See also People v. Aragon, 94 Phil. 357 (1954) cited in
Dichaves v. Judge Apalit, AM-MTJ-00-1274, June 8, 2000.
4. Yap v. Paras, 205 SCRA 625 (1992); Donato V. Luna, 160 SCRA 441 (1988); Quiambao v.
Osorio, 158 SCRA 674 (1988); Mendiola v. Macadaeg, 1 SCRA 593 (1961); Aleria v. Mendoza,
83 Phil. 427 (1949); Berbari v. Concepcion, 40 Phil. 837 (1920).
5. Ras v. Rasul, 100 SCRA 125 (1980); Benitez v. Concepcion. Jr., 2 SCRA 178 (1961) citing De
Leon v. Mabanag, 70 Phil. 202 (1940).
6. Yap v. Paras, 205 SCRA 625 (1992).
7. Rules of Court, Rule 111, Sec. 5. Elements of prejudicial question. The two (2) essential
elements of a prejudicial question 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. (See also Prado v. People, 218 Phil. 571).
8. Niñal v. Badayog, G.R. No. 133778, March 14, 2000.
9. People v. Dumpo, 62 Phil. 246 (1935). The elements of bigamy are: (1) 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 has not been judicially declared presumptively dead; (3) that
he contracts a subsequent marriage; (4) the subsequent marriage would have been valid had it not
been for the existence of the first. The exception to prosecution for bigamy are those covered by
Article 41 of the Family Code and by P.D. 1083 otherwise known as the Code of Muslim
Personal Laws of the Philippines, which provides that penal laws relative to the crime of bigamy
"shall not apply to a person married . . . . under Muslim Law" where the requirements set therein
are met. See also Sulu Islamic Association v. Malik, 226 SCRA 193 (1993); Merced v. Diez, 109
Phil. 155 (1960).
10. 22 SCRA 731, 735 (1968).
11. Civil Code, Article 76.
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 12. Civil Code, Article 220.
13. Landicho v. Relova, supra.
14. Supra.
15. Beltran v. People of the Philippines, G.R. No. 137567, June 20, 2000.
16. Civil Code, Article 3.
17. Revised Penal Code, Article 350.
18. People v. Dungao, 56 Phil. 805 (1931).
19. Apiag v. Judge Cantero, 268 SCRA 47, 61 (1997).
20. Wiegel v. Hon. Sempio-Dy, 143 SCRA 499, 501 (1986).
21. People v. Aragon, 94 Phil. 357, 360 (1954).

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 Endnotes

1 (Popup - Popup)
1. Rollo, pp. 29-30.

2 (Popup - Popup)
2. Petition, p. 6; Rollo, p. 23.

3 (Popup - Popup)
3. Fortich-Celdran v. Celdran, 19 SCRA 502 (1967); Zapanta v. Montessa; 114 Phil. 428 (1962);
Merced v. Diez, 109 Phil. 155 (1960); See also People v. Aragon, 94 Phil. 357 (1954) cited in
Dichaves v. Judge Apalit, AM-MTJ-00-1274, June 8, 2000.

4 (Popup - Popup)
4. Yap v. Paras, 205 SCRA 625 (1992); Donato K Luna, 160 SCRA 441 (1988); Quiambao v.
Osorio, 158 SCRA 674 (1988); Mendiola v. Macadaeg, 1 SCRA 593 (1961); Aleria v. Mendoza,
83 Phil. 427 (1949); Berbari v. Concepcion, 40 Phil. 837 (1920).

5 (Popup - Popup)
5. Ras v. Rasul, 100 SCRA 125 (1980); Benitez v. Concepcion. Jr., 2 SCRA 178 (1961) citing De
Leon v. Mabanag, 70 Phil. 202 (1940).

6 (Popup - Popup)
6. Yap v. Paras, 205 SCRA 625 (1992).

7 (Popup - Popup)
7. Rules of Court, Rule 111, Sec. 5. Elements of prejudicial question. The two (2) essential
elements of a prejudicial question 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. (See also Prado v. People, 218 Phil. 571).

8 (Popup - Popup)
8. Niñal v. Badayog, G.R. No.133778, March 14, 2000.

9 (Popup - Popup)
9. People v. Dumpo, 62 Phil. 246 (1935). The elements of bigamy are: (I) 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 has not been judicially declared presumptively dead; (3) that
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 he contracts a subsequent marriage; (4) the subsequent marriage would have been valid had it not
beer for the existence of the first. The exception to prosecution for bigamy are those covered by
Article 41 of the Family Code and by P.D. 1083 otherwise known as the Code of Muslim
Personal Laws of the Philippines, which provides that penal laws relative to the crime of bigamy
"shall not apply to a person married . . . . under Muslim Law" where the requirements set therein
are met. See also Sulu Islamic Association v. Malik, 226 SCRA 193 (1993); Merced v. Diez, 109
Phil. 155 (1960).

10 (Popup - Popup)
10. 22 SCRA 731, 735 (1968).

11 (Popup - Popup)
11. Civil Code, Article 76.

12 (Popup - Popup)
12. Civil Code, Article 220.

13 (Popup - Popup)
13. Landicho v. Relova, supra.

14 (Popup - Popup)
14. Supra.

15 (Popup - Popup)
15. Beltran v. People of the Philippines, G.R. No. 137567, June 20, 2000.

16 (Popup - Popup)
16. Civil Code, Article 3.

17 (Popup - Popup)
17. Revised Penal Code, Article 350.

18 (Popup - Popup)
18. People v. Dungao, 56 Phil. 805 (1931).

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 19 (Popup - Popup)
19. Apiag v. Judge Cantero, 268 SCRA 47, 61 (1997).

20 (Popup - Popup)
20. Wiegel v. Hon. Sempio-Dy, 143 SCRA 499, 501 (1986).

21 (Popup - Popup)
21. People v. Aragon, 94 Phil. 357, 360 (1954).

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