VOL.

336, JULY 31, 2000 747

Marbella-Bobis vs. Bobis
*
G.R. No. 138509. July 31, 2000.

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

Criminal Procedure;  Prejudicial Questions;  Elements;  Words and Phrases;  A

prejudicial question is one which arises in a case the resolution of which is a logical
antecedent of the issue involved therein.—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.
Same; Same;  Pleadings and Practice;  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 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.
Same; Same; Bigamy; Family Code; Article 40 of the Family Code requires a prior
judicial declaration of nullity of a previous marriage before a party may remarry.—
Article 40 of the Family Code, which was effective at

_______________

* FIRST DIVISION.

748
 748 SUPREME COURT REPORTS
ANNOTATED

Marbella-Bobis vs. Bobis

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. 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.
Same;  Same;  Same;  Parties to a marriage should not be permitted to judge for
themselves its nullity, only competent courts having such authority.—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:  (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.
Same; Same; Same; Elements.—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 PD 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 x x x under Muslim Law” where the
requirements set therein are

749

VOL. 336, JULY 31, 2000 749

Marbella-Bobis vs. Bobis

met. See also Sulu Islamic Association v. Malik,  226 SCRA 193 (1993);  Merced v.
Diez, 109 Phil. 155 (1960).
 Same;  Same;  Same;  Concubinage;  The pendency of a civil case for declaration of
nullity of marriage is not a prejudicial question in a prosecution for concubinage or
bigamy.—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.
Same; Same; Same; Ignorance of Law; 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 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.
Same; Same; Same; 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.—
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

750

750 SUPREME COURT REPORTS

ANNOTATED

Marbella-Bobis vs. Bobis

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.
PETITION for review on certiorari of a decision of the Regional Trial Court of
Quezon City, Br. 226.

The facts are stated in the opinion of the Court.

     Francisco L. Daria for petitioner.
     Josieline A. Tia for private respondent.

YNARES-SANTIAGO, J.:

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 ease. The trial judge granted the motion to suspend
the criminal case in an Order dated Decem-
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VOL. 336, JULY 31, 2000 751

Marbella-Bobis vs. Bobis
1
ber 29, 1998.   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 2
case is no
longer a legal truism pursuant to Article 40 of the Family Code.
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 case for bigamy.
A prejudicial question is one which arises in a case
3
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 4
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 raised5 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 de-

_______________
 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, 333 SCRA 54.
4  Yap v. Paras,  205 SCRA 625  (1992);  Donato v. Luna,  160 SCRA 441(1998);  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).

752

752 SUPREME COURT REPORTS ANNOTATED

Marbella-Bobis vs. Bobis
6
terminative of7 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.
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
8
the accused, to determine the validity
or invalidity of the marriage.  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

_______________
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, 328 SCRA 122.

753
 VOL. 336, JULY 31, 2000 753
Marbella-Bobis vs. Bobis

previous marriage and a subsequent marriage which would have been 9valid
had it not been for the existence at the material time of the first marriage.
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 10
nugatory the provisions on bigamy. As succinctly held in Landicho v. Relova:
(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.

_______________
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 x x x 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).

754

754 SUPREME COURT REPORTS ANNOTATED

Marbella-Bobis vs. Bobis

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 11
and had been living together as
husband and wife for at least five years.  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 12
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 13
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,”
14
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 a15 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.

_______________
11 CivilCode, Article 76.
12 CivilCode, Article 220.
13 Landicho v. Relova, supra.
14 Supra.
15 Beltran v. People of the Philippines, G.R. No. 137567, June 20, 2000, 334 SCRA 106.

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VOL. 336, JULY 31, 2000 755

Marbella-Bobis vs. Bobis

Ignorance of the existence of Article

16
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
17
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 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
18
marriage before the
second marriage was contracted rests upon the defense,  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.
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

_______________
16 CivilCode, Article 3.
17 Revised Penal Code, Article 350.
18 People v. Dungao, 56 Phil. 805 (1931).

756

756 SUPREME COURT REPORTS ANNOTATED

Marbella-Bobis vs. Bobis
19
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 as20
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
21
to use
his own malfeasance to defeat the criminal action against him.
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., Chairman), Puno, Kapunan and Pardo, JJ., concur.

Petition granted, order reversed and set aside.

Note.—American jurisprudence, on cases involving statutes in that

jurisdiction which are  in pari materia  with ours, yields the rule that  after a
divorce has been decreed, the innocent spouse no longer has the right to institute
proceedings against the offenders where the statute provides that the innocent
spouse shall have the exclusive right to institute a prosecution for adultery.
(Pilapil vs. Ibay-Somera, 174 SCRA 653 [1989])

_______________
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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