EN BANC

G.R. No. 220149 - LUISITO G. PULIDO, petitioner, versus, PEOPLE OF

THE PHILIPPINES, respondent.

Promulgated:

July 27, 2021

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CONCURRING OPINION

CAGUIOA, J.:

I agree with the acquittal of petitioner and the ponencia' s ruling that, in
criminal prosecutions for Bigamy, an accused can validly interpose the defense
of a void marriage, even in the absence of a judicial declaration of absolute
nullity. 1

I write this opm1on to highlight the need for the Court to abandon
previous cases which ruled otherwise. A plain reading of A1iicle 349 of the
Revised Penal Code (RPC), which to date has not been amended or repealed by
any law, supports the conclusion that the absolute nullity of a void ab initio
marriage is a valid defense in an indictment for Bigamy, regardlesss of the
existence of a separate judicial declaration nullifying said marriage. The
absolute nullity of a void marriage may also be established and proven by the
accused in the very criminal proceeding filed against him, through other
evidence aside from a judicial decree declaring the marriage void ab initio.

As elaborated in the ponencia, the Court has taken differing positions

with respect to the issue of whether the nullity of a marriage void ab initio is a
valid defense in a prosecution for Bigamy. 2

In the earlier cases of People v. Mendoza, 3 People v. Aragon, 4 People v.

}vlora Dumpo 5 and People v. De Lara, 6 the Court recognized that nullity of a
void marriage is a valid defense and if proven during trial will exonerate an
accused of the crime of Bigamy.

Mendoza and Aragon involved the nullity of the first marriage, whereas
in Mora Dumpo and De Lara it was the nullity of the subsequent marriage that
was raised. In all these cases, the Court acquitted the accused ruling that the
crime of Bigamy was not and could not have been committed because the
respective prior or subsequent marriages were considered by law void ab initio.

Ponencia, p. 21.
Id. at 15-21.
:i 95 Phil. 845 (1954).
100 Phil. 1033 (1957).
62 Phil. 246 (I 935).
6
No. 12583-R, February 14, 1955, 51 O.G. 4079.
 Concurring Opinion 2 G.R. No. 220149

. In ~endoz~, the Court explained that "[a] prosecution for bigamy based
on said v01d marriage will not lie." 7 In Aragon, the Court, reiterating Mendoza,
ruled that the absolute nullity of a previous marriage exonerates an accused of
B_ig~my. and "no judicial decree is necessary to establish its invalidity, as
d1stmgmshed from mere annullable marriages." 8

In Mora Dumpo the Court held that, for Bigamy to arise, the alleged
second or subsequent marriage must also be valid. It must have all the essential
requisites of a valid marriage except for the existence of the first marriage.
Otherwise, "there is no justification to hold [an accused] guilty of the crime [of
Bigamy as] charged in the information. " 9

In De Lara, the Court acquitted the accused because it was established

that the subsequent marriage was contracted without a marriage license. The
Court explained that the second marriage could not even be considered a
bigamous marriage as it was void ab initio on grounds other than the existence
of the first marriage. 10

In succeeding cases, however, the Court has taken a 180-degree tum. 11

Th~ change in jurisprudence was impelled by the subsequent enactment of
Article 40 of the Family Code.

Foremost is the case of Mercado v. Tan. 12 In 1.tfercado, the Comi did not
give credence to the judicial declaration of nullity of the first marriage
subsequently obtained by the accused during the pendency of the criminal case
for Bigamy. According to the Court, by contracting a second marriage while
the first marriage was subsisting, the accused committed the acts punishable
under Article 349 of the RPC. That the accused subsequently obtained a judicial
declaration of nullity of his first marriage was immaterial. The Court
emphasized that Article 40 of the Family Code has effectively overturned the
Court's ruling in Afendoza and Aragon. 13 Thus, "[a] judicial declaration of
nullity of a previous marriage is necessary before a subsequent one can be
legally contracted. One who enters into a subsequent marriage without first
obtaining such judicial declaration is guilty of bigamy. This principle applies
even if the earlier union is characterized by statutes as 'void.'" 14

Similar to Mercado, the Court in Marbella-Bobis v. Bobis 15 found that

the issue on the absolute nullity of the first marriage, pending in a civil case, is
7
See Syllabus, supra note 3.
8
People v. Aragon, supra note 4, at J 035.
9
Supra note 5, at 248.
10 S11pra note 6. ·
11 See Mercado v. Tan, G.R. No. 137110, August 1, 2000, 337 SCRA 122; Murhella-Bobis v. Bobis, G.R.
No. 138509, .July 31, 2000. 336 SCRA 747; Tenehro v. Court ofAppeals, G.R. No. 150758, February 18,
2004, 423 SCRA 272; Santiago v. People, G.R. No. 200233, July 15, 2015, 763 SCRA 54; Antone v.
Beronilla, G.R. No. 183824, December 8, 2010, 637 SCRA 615; Abunado v. People, G.R. No. 159218,
March 30, 2004, 426 SCRA 562; Jarillo v. People, G.R. No. 164435, September 29, 2009, 601 SCRA
236.
12 Id.
13 See also Te v. Cour/ of Appeals, G.R. No. 126746, November 29, 2000, 346 SCRA 327, 336.
14
!llfercado v. Tan, supra note I l, at 124.
15
Supra note I I.
 Concurring Opinion 3 G.R. No. 220149

im1:1aterial in the prosecution for Bigamy. The Court explained that in light of
A1i1_cle_ 4_0 of the Family Code, he who contracts a subsequent marriage before
the Judicial declaration of nullity of his 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
16
nullity. The Court further noted that to allow an accused to simply invoke the
nullity of his first marriage is to render the provisions on bigamy nugatory, viz.:

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. xx
Xl7

In another case, Tenebro v. Court ofAppeals, 18 where the accused raised

the nullity of his second marriage based on a final and executory judgment, the
Court still found the accused guilty of Bigamy. According to the Court, "the
nullity of the second marriage is not per se an argument for the avoidance of
criminal liability for bigamy. x x x Article 349 of the Revised Penal Code
criminalizes x x x the mere act of contracting a second or a subsequent
marriage during the subsistence of a valid marriage," regardless of whether
the second or subsequent marriage is void ab initio. 19 Fmiher, similar to
Marbella-Bobis, the Court held in Tenebro that acquitting the accused "would
render the State's penal laws on bigamy completely nugatory, and allow
individuals to deliberately ensure that each marital contract be flawed in some
manner, and to thus escape the consequences of contracting multiple marriages,
while beguiling throngs of hapless women with the promise of futurity and
commitment." 20

Applying the principle enunciated in Mercado, Marbella-Bobis and

Tenebro, the Court consistently ruled in a catena of cases, which includes,
among others, Jarillo v. People,21 Antone v. Beronilla, 22 Teves v. People, 23
Montanez v. · Cipriano, 24 and People v. Odtuhan, 25 that the subsequent
declaration of nullity of the first marriage or second marriage is immaterial in

16
Id. at 75:3-754.
17
ld.at753.
18
Supra note 11.
19
Id. at 282; italics in the original.
20
Id. at 284.
21
Supra note 11.
22 Id.
23
G.R No. 188775, August 24,201 I, 656 SCRA 307.
24
G.R. No. 181089. October 22, 20i2, 684 SCRA 315.
25
G.R. No. 191566, July 17, 2013, 701 SCRA 506.
 Concurring Opinion 4 G.R. No. 220149

the P_rosecution for Big~y. ~he crime of Bigamy is committed once a person
c?ntrncts a s~cond marr~age w1thou~ first securing a judicial decree of nullity of
his first marriage, even 1f the latter 1s considered by law void ab initio.

. . These s~cceeding cases, which were diametrically opposed to the earlier

JUnsprudence 1~ the cases of Mendoza, et al., find no clear anchor on the plain
language of Article 349 of the RPC and Article 40 of the Family Code. In fact,
these cases unduly expanded the crime of Bigamy as defined and penalized by
the RPC and the purpose for which Article 40 of the Family Code was enacted.

I expound.

The absolute nullity of a void

marriage is a valid defense in
Bigamy. Article 349 of the RPC
applies only to valid or at least
voidable and not void ab initio
marriages. Other crimes not
covered by Article 349 are
punishable under Article 350 of the
RPC.

When the statute speaks unequivocally, there is nothing for the courts to
do but to apply it. 26 The plain, clear and unambiguous language of the law must
be taken to mean exactly what it says and courts have no choice but to see to it
that the mandate is obeyed. 27

In this case, the Court is called upon to apply the clear and
straightforward language of Article 349 of the RPC, which defines and
penalizes the crime of Bigamy. Article 349 explicitly states that Bigamy is
committed by "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." 28 Thus, to secure a conviction under Article 349,
the following elements must all be established, beyond reasonable doubt:

1. the offender has been legally married;

2. 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;
J. he contracts a subsequent marriage; and
4. the subsequent marriage would have been valid had it not been
for the existence of the first. 29
26
Tawang Multi-Purpose Cooperative v. La Trinidad Water District, G.R. No. 1664 71, March 22, 20 I 1, 646
SCRA 21, 33. ,
27
Abakada Gura Party List v. Ermita, G.R. Nos. 168056, 168207, 168461, 168463 & 168730, September I,
2005, 469 SCRA 14, 122.
28
Emphasis, italics and underscoring supplied.
29
Morigo v. People, G.R. No. 145226, Febrnary 6, 2004, 422 SCRA 376,382; See Associate Justice Antonio
T. Carpio's Dis8enting Opinion in Tenebro v. Court q[Appea!s, supra note 11, at 298.
','
Concurring Opinion 5 G.R. No. 220149

B~sed fro1? the foregoing, Bigamy is committed not by simply

contracting multiple marriages regardless of their inherent defects. The
gravamen of the offense, based on the plain language of the law, is the act of
contracting two valid marriages. 30 It is essential therefore that the validity of
the first and second marriages be sufficiently established before an accused may
be convicted for Bigamy. Hence, the first element requires that the offender
must be legally married and that such marriage was not legally dissolved when
the offender contracted a second or subsequent man-iage. That Article 349
intentionally used the term "legally dissolved" 31 presupposes that the first or
former marriage must be valid or at least voidable and not void ab initio;
because unlike a voidable marriage, which is considered by law valid from the
beginning unless annulled or dissolved by the court, a marriage void ab initio
does not need to be "legally dissolved' 32 as it is deemed to have not taken place
at all. 33 The Court's ruling in Suntay v. Cojuangco-Suntay3 4 lends credence:

The fundamental distinction between void and voidable marriages

is that a void marriage is deemed never to have taken place at all. x xx.

On the other hand, a voidable marriage, is considered valid and

produces all its civil effects, until it is set aside by final _judgment of a
competent court in an action for annulment. Juridically, the annulment
of a marriage dissolves the special contract as if it had never been entered
into but the law makes express provisions to prevent the effects of the
marriage frorn being totally wiped out. x x x

xxxx

Indeed, the terms "annul'' and ''null and void'' have different legal
connotations and implications. Amml means to reduce to nothing;
annihilate; obliterate; to rnake void or of no effect; to nullify; to abolish; to
do away with whereas null and void is something that does not exist from
the beginning. A marriage that is annulled presupposes that it subsists
but later ceases to have legal effect when it is terminated through a
court action. But in nullifying a marriage, the court simply declares,~
status or condition which already exists from the very beginning.·')
(Emphasis supplied; italics in the original)

The fourth element of Bigamy also requires that the second or subsequent
marriage must be likewise valid and not void ab initio. It must have all the
essential requisites of a valid marriage were it not only for the existence of the
first or prior marriage. 36 To reiterate, under Article 349 of the RPC, Bigamy is
committed by contracting two valid marriages. Hence, if the second marriage
is void ab initio for grounds other than the subsistence of the first marriage
(e.g., lack of a marriage license), then the crime of Bigamy also does not arise.

30 The second or subsequent marriage must have all the requisites of a valid marriage other than existence of
the first marriage.
31 Emphasis supplied.
32 Italics supplied.
33 NiFialv. Bayadog, G.R. No. 133778, March 14, 2000, 328 SCRA 122.
34 G.R. No. 132524, Dec~mber 29, 1998, 300 SCRA 760.
35 Id at 770-771.
3!, S~e People v. Mora Dumpo, supra note 5, at 248; Manuel v. People, G.R. No. 165842, November 29,
2005, 476 SCRA 46 l, 477.
 Concurring Opinion 6 G.R. No. 220149

The nullity of a void ab initio marriage, whether pertaining to the first or

subsequent marriage, is undoubtedly a valid defense in a prosecution for
Bigamy because void marriages are not covered or penalized under Article 349
of the RPC. What Article 349 contemplates is a situation where a person, whose
marriage is valid or at least voidable, contracts a second or subsequent valid
marriage without securing first a judicial decree of annulment of his or her
former marriage.

Conversely, when the first or prior marriage was annulled by a competent

couii before the subsequent marriage was celebrated or when the former
marriage is void ab initio or when the second or subsequent marriage is void
on grounds other than the existence of the first marriage, the crime of Bigamy
is not committed. As such, the accused must be acquitted of Bigamy because
his acts are not punishable under Article 349 of the RPC. The acquittal of an
accused in these cases does not render the law on bigamy nugatory. On the
contrary, the court, in fact, gives life to the law by obeying its mandate and
applying it only in cases clearly embraced by it. It must be remembered that no
act can be pronounced criminal which is not clearly made so by statute; so, too,
no person who is not clearly within the terms of a statute can be brought within
thern. 37

In addition, the Court's quandary, in the previously discussed cases, of

allowing individuals who make a mockery of the sanctity of marriage by
deliberately contracting multiple void ab initio marriages to easily escape the
consequences of their illegal acts is more apparent than real. The Court in these
cases overlooked Article 350 of the RPC. As correctly pointed out in the
ponencia, while these deliberate acts may not be covered under A1iicle 349 of
the RPC, they are nonetheless punishable under Article 350 of the RPC, 38 which
provides:

ART. 350. Nfarriage contracted against provisions of lcrws. -The

penalty of prisidn correccional in its medium and maximum periods shall
be imposed upon any person who, without being included in the
provisions of the next proceeding article, shall contract marriage
knowing that the requirements of the law have not been complied -with or
that the marriage is in disregard of a legal impediment.

If either of the contracting parties shall obtain the consent of the

other by means of violence, intimidation or fraud, he shall be punished by
the maximum period of the penalty provided in the next preceding
paragraph. (Emphasis and italics supplied)

That Article 350 expressly penalizes the act of knowingly contracting

marriage without the requirements of law or in disregard of a legal impediment
- which essentially includes void ab initio marriages - reinforces the fact that
Article 349 only applies to valid or at least voidable marriages. Stated
differently, the act of knowingly contracting multiple void ab initio marriages

37
Peoplev. Atop, G.R. Nos. 124303-05, February 10, 1998, 286 SCRA 157, 170-171.
38
Ponencia, pp. 30-31.
 Concurring Opinion 7 G.R. No. 220149

is clearly a violation of Article 350, but not considered a crime of Bigamy under
Article 349 of the RPC.

A separate judicial declaration is

not indispensable in proving the
defense of absolute nullity of a void
marriage. The absolute nullity of a
marriage may be determined by the
court in the same criminal
proceeding.

Having established that the nullity of a void ab initio marriage is a valid

defense in Bigamy, the question now is this: Is a separate judicial decree of
nullity necessary before an accused may raise such defense in a Bigamy case?

My answer is no. An accused may raise the nullity of his or her void
marriage in the same criminal proceeding and the criminal court shall have
jurisdiction to rule on the issue as it is determinative of the guilt or innocence
of the accused.

As discussed, void and voidable marriages are not identical. Unlike valid
or voidable maiTiage, a void ab initio marriage is inexistent and no judicial
decree is necessary to establish its invalidity. The nullity of a void ab initio
matTiage may be attacked directly by filing an action attacking the validity
thereof or collaterally in any proceeding where the issue of its validity is
essential to the resolution of the case. The Court in a catena of cases has been
very clear about this distinction.

In Nifzal v. Bayadog, 39 the Comi clarified that:

xx x Voidable and void marriages are not identical. A marriage

that is annullable is valid until otherwise declared by the court;
whereas a marriage that is void ab initio is considered as having never
to have taken place and cannot be the source of rights. The first can be
generally ratified or confirmed by free cohabitation or prescription while
the other can never be ratified. A voidable marriage cannot be assailed
collaterally except in a direct proceeding while a void marriage can be
attacked collatcraHy. xx x40 (Emphasis supplied and italics in the original)

Similarly, in De Castro v. Assidao-De Castro, 41 the Court held that "[t]he

validity of a void marriage may be collaterally attacked x x x in a suit not
directly instituted to question the validity of said marriage, so long as it is
essential to the determination of the case. However, evidence must be adduced,
testimonial or documentary, to prove the existence of grounds rendering such
a marriage an absolute nullity." 42 Again, in Castillo v. De Leon-Castillo, 43 the

39
Supra note 33.
40
Id. at 134.
41
G.R. No. 160 i 72, February 13, 2008, 545 SCRA 162.
42
Id.at 169-170.
41
G.R No. l89607, April l8, 2016, 789 SCRA 503.
 Concurring Opinion 8 G.R. No. 220149

Court reiter~ted tha! "being nonexistent, a void marriage can be collaterally

attacked, while a v01dable marriage cannot be collaterally attacked[.]" 44

Accordingly, a separate judicial decree of nullity is not necessary before

~n ac~used may raise the nullity of his marriage as a defense in a prosecution
for Bigamy. An accused may raise the nullity of his void marriage in the same
criminal proceeding by presenting testimonial and documentary evidence
proving the nullity of his or her marriage, and the criminal court shall have
jurisdiction to rule on the issue because its resolution will determine the guilt
or innocence of the accused.

Moreover, to require a separate judicial declaration of nullity for void ab

initio marriages would blur the distinction created by law between A1iicle 349
and Article 350 of the RPC. To reiterate, Article 349 penalizes the act of
contracting two valid marriages; while Article 3 50 covers acts of deliberately
contracting void ab initio marriages. By requiring a separate judicial decree,
instead of the same criminal court resolving the issue, the accused runs the risk
of being found guilty of Article 349 on the basis solely of his failure to secure
a separate judicial decree of nullity of his void maniage, when the acts he
actually committed may have been punishable under Article 350.

In this regard, the Court in the earlier cases of Mendoza and Aragon
rightly applied the plain language of Article 349 when it ruled that the absolute
nullity of a prior marriage void ab initio is a valid defense in a criminal case for
Bigamy and "no judicial decree is necessary to establish its invalidity, as
distinguished from mere annullable marriages." 45 Similarly, in the cases of
Mora Dumpo and De Lara, the Court was correct in acquitting the accused of
Bigamy because it was proven during trial that the second maniage was void
ab initio on grounds other than the existence of the first marriage. In these cases,
the Court correctly recognized that a void ab initio marriage is not covered by
A1iicle 349 of the RPC and a separate judicial declaration is not indispensable
to prove its nullity.

However, as earlier discussed, in succeeding cases, the Court took a 180-

degree turn where the Court completely disregarded the plain and clear
language of Article 349 of the RPC and ruled that a prior judicial decree of
nullity of marriage void ab initio is necessary before a person may subsequently
marry; otherwise, he runs the risk of being held liable for Bigamy under Article
349 of the RPC. This pronouncement of the Court was generally premised on
the erroneous assumption that Article 40 of the Family Code had effectively
abandoned the rulings in lvfendoza, Aragon, Mora Dumpo and De Lara.
However, A1iicle 40 of the Family Code did not in any way amend or repeal
the elements ofBigamy, as defined and penalized under Article 349 of the RPC.
Consequently, its enactment could not have overturned Mendoza, Aragon,

44
Id. at 512, citing EDUARDO P. CAGUIOA, COMMENTS AND CASES ON CIVIL LAW (CIVIL CODE OF THE
PfllUPPINES), Vol. I, p. 154 (Third Edition, \967).
45
People v. Aragon, supra note 4, at 1035, citing People v. Mendoza, supra note 3, at 847.
 Concurring Opinion 9 G.R. No. 220149

Mora Dumpo and De Lara, where the Court simply applied the plain language
of the penal code.

Article 40 of the Family Code

applies only for purposes of
remarriage.

First, there is no indication at all from the plain language of Article 40

that the elements of Bigamy were repealed or amended so as to include void ab
initio marriages as among those penalized by Article 349 and no longer covered
under A1iicle 350 of the RPC. On the contrary, what is apparent is that the
judicial declaration of nullity of a previous void marriage, as required under
Article 40 of the Family Code, is of limited application - i.e., it is only
necessary for purposes of remarriage, viz.:

Article 40. The absolute nullity of a previous marriage may be

invoked for purposes of remarriage on the basis solely of a final judgment
declaring such previous marriage void. (Emphasis, italics and underscoring
supplied)

Thus, as I see it, what A1iicle 40 simply means is that if a person wants
to contract a subsequent marriage and for that marriage to be recognized under
the Jaw as valid, he must first secure a judicial decree declaring the previous
marriage void ab initio. Otherwise, the subsequent marriage is null and void. 46
The purpose therefore of a prior judicial decree of nullity, under Article 40, was
only to establish the validity of the subsequent marriage, and not to hold one
criminally liable for Bigamy for failure to secure the same.

Second, Article 40 of the Family Code does not totally prohibit a

collateral attack against a void ab initio marriage.

In Domingo v. Court of Appeals, 47 the Court had the opportunity to

interpret Article 40 of the Family Code. Parsed from the committee
deliberations, the Court in Domingo clarified that a collateral attack against a
void marriage may be permitted for purposes other than remarriage.

The Family Law Revision Committee and the Civil Code Revision
Committee which drafted what is now the Family Code of the Philippines
took the position that parties to a marriage should not be allowed to assume
that their marriage is void even if such be the fact but must first secure a
judicial declaration of the nullity of their marriage before they can be
allowed to marry again. This is borne out by the following minutes of the
152nd Joint Meeting of the Civil Code and Family Law Committees where
the present Article 40, then Art. 39, was discussed.

"B. Article 39. -

46
See Article 53 of the Family Code.
Article 53. Either of the former spouses may mmTy again after complying with the
requirements of the immediately preceding Article; otherwise, the subsequent mmTiage shall be null
and void.
47
G.R. No. I 04818, September 17, 1993, 7.26 SCRA 572.
Concurring Opinion 10 G.R. No. 220149

. The absolute nullity of a marriage may be

mvoked only on the basis of a final judgment
declaring the marriage void, except as provided in
Article 41.

Justice Caguioa remarked that the above provision

should include not only void but also voidable marriages.
He then suggested that the above provision be modified as
follows:

The validity of a man"iage may be invoked

only ...

Justice Reyes (J.B.L. Reyes), however, proposed

that they say:

The validity or invalidity of a marriage may

be invoked only ...

On the other hand. Justice Puno suggested that they

say:

The invalidity of a marriage may be

invoked only ...

Justice Caguioa explained that his idea is that one

cannot determine for himselfwhether or not his marriage
is valid and that a court action is needed. Justice Puno
accordingly proposed that the provision be modified to
read:

The invalidity of a marriage may be

invoked only on the basis of a final judgment
annulling the maniage or declaring the marriage
void, except as provided in Article 41.

Justice Caguioa remarked that in annulment, there

is no question. Justice Puno, however, pointed out that,
even if it is a judgment of annulment, they still have to
produce the judgment.

Justice Caguioa suggested that they say:

The invalidity of a marriage may be

invoked only on the basis of a final judgment
declaring the marriage invalid, except as provided
in Article 41.

Justice Puno raised the question: When a maniage

is declared invalid, does it include the annulment of a
marriage and the declaration that the marriage is void?
Justice Caguioa replied in the affirmative. Dean Gupit
added that in some judgments, even if the marriage is
annulled, it is declared void. Justice Puno suggested that
this matter be made clear in the provision.
Concurring Opinion 11 G.R. No. 220149

Prof Baviera remarked that the original idea in the

provision is to require first a judicial declaration of a void
marriage and not annullable marriages, with which the
other members concurred. Judge Diy added that
annullable maniages are presumed valid until a direct
action is filed to annul it, which the other members
affirmed. Justice Puno remarked that if this is so, then the
phrase 'absolute nullity' can stand since it might result in
confusion if they change the phrase to 'invalidity' if what
they are referring to in the provision is the declaration that
the marriage is void.

Prof. Bautista commented that they will be doing

away with collateral defense as well as collateral attack.
Justice Caguioa explained that the idea in the provision is
that there should be a final judgment declaring the
marriage void and a party should not declare for himself
whether or not the marriage is void, which the other
members affirmed. Justice Caguioa added that they are,
therefore, trying to avoid a collateral attack on that
point. Prof. Bautista stated that there are actions which
are brought on the assumption that the marriage is
valid. He then asked: Are they depriving one of the
right to raise the defense that he has no liability
because the basis of the liability is void? Prof. Bautista
added that they cannot say that there will be no
judgment on the validity or invalidity of the marriage
because it will be taken up in the same proceeding. It
will not be a unilateral declaration that it is a void
marriage. Justice Caguioa saw the point of Prof.
Bautista and suggested that they limit the provision to
remarriage. He then proposed that A1iicle 39 be reworded
as follows:

The absolute nullity of a marriage for

purposes ofremarriage may be invoked only on the
basis of final judgment ...

Justice Puno suggested that the above be modified

as follows:

The absolute nullity of a previous marriage

may be invoked for purposes of establishing the
validity of a subsequent marriage only on the basis
of a final judgment declaring such previous
marriage void, except as provided in Article 41.

Justice Puna later modified the above as follows:

For the purpose of establishing the validity

of a subsequent marriage, the absolute nullity of a
previous marriage may only be invoked on the
basis of a final judgment declaring such nullity,
except as provided in Article 41.
 Concurring Opinion 12 G.R. No. 220149

Justice Caguioa commented that the above

provision ~s too broad and will not solve the objection of
Prof. Bautista. He proposed that they say:

For the purpose of entering into a

subsequent marriage, the absolute nullity of a
previous marriage may only be invoked on the
basis of a final judgment declaring such nullity,
except as provided in Article 41.

Justice Caguioa explained that the idea in the

above provision is that if one enters into a subsequent
marriage without obtaining a final judgment declaring
the nullity of a previous marriage, said subsequent
marriage is void ab initio.

After further deliberation, Justice Puno suggested

that they go back to the original wording of the provision
as follows:

The absolute nullity of a previous marriage

may be invoked for purposes ofremaITiage only on
the basis of a final judgment declaring such
previous marriage void, except as provided in
A1iicle 41."

xxxx

That Article 40 as finally fommlated included the significant clause

denotes that such final judgment declaring the previous marriage void need
not be obtained only for purposes of remarriage. Undoubtedly, one can
conceive of other instances where a party might well invoke the absolute
nullity of a previous marriage for purposes other than remarriage, such as
in case of an action for liquidation, partition, distribution and separation of
property between the erstwhile spouses, as well as an action for the custody
and support of their common children and the delivery of the latters'
presumptive legitimes. In such cases, evidence needs [to] be adduced,
testimonial or documentary, to prove the existence of grounds rendering
such a previous marriage an absolute nullity. These need not be limited
solely to an earlier final judgment of a court declaring such previous
marriage void. x x x 48 (Citations omitted; emphasis and underscoring
supplied; italics in the original)

It is apparent from the foregoing disquisition among Justice Puno, Justice

Caguioa, and Prof. Bautista that Article 40 was not intended to repeal the rule
that a void ab initio marriage is subject to a collateral attack. In fact, the framers
recognized that there are actions where the absolute nullity of marriage may be
raised as a defense to avoid liability and they would not want to deprive a
person of his right to raise such defense, or a court of its jurisdiction to rule on
the issue. Thus, the framers opted to limit Article 40 to remarriage only.
Consequently, for purposes other than remarriage, where the absolute nullity of
a void ab initio marriage is raised, the cmni may rule on such issue and the

48
Id. at 579-584.
 Concurring Opinion 13 G.R. No. 220149

absolute nullity of a such void marriage may be proven by other evidence both
testimonial and documentary.

In Nifial v. Bayadog, 49 the Court, reading together the provisions of the

Civil Code and Article 40 of the Family Code, also recognized that a void ab
initio marriage is subject to a collateral attack even in a criminal case, viz.:

Jurisprudence under the Civil Code states that no judicial decree is

necessary in order to establish the nullity of a marriage. "A void marriage
does not require a judicial decree to restore the parties to their original rights
or to make the marriage void but though no sentence of avoidance be
absolutely necessary, yet as well for the sake of good order of society as for
the peace of mind of all concerned, it is expedient that the nullity of the
marriage should be ascertained and declared by the decree of a court of
competent jurisdiction." "Under ordinary circumstances, the effect of a
void marriage, so far as concerns the conferring of legal rights upon the
parties, is as though no marriage had ever taken place. And therefore, being
good for no legal purpose, its invalidity can be maintained in any
proceeding in which the fact of marriage may be material, either direct or
collateral, in any civil court between any parties at any time, whether before
or after the death of either or both the husband and the wife, and upon mere
proof of the facts rendering such marriage void, it will be disregarded or
treated as non-existent by the courts." It is not like a voidable marriage
which caimot be collaterally attacked except in direct proceeding instituted
during the lifetime of the parties so that on the death of either, the marriage
cannot be impeached, and is made good ab initio. But Article 40 of the
Family Code expressly provides that there must be a judicial declaration of
the nullity of a previous marriage, though void, before a party can enter into
a second man-iage and such absolute nullity can be based only on a final
judgment to that effect. For the same reason, the law makes either the action
or defense for the declaration of absolute nullity of marriage
imprescriptible. Corollarily, if the death of either party would extinguish
the cause of action or the ground for defense, then the same cannot be
considered imprescriptible.

However, other than for purposes of remarriage, no _judicial

action is necessary to declare a marriage an absolute nullity. For other
purposes, such as but not limited to determination of heirship,
legitimacy or illegitimacy of a child, settlement of estate, dissolution of
property regime, or a criminal case for that matter, the court may pass
upon the validity of marriage even in a suit not directly instituted to
question the same so long as it is essential to the determination of the
case. This is without prejudice to any issue that may arise in the case. When
such need arises, a final judgment of declaration of nullity is necessary even
if the purpose is other than to remarry. The clause "on the basis of a final
judgment declaring such previous marriage void" in Article 40 of the
·Family Code connotes that such final judgment need not be obtained only
for purpose ofremarriage. 50 (Citations omitted; emphasis and underscoring
supplied)

49
Supra note 33
50
Id. at 135-136.
 Concurring Opinion 14 G.R. No. 220149

Again, in Carino v. Carino, 51 the Court, reiterating Domingo and Nina!,

held:

Under Article 40 of the Family Code, the absolute nullity of a

previous marriage may be invoked for purposes of remarriage on the basis
solely of a final judgment declaring such previous maiTiage void. Meaning,
where the absolute nullity of a previous marriage is sought to be invoked
for purposes of contracting a second marriage, the sole basis acceptable in
law, for said projected marriage to be free from legal infirmity, is a final
judgment declaring the previous marriage void. However, for purposes
other than remarriage, no judicial action is necessary to declare a marriage
an absolute nullity. For other purposes, such as but not limited to the
determination of heirship, legitimacy or illegitimacy of a child,
settlement of estate, dissolution of property regime, or a criminal case
for that matter, the court may pass upon the validity of marriage even
after the death of the parties thereto, and even in a suit not directly
instituted to question the validity of said marriage, so long as it is
essential to the determination of the case. In such instances, evidence
must be adduced, testimonial or documentary, to prove the existence
of grounds rendering such a previous marriage an absolute nullity.
These need not be limited solely to an earlier final judgment of a court
declaring such previous marriage void.

xxxx

In Domingo v. Court ofAppeals, however, the Court, construing

Article 40 of the Family Code, clarified that a prior and separate
declaration of nullity of a marriage is an all important condition
precedent only for purposes of remarriage. That is, if a party who is
previously married wishes to contract a second marriage, he or she has to
obtain first a judicial decree declaring the first marriage void, before he or
she could contract said second marriage, otherwise the second marriage
would be void. The same rule applies even if the first marriage is patently
void because the parties are not free to determine for themselves the validity
or invalidity of their marriage. However, for purposes other than to
remarry, like for filing a case for collection of sum of money anchored
on a marriage claimed to be valid, no prior and separate iudicial
declaration of nullity is necessary. All that a party has to do is to present
evidence, testimonial or documentary, that would prove that the marriage
from which his or her rights f1ow is in fact valid. Thereupon, the court, if
material to the determination of the issues before it, wili rule on the status
of the marriage involved and proceed to determine the rights of the parties
in accordance with the applicable laws and jurisprudence. Thus, in Nina! v.
Bayadog, the Court explained:

[T]he court may pass upon the validity of marriage even

in a suit not directly instituted to question the same so long as it
is essential to the determination of the case. This is without
prejudice to any issue that may arise in the case. When such need
arises, a final judgment of declaration of nullity is necessary
even if the purpose is other than to remarry. The clause "on the
basis of a final judgment declaring such previous marriage void"
in Article 40 of the Family Code connoted that such final

51 G.R. No. 132529, February 2, 2001, 351 SCRA 127.

 Concurring Opinion 15 G.R. No. 220149

judgment need not be obtained only for purpose of remarriage. 52

(Citations omitted; emphasis and underscoring supplied)

. Based on the foregoing, Article 40 of the Family Code was clearly not
mtended to amend or repeal the crime of Bigamy as defined and penalized
under Article 349 of the RPC. It was also not intended to totally prohibit a
collateral attack against a void ab initio marriage. To reiterate, Article 40
applies only for purposes of remarriage, of establishing the validity of a
subsequent marriage. Therefore, notwithstanding the enactment of Article 40,
a void ab initio marriage remains to be a valid defense in a Bigamy case and
a prior and separate judicial declaration of nullity is not indispensable to
establish the same. An accused in the very same criminal proceeding may
raise the nullity of his or her marriage as void ab initio and adduce testimonial
and documentary evidence showing the existence of grounds proving said
marriage to be a nullity.

In sum, I join the ponencia in abandoning previous jurisprudence where

the Comi completely disregarded the nullity of a marriage void ab initio as a
valid defense in a prosecution for Bigamy. These rulings were based on an
oversight that Article 40 of the Family Code had modified or repealed Article
349 of the RPC. The clear text of the law and the deliberations thereof,
however, are clear that Article 40 of the Family Code was enacted only for
purposes of remarriage. It does not have any effect on the elements of the
crime of Bigamy, as defined and penalized under Article 349 of the RPC.

On the other hand, the Court's ruling in the earlier cases of Mendoza,
et al. - where the absolute nullity of a void marriage was recognized a valid
defense in Bigamy and that a prior or separate judicial decree is not
indispensable to prove the same - is not only in accord with the letter and
intent of the law, it is also consistent with the time-honored principle that all
penal laws must be liberally construed in favor of the accused.

For, it is a well-entrenched rule that penal laws are to be construed

strictly against the State and liberally in favor of the accused. They arc not
to be extended or enlarged by implications, intendments, analogies or
equitable considerations. They are not to be strained by construction
to spell out a new offense, enlarge the field of crime or multiply felonies.
Hence, in the interpretation of a penal statute, the tendency is to subject
it to careful scrutiny and to construe it with such strictness as to
safeguard the rights of the accused. If the statute is ambiguous and admits
of two reasonable but contradictory constructions, that which operates in
favor of a party accused under its provisions is to be preferred. The
urinciple is that acts in and of themselves innocent and lawful cannot
be held to be criminal unless there is a clear and unequivocal
~xpression of the legislative intent to make them such. Whatever is not
plainly within the provisions of a penal statute should be regarded as
without its intcndment.

52
Id. at I 3 1-139.
Concurring Opinion 16 G.R. No. 220149

The purpose of strict construction is not to enable a guilty person to

escape punishment through a technicality but to provide a precise definition
of forbidden acts. 53 (Emphasis· and underscoring supplied)

In fine, I vote to grant the petition. Considering that petitioner's first

marriage was proven as void ab initio, th~, rime o igamy was not
committed because the first element of the•, fense is 11is ing. Petitioner's
acquittal is therefore in order.
/

53 People v. Sullana, G.R. No. 228373, March 12, 2018, 858 SCRA 274, 28 9 .