Bigamy may be committed by one person

What happens when you marry a person who is still legally married to another person?

Are you also liable for the crime of bigamy?

Bigamy is a crime punishable under Article 349 of the Revised Penal Code of the Philippines:

"The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings."

To guide you further, the elements of bigamy were enumerated in Lasanas v. People of the Philippines, GR 159031, June 23, 2014, where the Supreme Court, through Chief Justice Lucas Bersamin, said:

"The elements of the crime of bigamy are as follows:

(1) that the offender has been legally married;

(2) that the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he or she contracts a second or subsequent marriage; and

(4) that the second or subsequent marriage has all the essential requisites for validity.

Given the foregoing, one may be held liable for bigamy when the aforecited elements of the crime are present.

Yet, bigamy does not always entail the joint liability of two individuals.

As pronounced by the Supreme Court, through Associate Justice Salvador Esguerra, in the case of People of the Philippines v. Nepomuceno, Jr., GR L-40624, June 27, 1975:

"Appellant's contention that the crime of bigamy entails the joint liability of two persons who marry each other, while the previous marriage of one or the other is valid and subsisting is completely devoid of merit. Even a cursory scrutiny of Art. 349 of the Revised Penal Code will disclose that the crime of bigamy can be committed by one person who contracts a subsequent marriage while the former marriage is valid and subsisting. Bigamy is not similar to the crimes of adultery and concubinage, wherein the law (Art. 344, first and third pars., Revised Penal Code, and Sec. 4, Rule 110, Rules of Court) specifically requires that the culprits, if both are alive, should he prosecuted or included in the information. In the crime of bigamy, both the first and second spouses may be the offended parties depending on the circumstances, as when the second spouse married the accused without being aware of his previous marriage. Only if the second spouse had knowledge of the previous undissolved marriage of the accused could she be included in the information as a co-accused.

Bigamy is a public offense and a crime against status, while adultery and concubinage are private offenses and are crimes against chastity. In adultery and concubinage, pardon by the offended party will bar the prosecution of the case, which is not so in bigamy. It is, therefore, clear that bigamy is not similar to adultery or concubinage."

Thus, the offended party in the crime of bigamy may be the first or second spouse. The second spouse is an offended party if he or she has no knowledge of the previous undissolved marriage. Conversely, the second spouse can only be included in the information or complaint as co-accused in the crime of Bigamy if he or she had knowledge of the previous undissolved marriage at the time of their subsequent marriage.

Bigamy cannot be compared with Adultery or Concubinage because the latter are private offenses and classified as crimes against chastity, while the former is a public offense and is a crime against status.

Source: Manila Times

Divorce: Welcome to the 21st century

In a historic legislative move, the House of Representatives has passed House Bill (HB) 9349, also known as the “Absolute Divorce Act,” which aims to allow absolute divorce as a legal recourse for Filipino couples trapped in irreparably broken marriages.

For the longest time, the Philippines, where 80 percent of the population is Catholic, is known as the only country in the world — other than the Vatican — where divorce remains illegal.

For pro-divorce advocates in the Philippines, the absence of divorce as a legal option significantly hinders couples from severing ties and, most crucially, escaping violent and abusive relationships.

Although couples seeking to end their marriage can try annulment or declaration of marriage invalidity from courts, the process is slow and costly — starting from at least P100,000 — with no guaranteed outcome.

If the marriage was solemnized in church, the process of annulment could take even decades.

In some cases, couples who are desperate for quicker resolutions fall victim to online scams. Other couples, meanwhile, opt to live separately while remaining legally bound in long-dead marriages.

In a 131-109-20 vote, the House of Representatives approved on third and final reading the proposed Absolute Divorce Act, a bill allowing absolute divorce in the country.

The last time a House divorce bill hurdled final reading was in the 17th Congress, during the first half of former President Rodrigo Duterte’s administration.

However, the measure languished in the Senate.

The current Senate version of the divorce bill, filed by Senators Risa Hontiveros, Raffy Tulfo, Robin Padilla, Pia Cayetano, and Imee Marcos, has already been approved at the committee level last year.

What is the divorce bill all about?

Section 2 of the proposed Absolute Divorce Act states that while the government continues to value and protect marriage, it also provides a way for couples in “irreparably failed marriages” to get a divorce.

It stressed that the measure aims to help children avoid the stress of their parents’ constant fighting and gives divorced individuals the chance to remarry.

Under the Absolute Divorce Act, the following are considered grounds for absolute divorce:

• Physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner.

• Physical violence or moral pressure to compel the petitioner to change religious or political affiliation.

• Attempt of the respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution or connivance in such corruption or inducement.

• Final judgment sentencing the respondent to imprisonment of more than six (6) years, even if pardoned.

• Drug addiction, habitual alcoholism, or chronic gambling of the respondent

• Homosexuality of the respondent.

• Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad.

• Marital infidelity or perversion or having a child with another person other than one’s spouse during the marriage, except when upon the mutual agreement of the spouses, a child is born to them through in vitro fertilization or a similar procedure or when the wife bears a child after being a victim of rape.

• Attempt by the respondent against the life of the petitioner, a common child or a child of the petitioner.

• Abandonment of petitioner by respondent without justifiable cause for more than one (1) year.

• When the spouses are legally separated by judicial decree for more than two (2) years, either spouse can petition the proper Family Court for an absolute divorce based on said judicial decree of legal separation.

The proposed Absolute Divorce Act not only allows spouses in hopelessly broken marriages to obtain a divorce through judicial procedures, but also addresses several key aspects:

• Includes provisions to ensure the best interests of children are protected, including care, custody, and support.

• Supports women’s rights by helping them escape abusive relationships and regain their dignity and self-esteem.

• Ensures that divorce proceedings are affordable and quick, especially for those needing court assistance.

• Introduces a sixty-day period for reconciliation efforts, except in cases involving violence.

• Recognizes valid foreign and church divorces without requiring additional legal processes.

• Provides court-appointed social workers, psychologists, and legal counsel to assist petitioners.

• Requires the Department of Social Welfare and Development (DSWD) to implement programs that strengthen marriage and family life.

What the divorce bill is not about

The proposed Absolute Divorce Act does not eliminate marriage; rather, it seeks to protect and preserve marriage while providing a remedy only for failed marriages, especially those that involve domestic or marital abuse.

While it offers divorce or legal separation as options for irreparably broken marriages, it does not promote divorce as the first choice. Section 12 of HB 9349 mandates a 60-day cooling-off period, during which the Family Court must make every effort to reunite and reconcile the spouses after the filing of the divorce petition.

“Upon expiration of the cooling-off period without the parties having reconciled, the court shall immediately commence trial and is mandated to decide the petition within one (1) year after the lapse of the sixty-day cooling-off period,” Section 12 of HB 9349 stated.

However, the cooling-off period does not apply in cases that involve acts of violence against women and their children (VAWC) under Republic Act No. 9262 or when there is an attempt against the life of the other spouse, a common child, or the petitioner’s child. It is also not required for petitions filed under summary judicial proceedings.

The proposed Absolute Divorce Act also ensures that divorce is:

• Not instant or automatic since it requires proper judicial proceedings and compliance with legal protocols.

• Attentive to children’s needs and ensures that the children’s rights and interests are protected during and after divorce.

• Not free for all. It ensures that the grant of absolute divorce is affordable and fees are waived only for court-assisted petitioners who qualify.

• Legally supervised to prevent collusion and coercion in divorce filings.

• Not disregarding property rights, ensuring the division and protection of conjugal properties and children’s inheritances.

In a statement, Albay Rep. Edcel Lagman, the author of HB 9349, assured critics that a divorce law would not destroy marriages, emphasizing that divorce does not sever a marriage that has already long been dead.

“What will be before the Family Court is a cadaver of a marriage,” he said.

“Divorce is not the monster plaguing a marriage. It is marital infidelity, abandonment, violence, and cruelty, among others, which are the devils that destroy marriages,” he added.

Filipinos’ view on legalization of divorce

A 2017 survey by Social Weather Stations (SWS) revealed that five in 10 Filipinos believe that separated and irreconcilable married couples should be allowed to divorce and remarry.

The survey asked respondents whether “married couples who have already separated and cannot reconcile anymore” should be allowed to divorce “so that they can get legally married again.”

Of those surveyed, 53 percent agreed with the statement, with 30 percent saying they “strongly agree” and 23 percent “somewhat agree.” On the other hand, 32 percent disagreed, including 10 percent who “somewhat disagree” and 22 percent who “strongly disagree.”

Data from SWS also indicated a significant increase in the percentage of Filipinos who support making divorce legal for married couples unable to reconcile.

In 2005, 43 percent of adults (24 percent strongly agree, 19 percent somewhat agree) supported this idea. By 2011, this had risen to 50 percent (27 percent strongly agree, 23 percent somewhat agree).

The trend continued upward, peaking in 2014 with 60 percent (38 percent strongly agree, 22 percent somewhat agree). Though there was a slight decline in 2015 to 48 percent, support remained strong, with 53 percent in 2016 and 53 percent in 2017.

According to data from Statista, Filipinos, when surveyed, highlighted several reasons for supporting the legalization of divorce in the Philippines. These reasons include:

• 51 percent believe divorces can solve marital problems.

• 18 percent think divorce gives separated individuals a chance to remarry.

• 9 percent notes that divorce is globally accepted.

• 9 percent find divorce to be less expensive than annulment.

• 6 percent argue that we are living in modern times, implying the need for updated laws.

The data also indicated that 7 percent of surveyed Filipinos believe that no one should ever get a divorce.

‘Anti-family, anti-marriage, anti-children’?

In a statement, the CBCP expressed disappointment over the House of Representatives’ approval of the divorce bill.

Addressing concerns about the measure, ACT Teachers Rep. France Castro stressed that the bill “would not destroy the sanctity of marriage”. Rather, it acknowledges that “some marriages just simply get to a point where it becomes irreparable.”

Divorce as a ‘life raft’

According to Lagman, the measure is not meant for everyone, as the vast majority of Filipino marriages are happy, lasting, and loving. These couples, he said, do not need the divorce law.

Castro explained that the measure provides a “much-needed option for women and families trapped in broken marriages, particularly those involving violence.”

According to the Philippine Statistics Authority, approximately one in six Filipino women aged 15-49 have experienced physical, sexual, or emotional violence from their current or most recent husband or intimate partner.

“It is easy to paint Filipino families as perfect, devoid of any form of conflict and abuse. But in reality, political, economic, and social realities strain marital relationships,” said Gabriela Rep. Arlene Brosas.

“Many women face inequalities and violence that undermine the ideals of marriage,” Brosas continued.

Dr. Anna Cristina Tuazon, a psychologist and associate professor at the University of the Philippines (UP) Diliman, believes that divorce isn’t what destroys happy marriages.

Instead, it serves as a life raft for those trapped in marriages that have long been dead.

Tuazon compared the absence of legal divorce to a building without emergency exits, stressing the lack of an essential option for those in desperate situations.

“Imagine there’s a fire, but the building owner didn’t put in emergency exits because he ‘does not believe in it’ and that you were expected to keep managing the fire, not escape it,” she said.

“Imagine still a building infested with toxic mold but that you were not permitted to evacuate because others couldn’t fathom why you don’t have the willpower to tough it out,” she added.

“Most people hopefully will not need to use emergency exits in their lifetime. And you’ll be glad it’s there when you need it,” she said.

She also explained that to ensure the success of a marriage, couples should be given resources and support to help them adapt rather than simply being mandated to stay together.

“If you love someone, you don’t chain them to you; them choosing to stay is a greater sense of emotional security than locking them in a divorce-less marriage,” said Tuazon.

Source: Inquirer

Effects of legal separation

1. Do we have divorce in the Philippines?

Divorce may be classified into two — Absolute and Relative. In our jurisdiction, only relative divorce or legal separation is allowed, which involves nothing more than the bed-and-board separation of the spouses (Lapuz Sy vs. Eufemio, G.R. No. L-30977, January 31, 1972). A decree of legal separation shall entitle the spouses to live separately from each other, without severing their marriage bonds (Article 62, Family Code).

2. What are the grounds for Legal Separation?

The following are the grounds for legal separation which may or may not exist at the time of the marriage ceremony:

(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; 

(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;

(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;

(5) Drug addiction or habitual alcoholism of the respondent;

(6) Lesbianism or homosexuality of the respondent;

(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;

(8) Sexual infidelity or perversion;

(9) Attempt by the respondent against the life of the petitioner; or

(10) Abandonment of petitioner by respondent without justifiable cause for more than one year (Article 55, Family Code).

3. Within what period must a Petition for Legal Separation be filed?

As a general rule, an action for legal separation shall be filed within five years from the time of the occurrence of the cause (Article 57, Family Code).

4. If I file an action for Legal Separation, will I still be entitled to receive support from my spouse during the pendency of the case?

Yes, you shall be entitled to receive support from your spouse, which shall be in accordance with adequate provisions of the written agreement with your spouse. In the absence of an agreement, the Court will provide for support during the pendency of the case (Article 49 in relation to Article 62, Family Code).

5. Can I remarry after my Legal Separation is granted?

No, legal separation is merely the separation of spouses as to their bed and board. While it permits the partial suspension of marital relations, the marriage bond still exists as the marital bonds are not severed (Lapuz Sy vs. Eufemio, G.R. No. L-30977, January 31, 1972).

6. Who can have custody of the child once a petition for legal separation is granted?

The custody of the minor children shall be awarded to the innocent spouse, subject to the choice of the child over seven (7) years of age, unless the parent chosen is unfit. No child under seven years of age shall be separated from the mother unless the court finds compelling reasons to order otherwise (Article 63 in relation to Article 213, Family Code of the Philippines). Similarly, Section 6 of Rule 99 of the Rules of Court permits a child over ten (10) years of age to choose which parent he prefers to live with, unless the parent chosen is unfit to take care of the child by reason of moral depravity, habitual drunkenness, incapacity or poverty.  The choice of a child over seven (7) years of age and over ten (10) years of age shall be considered in custody disputes only between married parents because they are, pursuant to Article 211 of the Family Code, accorded joint parental authority over the persons of their common children (Masbate vs. Relucio, G.R. No. 235498, 30 July 2018).

7. Can I file for Legal Separation for being punched by my spouse every time we argue?

Yes, repeated physical violence is one of the provided grounds for legal separation (Article 55, Family Code). 

8. Can I file for Legal Separation after catching my spouse for the first time having sexual intercourse with another person?

Yes, sexual infidelity or perversion is a ground for filing a petition for legal separation (Article 55[8], Family Code). Adultery, punishable under Article 333 of the Revised Penal Code, is not a continuing crime; it is consummated at every moment of carnal knowledge. Hence, every sexual act is a ground for legal separation (People vs. Zapata, G.R. No. L-3047, 16 May 1951). 

9. What are the instances wherein the court could deny a petition for legal separation?

The court shall deny the petition for legal separation on any of the following grounds:

(1) The aggrieved party has condoned the offense or act complained of;

(2) The aggrieved party has consented to the commission of the offense or act complained of;

(3) There is connivance between the parties  in committing the offense or act constituting the ground for legal separation;

(4) Both parties have given ground for legal separation

(5) There is collusion between the parties to obtain the decree of legal separation; or 

(6) The action is barred by prescription (Article 56, Family Code).

10. Can I revoke the designation of my guilty spouse as my beneficiary in my insurance policy upon the grant of my petition for legal separation?

After the issuance of the Decree of Legal Separation, the innocent spouse may revoke the designation of the offending spouse as a beneficiary in any insurance policy even if such designation be stipulated as irrevocable. The revocation or change shall take effect upon written notification to the insurer (Section 22, A.M. No. 02-11-11-SC).

11. Can I still recover property donated to my guilty spouse upon the grant of our petition for legal separation?

Yes, within five (5) years from the date the decree of legal separation has become final, the innocent spouse may file a petition under oath in the same proceeding for legal separation to revoke the donations he/she made in favor of the offending spouse.  If such donations involve property, such revocations should be recorded in the Register of Deeds in the places where the properties are located. (Article 64, Family Code; Section 22, A.M. No. 02-11-11-SC)

12. Do I have to use my husband’s surname after the decree for legal separation?

The Civil Code of the Philippines, Article 372, mandates that when the legal separation has been granted, the wife shall continue using her name and surname employed before the legal separation. (Laperal vs. Republic, G.R. No. L-18008, 30 October 1962). You may still use of your husband’s surname even after you are legally separated, if the same was your customary surname prior to issuance of the decree.

13. What will be the effect of our reconciliation to the legal separation proceeding? 

If the legal separation is still pending, it shall be terminated at whatever stage it is. If the spouses reconciled after the issuance of the decree of legal separation, the final decree of legal separation shall be set aside, but the separation of property and forfeiture of any of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime (Article 66, Family Code). 

Source: Manila Times