G.R. No.
137110 August 1, 2000
Mercado vs Tan
FACTS:
Vincent
G. Mercado, while still being married to Thelma Oliva, contracted another
marriage with Ma. Consuelo Tan.
Tan filed
bigamy against Mercado and one month after the latter filed an action for
declaration of nullity of marriage against Oliva. The RTC decision declared the
marriage between Mercado and Oliva null and void.
ISSUE:
Whether
or not Mercado committed bigamy in spite of filing the declaration of nullity
of his first marriage.
RULING:
Yes.
Article
40 of the Family Code expressly requires
a judicial declaration of nullity of the previous marriage, as follows:
"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 marriage void."
A
declaration of nullity of marriage is now necessary before one can contract a
second marriage. Absent that declaration, one may be charged with and convicted of bigamy. Such
declaration is also necessary even if the earlier marriage is characterized by
statute "void."
In the
case at bar, Mercado was already married to Tan but did not file a declaration
of nullity of marriage with Oliva until Tan filed bigamy case. The crime had
already been consummated by then. To
file a petition to have his first marriage void after Tan charged him with
bigamy is not a defense in a bigamy charge.
