Article 349 of the Revised Penal Code: Bigamy

In Pulido v. People (2021), the full Supreme Court (En Banc) listed four things the prosecution must prove:

1. The accused was legally married.
2. The first marriage has not been legally dissolved or, if the spouse is absent, the absent spouse could not yet be presumed dead.
3. The accused contracted a second or subsequent marriage.
4. The second marriage has all the essential requisites for validity, apart from the existing first marriage.

If one of these is not proven, there is no bigamy.

For years, the Supreme Court held that a person who remarried without first getting a court declaration that the first marriage was void was guilty of bigamy. Mercado v. Tan (2000) stated it this way: "One who enters into a subsequent marriage without first obtaining such judicial declaration is guilty of bigamy."

In Pulido, the Court abandoned that line of cases. It held: "We hold that a judicial declaration of absolute nullity is not necessary to prove a void ab initio prior and subsequent marriages in a bigamy case." A declaration of nullity is a valid defense whenever it is obtained. In Pulido's case, the civil registrar found no record of the license for his first marriage, which raised reasonable doubt that a valid first marriage existed, and a court later declared that first marriage void. The Supreme Court acquitted him.

The decision has two limits:

• It is a defense in the criminal case only. The Court said Article 40 of the Family Code is "merely for purposes of remarriage". A person who wants to marry again still needs a final judgment declaring the first marriage void (Article 40).
• A second marriage void only because it is bigamous is no defense. The Court said such a marriage cannot be used to escape liability, because it was void for being bigamous, not for lacking an essential requisite.

Article 349 itself names the exception: a person may remarry after "the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings". The rules for that judgment are in Article 41 of the Family Code:

Two years are enough when the disappearance happened in danger of death, under the cases in Article 391 of the Civil Code. Either way, the spouse present must first file a summary proceeding in court for the declaration of presumptive death. See Can I remarry if my spouse is missing?

No. Article 35 of the Family Code lists bigamous and polygamous marriages among the marriages that are void from the beginning, except those that fall under Article 41.

So the second spouse in a bigamy case is not legally married to the accused, unless the second marriage falls under Article 41.