Legal Memorandum Sample Legal Writing 6l6u29

Jayford O. Powao LLB-1 Legal Writing

To: Ana Quinn, Associate Attorney From: Pal Patin, Supervising Attorney Date: March 8, 2016 Re: Beru v. Owen – Bigamy Case; Defenses in Bigamy

You have tasked me to prepare a legal memorandum concerning the case of our client Miss Beru who is charged with Bigamy. I have presented here the key facts, issues, our possible defense, applicable jurisprudence and laws that can be our basis to defend our client, including possible counterarguments from the opposing and our answer to that counter arguments. KEY FACTS Our client, Beru got married in 2002 with her husband Owen. Owen filed a complaint for bigamy against Beru in 2012. Owen claimed that Beru had contracted a prior marriage in 1992 with a man named Lando. Beru denied her husband’s allegations. She itted, however, that she was a party in a simulated marriage that took place in 1998 with her first boyfriend Lando. The reason was that Lando at that time impregnated another woman named Corde, and in order to discourage Corde from pursuing him, Lando convinced Beru to sign a simulated marriage contract for the purpose of only showing Corde that he was married already. Beru said that she and Lando did not even live together as 1

husband and wife after the simulated marriage. It was only after the bigamy complaint was filed in court when Beru discovered that Lando in fact ed the simulated marriage contract without her knowledge much less consent. ISSUES 1.) Whether the question of the validity of the marriage between Beru and Lando should be resolved first before the criminal proceeding can proceed 2.) Whether Beru and Lando’s act of g a simulated marriage contract consisted of a valid marriage 3). Whether Beru can be held liable for Bigamy for conducting a subsequent marriage with Owen when she had a previous subsisting marriage with Lando BRIEF ANSWERS 1). Yes, the validity of Beru’s marriage with Lando shall be resolved first as it constitutes a prejudicial question to the criminal case of bigamy filed against her by her husband Owen since it is determinative whether or not the criminal case shall prosper. 2.) No, because the essential and formal requisites for a valid marriage was not complied. Although there is a marriage contract, but a marriage contract is not an essential nor a formal requisite for a valid marriage. 3.) No, Beru cannot be held guilty for the crime of Bigamy because her first marriage with Lando was not valid, hence one of the essential requisites for the crime of Bigamy to be committed is not present. DISCUSSIONS/ANALYSIS 2

The first issue to be resolved in this case is whether or not the issue of the validity of the marriage between Beru and Lando should be resolved first before the prosecution for the crime of Bigamy can proceed. In short, the issue on the validity serves as a prejudicial question to the crime of Bigamy indicted against Beru. As enunciated in Article 36 of the Civil Code: “Prejudicial questions, which must be decided before any criminal prosecution may be instituted, or may proceed, shall be governed by our rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this Code.”

In the same manner, the Supreme Court held in a case wherein the accused claimed that his first marriage was null and void and the right to decide that question is vested in another tribunal, the civil action for nullity must be decided first before the action for bigamy can proceed. As the high court said in the case of People v Adelo Aragon: “Prejudicial question has been defined to be that which arises in a case, the resolution of which (question) is a logical antecedent of the issue involved in said case, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court; this is its first element. Jurisdiction to try said question must be lodged in another tribunal; this is the second element. In an action for bigamy, for example, if the accused claims that the first marriage is null 1and void and the right to decide such validity is vested in another tribunal, the civil action for nullity must first be decided before the action for bigamy can proceed; hence, the validity of the first marriage is a prejudicial question.”

As supplemented by Section 7 of Rule 11 of the Rules of Court, the elements of a prejudicial question are:

1 CIVIL CODE, ART. 36PP VS. ADELO ARAGON, GR NO. 5930 RULES OF COURT, SECTION 7

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“(a) the previously instituted civil action involves an issue similar or intimately related to the issue said in the subsequent criminal action, and (b)the resolution of such issue determines whether or not the criminal action may proceed.”

Thus, Beru shall institute a civil case to resolve the validity of her first marriage with her former boyfriend Lando. As such, this action shall bar the criminal action from proceeding as it constitutes a prejudicial question to the crime of Bigamy charged against Beru. The second issue to be resolved in this case is whether the simulation of a marriage contract between Lando and Beru resulted to the celebration of a valid marriage. It is of primary importance to revisit the essential and formal requisites of a valid marriage. As stated in Article 2 and 3 of the Family Code: “No marriage shall be valid, unless these essential requisites are present: (1)Legal capacity of the contracting parties who must be a male and a female; and (2)Consent freely given in the presence of the solemnizing officer. The formal requisites of marriage are: (1) Authority of the solemnizing officer; (2) A valid marriage license except in cases provided for Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

Furthermore, the absence of any of the essential or formal requisites shall render the marriage invalid. It is expressedly laid down in Article 4 of the Family Code, which provides:

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“The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35(2)2 A defect in any of the essential requisites shall render the marriage voidable as provided in Article 45.”

In the case at bar, it is undeniable that Lando and Beru agreed to sign a simulated marriage contract for the purpose of showing Corde whom Lando impregnated tha Lando is already married. But this does prove that the marriage was valid, as shown above, marriage contract is not an essential nor a formal requisite for a valid marriage. Assuming in argument that the act of g the marriage contract was an act purporting that they declare each other as husband and wife and that they both consent, but this was not done during a marriage ceremony in front of a solemnizing officer. The g was done privately among the parties. The absence of such negates the existence of the essential and formal requisites namely: the consent freely given in the presence of a solemnizing officer, authority of the solemnizing officer, a marriage ceremony where the parties appear before the solemnizing officer personally declaring that they take each other as husband and wife in the presence of two witnesses. Furthermore, it has not been shown that they procured a marriage, and obviously their situation does not fall upon the exemptions provided by law where a marriage license is not required.

2 FAMILY CODE, ART. 2FAMILY CODE, ART. 3 FAMILY CODE, ART. 4 CARINO VS. CARINO, GR NO. 132529

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Thus, the marriage between Lando and Beru is void ab initio in accordance with Article 4, since they failed to obtain the essential and formal requisites provided by law. As held by the Supreme Court in the case of Cariño v. Cariño the court declared that the marriage between the parties was void ab initio for the failure of the parties to secure a valid marriage license even if there was a marriage contract. The court ruled that: “Under the Civil Code, which was the law in force when the marriage of petitioner Susan Nicdao and the deceased was solemnized in 1969, a valid marriage license is a requisite of marriage, and the absence thereof, subject to certain exceptions, renders the marriage void ab initio. In the case at bar, there is no question that the marriage of petitioner and the deceased does not fall within the marriages exempt from the license requirement. A marriage license, therefore, was indispensable to the validity of their marriage. This notwithstanding, the records reveal that the marriage contract of petitioner and the deceased bears no marriage license number and, as certified by the Local Civil Registrar of San Juan, Metro Manila, their office has no record of such marriage license.”

Furthermore, marriage is a contract governed by law and the law states that contracts which are simulated are void or inexistent, particularly Article 1409 of the Civil Code enumerates contracts which are void or inexistent, the said article states that: “Art. 1409. The following contracts are inexistent and void from the beginning: xxx

xxx

xxx

(2) Those which are absolutely simulated or fictitious; x x x xxx xxx

In the case of Bangayan vs Bangayan Jr., the Supreme Court upheld the decision of the Court of Appeals which applied the general rules on void or inexistent contracts under Article 1409 of the Civil Code, that contracts which are absolutely simulated or fictitious are inexistent and void from the beginning. The high 6

court sustained that the lower court’s ruling that the marriage between the petitioner and respondent of this case was null and void ab initio and non-existent for lack of marriage license and for simulation of the marriage contract.3 Thus, it can be concluded in light of the above mentioned rules and jurisprudence, that the marriage between Lando and Beru is void ab initio for they were not able to comply with the essential and formal requisites for a valid marriage. We can also consider that the marriage was void or inexistent for the simulation of the marriage contract in accordance with Article 1409 of the Family Code. The third issue that shall be discussed is whether Beru can be held liable for Bigamy.

Article 349 of the Revised

Penal Code defines and penalizes Bigamy which states that 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 judgement rendered in the proper proceedings. Furthermore, the case of Mercado v Tan provides the elements for Bigamy to be committed which are: “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 contracts a second or subsequent marriage. 3 CARINO VS. CARINO, GR NO. 132529CIVIL CODE, ART. 1409 BANGAYAN VS BANGAYAN JR. GR NO. 201061 REVISED PENAL CODE, ART. 349 MERCADO VS TAN 137110

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4. That the second or subsequent marriage has all the essential requisites for validity.”

From the above-cited article and jurisprudence, Beru cannot be held liable for Bigamy because the first essential requisite is absent in this case which provides that the offender must have been legally married. Beru is not legally married, as argued above, her previous marriage with Lando has no legal effect because they have failed to comply with the essential and formal requisites of a valid marriage. Thus, in the eyes of the law, Beru is not legally married prior to her marriage with Owen, as such she had not legal impediment and was acting within her rights and under the bounds of law when she conducted a subsequent marriage with Owen. Henceforth, Beru cannot be held liable for Bigamy. COUNTERARGUMENTS Beru shall be held liable for bigamy because it is not up to the party to decide whether or not the marriage is valid. Judicial declaration of nullity is needed before a married person can remarry. As Article 40 of the Family Code provides: “The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgement declaring such previous marriage void.”

Furthermore, the law prohibits the parties from assuming that their marriage is void, even if it is true and undisputable, they must first seek judicial aid and apply for a declaration of the nullity of their marriage before they can be allowed to remarry. Failure of the observance of such shall make them liable for Bigamy. As ruled in Domingo vs CA:

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“Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense. 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. The Family Law Revision Committee and the Civil Code Committee which drafted what is now the Family Code of the Philippines took the position that parties to a marriage should not be allowed that their marriage is void even if be the fact but must first secure a judicial declaration of the nullity of their marriage before they can be allowed to marry again.”4

For the failure of Beru to file a court action for the judicial declaration of nullity of her marriage, she is guilty for Bigamy when she conducted a subsequent marriage with Owen even if she had a subsisting marriage with Lando. Her disregard of the rule stated in Article 40 of the Family Code cannot excuse her for liability, as the latin maxim says ignorantia legis non excusat. Lastly, Beru can be held liable for moral damages which Owen suffered as a result of the mental distress, anguish and pain he suffered as a result of their failed marriage. As Article 20 and 21 of the Family Code provides: “Article 20 – Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Article 21 – Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damages.”

RESPONSE TO THE COUNTER ARGUMENTS

4 DOMINGO VS CA GR NO. 104818CIVIL CODE, ART. 20 CIVIIL CODE, ART. 21 FAMILY CODE, ART. 40

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Beru cannot be held liable for Bigamy even if she failed to invoke judicial aid to declare the nullity of her marriage with Lando. Beru was not cognizant of the fact that Lando ed the simulated marriage contract, she only knew about after the complaint of bigamy was filed. Penal laws are liberally construed in favour of the accused, as such intent is necessary. Therefore, acts done in good faith may free any one from liability. In the case at bar, Beru’s act of conducting a subsequent marriage was made in good faith. Beru had no criminal intent to commit Bigamy. Her act of connivance and failure of seeking judicial aid is an error of judgement coupled with mistake of fact. Thus, she should not be held criminally liable for Bigamy. CONCLUSIONS/RECOMMENDATIONS Our defense holds water, as provided by law and jurisprudence, Beru cannot be held liable for Bigamy because her marriage with Lando was simulated and failed to comply with the requisites provided by law. Furthermore, it is highly recommended that we present the local civil registrar as our witness to testify that the marriage contract is in fact in valid and has no marriage license number. We also recommend to present Lando as our witness so that he will attest to the facts that they simulated their marriage contract and that their marriage is not valid. His statement will be highly relevant to this case.

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