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[G.R. No. 139742.December 15, 1999]

BORBAJO vs. CA, et al .

FIRST DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated DEC 15, 1999.

G.R. No. 139742(Thomas P. Borbajo vs. The Court of Appeals, Elizabeth G. Aberin, and People of the Philippines.)

Petitioner assails the Decision, dated February 26, 1999; and, Resolution, dated August 13, 1999, of the Court of Appeals, which dismissed his petition for certiorari and prohibition.

The antecedent facts of the case are undisputed:

On October 15, 1988, petitioner Thomas P. Borbajo and private respondent Elizabeth G. Aberin were joined in holy matrimony in Sta. Ana, Manila. They had one child. A few years later, the couple separated. On November 9, 1994, petitioner filed a complaint for the declaration of nullity of their marriage alleging as ground respondent Aberin's psychological incapacity to comply with essential marital obligations.

While the above civil case was pending, petitioner contracted a second marriage with Mariquit O. Lagda on June 23, 1995 in Kawit, Cavite. Respondent Aberin reacted by filing a complaint for bigamy on June 10, 1996. Petitioner moved for suspension of the criminal case for bigamy on the ground of existence of a prejudicial question.

The trial court denied his motion for failure to attach a copy of the complaint for declaration of nullity of marriage. Petitioner filed a motion for reconsideration which the trial court, likewise, denied. Petitioner then filed a petition for certiorari and prohibition with prayer for the issuance of a temporary restraining order and preliminary injunction with the Court of Appeals alleging therein that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction.

On February 26, 1999, the appellate court rendered a decision denying the petition after finding that the Orders of the trial court have sound legal basis. His motion for reconsideration having been denied, petitioner comes to this Court on the following grounds:

I.

THE COURT OF APPEALS ERRED IN FINDING THAT BECAUSE OF ARTICLE 40 OF THE FAMILY CODE, THE CIVIL CASE FOR DECLARATION OF NULLITY OF THE FIRST MARRIAGE CANNOT BE INVOKED AS A PREJUDICIAL QUESTION BY PETITIONER IN THE CRIMINAL CASE FOR BIGAMY AGAINST HIM.

II.

THE COURT OF APPEALS ERRED IN APPLYING THE CASES OF APIAG VS. CANTERO (268 SCRA 47); WIEGEL VS. SEMPIO DIY (143 SCRA 499); and DOMINGO VS. COURT OF APPEALS (226 SCRA 572) TO THE INSTANT CASE.

Petitioner's allegations are bereft of merit.

The Court of Appeals correctly ruled that even if the first marriage was void ab initio, a judicial declaration of nullity of said marriage is still necessary for a party thereto to contract a second marriage.

We quote with approval the Court of Appeals' ruling on the matter:

Indeed, even granting that Borbajo's first marriage was void ab initio, still a judicial declaration of such nullity is necessary for him to contract a second marriage. The Family Code provides that:

Art. 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.

This means that there must be a judicial declaration of nullity of a previous marriage before a subsequent marriage can be contracted. The Code Commission believed that the parties to a marriage should not be allowed to determine and assume by themselves that their marriage is void.

x x x

It is now settled that a mere claim that the first marriage is void from the beginning is not a defense in a bigamy charge. As with a voidable marriage, there must be a judicial declaration of the nullity of a marriage before contracting the second marriage (Reyes, Revised Penal Code, Book Two, P. 829, 1993 Edition). This Borbajo did not have, and his still unresolved action for the declaration of nullity of his marriage with Aberin cannot be determinative of the criminal case he faces. Its resolution is not a logical antecedent to the charge of bigamy as to warrant a suspension of its proceedings.

The cases of Apiag, Weigel and Domingo followed the ruling in Landicho vs. Relova, ¹ 22 SCRA 731 (1968). where the Court, making reference to Viada, stressed that parties to a marriage should not be permitted to judge for themselves its nullity, as only competent courts have such authority. A party who contracts a second marriage then assumes the risk of being prosecuted for bigamy.

WHEREFORE, in view of the foregoing, the Court resolves to DENY the instant petition for review on certiorari for failure of the petitioner to show that the Court of Appeals committed any reversible error.

Very truly yours,

(Sgd.) VIRGINIA ANCHETA-SORIANO

Clerk of Court

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