Published 6 May 2022, The Daily Tribune
Having one spouse too many is the best way to succinctly describe bigamy. Legally, it is contracting 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.
While it is a common misconception that change of religion into one that allows multiple marriages is a valid defense to a bigamy charge, the Supreme Court clarified in a recent decision that dissolution of the first marriage is an absolute requirement prior to contracting of a second marriage. Without such prior dissolution, not even the conversion of religion to Islam is a valid ground to have a second spouse and will not shield the erring party from a bigamy charge.
In the case of Francis and Jacqueline Malaki vs. People of the Philippines (G.R. 221075, 15 November 2021), the Supreme Court upheld the finding of guilt against a couple who married even though the husband had already contracted a first marriage.
The complainant and Francis Malaki were validly married. After petitioner Francis left and abandoned their family, complainant discovered that petitioners cohabited and later on got married while complainant and Francis’s marriage was subsisting. However, petitioners claimed that they cannot be penalized for bigamy as they converted to Islam prior to their marriage. The trial court found them guilty of bigamy, which was affirmed by the Court of Appeals.
The Supreme Court, in resolving petitioners’ appeal, held that a party who converts to Islam and marries another despite the subsistence of a first marriage is guilty of bigamy. Likewise guilty is the spouse in the subsequent marriage. It found that there is no conflict between the Muslim Code and the general law on the issue.
Article 13(2) of the Muslim Code spells out that the Civil Code governs marriages where either party is non-Muslim and which were not solemnized in Muslim rites. Hence, the nature, consequences and incidents of petitioner Francis’ prior and admittedly subsisting marriage to complainant remain well within the ambit of the Civil Code, and its counterpart penal provisions in the Revised Penal Code.
In sum, the Muslim Code finds no application in his subsisting marriage with complainant who was a non-Muslim and his marriage to whom had not been solemnized in Muslim rites. Thus, it does not matter whether the subsequent marriage of petitioners happened before or after their conversion because the subsequent marriage consummated the crime of bigamy.
Furthermore, there are conditions under which the Muslim Code allows a subsequent marriage. Article 27 of the Muslim Code conditionally allows the Muslim husband’s subsequent marriage in exceptional cases under the following substantive requisites. It states that “notwithstanding the rule of Islamic law permitting a Muslim to have more than one wife but not more than four at a time, no Muslim male can have more than one wife unless he can deal with them with equal companionship and just treatment as enjoined by Islamic law and only in exceptional cases.”
Article 162 spells out the formal requisites for the Muslim husband’s subsequent marriage, requiring the husband to file a written notice thereof with the Clerk of Court of the Shari ‘a Circuit Court of the place where his family resides before contracting a subsequent marriage. The Clerk shall serve a copy thereof to the wife or wives.
These requisites were not present, hence petitioners’ conversion to Islam does not exculpate them. Conversion to Islam does not release them from criminal liability without the proper application of law and presence of the above requisites. The Supreme Court further clarified that while we enact laws to preserve and develop cultures, traditions and institutions, it will not allow circumvention of law in the guise of preserving culture.
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