REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT SIXTH JUDICIAL REGION BRANCH 101 ILOILO CITY

MARIA CLARO Plaintiff,

- versus -

CRIMINAL CASE No. 07-007 Violation of Article 349 Act No. 3815, (The Revised Penal Code of the Philippines)

JUAN MALABO, Accused. x-------------------------------x

MOTION TO QUASH INFORMATION Accused Juan Malabo, by the undersigned counsel, and unto this Honorable Court, moves to quash the Information filed against him by the City Prosecutor on June 21, 2007 on the ground that facts charged do not constitute an offense.

ISSUE OF THE CASE Whether or not accused Juan Malabo is guilty, for violating Article 349 of Act No. 3815, otherwise known as the Revised Penal Code of the Philippines.

APPLICABLE LAWS AND ARGUMENTS

Article 349 of Act No. 3815, otherwise known as the Revised Penal Code of the Philippines substantially provides that one essential requisite of the crime bigamy is that, the offender should be legally married when he contracts a subsequent marriage. Accordingly, plaintiffs allegation is in fact wanting in material to constitute the crime.
(a)

The marriage of the plaintiff and accused is null and void.

Accused Juan Malabo was actually never legally married to Maria Claro because his marriage with petitioner was declared null and void by the Regional Trial Court, Branch 911, San Jose Antique, on April 26, 2007 and the decision became final and executory on May 15, 2007. In addition, the decree of nullity of marriage has already been registered with the Provincial Registrar on June 12, 2007. Thus, there was no first marriage to speak of as it was null and void from the very beginning. Notably, in the case of Morigo v. People, G.R. No. 145226, February 6, 2004, the Honorable Supreme Court ruled that: The first element of bigamy as the crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married from the beginning. The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. Hence, contrary to what was stated in the Information, accused Juan Malabo was actually never legally married to Maria Claro. On this score alone, the first element appears to be missing. Furthermore, the statement in the definition of Bigamy which reads before the first

marriage has been legally dissolved clearly contemplates that the first marriage must at least be annullable or voidable but definitely not void, as in this case. A marriage declared void ab initio has a retroactive legal effect The decision of the Regional Trial Court, Branch 911, San Jose Antique declaring the marriage of the petitioner and the accused null and void has, in effect, established that there would be no first valid marriage to speak of after all. As recent opinion in CA-G.R. CR No. 20700 in reference to the same case, the Honorable Supreme Court reiterated that, A marriage declared void ab initio simply means that there was no marriage to begin with; and that such declaration of nullity retroacts to the date of the first marriage. In other words, for all intents and purposes, reckoned from the date of the declaration of the first marriage as void ab initio to the date of the celebration of the first marriage, the accused was, under the eyes of the law, never married. Hence, Juan Malabos marriage to Maria Claro, being declared as void ab initio has a retroactive legal effect which would render the elements of bigamy incomplete.

(b)

PRAYER WHEREFORE, in view of the foregoing, it is respectfully prayed that the Information of Violation of Article 349 Act No. 3815, otherwise known as The Revised Penal Code of the Philippines, filed by the City Prosecutor on June 21, 2007 against the accused be quashed.

Other just and equitable reliefs are likewise prayed for. Iloilo City. January 14, 2012.

GROUP2 LAW OFFICE Counsel for Accused 10TH Floor XYZ Plaza, Ledesma St., City of Iloilo By: MEDALIN M. TEVES Roll of Attorneys No. 11123 PTR No. 1111112; 01-05-2012; Iloilo City IBP No. 22222; 01-05-2012; Iloilo City

NINA JANE S. SOURIBIO Roll of Attorneys No. 88856 PTR No. 3333334; 01-05-2012; Iloilo City IBP No. 555555; 01-05-2012; Iloilo City

COPY FURNISHED: THE BRANCH CLERK OF COURT REGIONAL TRIAL COURT Sixth Judicial Region Iloilo City, Branch 101

THE HONORABLE CITY PROSECUTOR Office of the City Prosecutor Hall of Justice, Iloilo City

NOTICE OF HEARING Greetings: Please take notice that the foregoing Motion will be submitted for the Courts consideration and resolution on 14 January 2012 at 8:30 a.m. or as soon thereafter as matter and counsel may be heard.

COPY FURNISHED: THE BRANCH CLERK OF COURT REGIONAL TRIAL COURT Sixth Judicial Region Iloilo City, Branch 101

THE HONORABLE CITY PROSECUTOR Office of the City Prosecutor Hall of Justice, Iloilo City