Why "illegal marriage" doesn't make sense

Under the Revised Penal Code (Act 3815), the penalty of imprisonment 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 judgment rendered in the proper proceedings. The prison term shall be prision mayor, which has a duration of six years and one day to 12 years. (Article 349)

"Legally dissolved" means the death of one or both of the spouses, the declaration of nullity or the marriage or its annulment.

According to the Supreme Court, our penal laws protecting the institution of marriage are in recognition of the sacrosanct character of this special contract between spouses, and they punish an individual’s deliberate disregard of the permanent character of the special bond between spouses. (G.R. No. 150758. February 18, 2004)

It is understandable that, under the 1987 Constitution of the Philippines, the protection of the family is one of the policies of the State and, because of this, marriage is defined by Section 2 of Article XV thereof as an inviolable social institution which is the foundation of the family. Both family and marriage are protected by the Constitution.

However, what is not easy to understand is that a second or subsequent marriage is still considered illegal and criminal even if all parties concerned have expressed their consent thereto. For example, if X is married to Y and, later on, both of them agree that X would marry Z and Z also consents to this arrangement, the marriage between X and Z would still be bigamous under the law.

It does not make sense because this legal consequence does not exist outside marriage. Hence, if X, Y and Z are in a polyamorous relationship, no law would be violated. As a result, this would discourage them from entering into a contract of marriage.
Others would say that the definition of marriage as protected under the 1987 Constitution is one between only one male and only one female. However, it is known to all that the Muslim Code of the Philippines allows polygamy in favor of men. Also, the point of this argument is not the definition of marriage but the absurdity of considering void and illegal a subsequent or second marriage even if all parties concerned have agreed to the setup.

It may also be argued by those who are not convinced of the above that, even if polyamorous partners enter into multiple marriage, none of them would go to jail unless and until one of them goes to court. However, it must be recalled that, as held by the Supreme Court in Fujiki v. Marinay, bigamy is a public crime. Thus, anyone can initiate prosecution for bigamy because any citizen has an interest in the prosecution and prevention of crimes. (G.R. No. 196049. June 26, 2013)

It is important to emphasize that, in the Philippines, marriage is any citizen's concern. Anyone can file a case against you for being in an illegal marriage because illegal marriages are a public, not private, crime.

In sum, consenting adults are not allowed by law to protect the relationship and the children who are results thereof, thereby giving them all the benefits of a legal marriage, by entering into bigamy or polygamy. The Family Code also does not allow one marriage among three or more persons. However, it is not illegal or criminal for polyamorous partners to consent to the relationship outside but without the benefits of marriage, even if there are children involved.

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