Judicial declaration of nullity of a previous marriage required before one can remarry
Credit to Author: PERSIDA ACOSTA| Date: Fri, 27 Sep 2019 16:44:00 +0000
Dear PAO,
I married my husband on Feb. 14, 2010. I found out two weeks ago that my marriage with my husband was void from the very beginning, as we failed to secure a marriage license prior to our wedding day. Can I marry my current boyfriend since my marriage with my husband is inexistent and has no legal effect?
Martina
Dear Martina,
For your information, the provisions that address your situation are Articles 3, 4 and 40 of the Family Code of the Philippines:
“Art. 3. The formal requisites of marriage are:
“(1) Authority of the solemnizing officer;
“(2) A valid marriage license except in the cases provided for in 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.
“Art. 4. The absence of any of the essential or formal requisites shall render the marriage void ab initio, except as stated in Article 35 (2). xxx
“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.” (Emphases supplied)
In the case of Marbella-Bobis vs Bobis (GR 138509, July 31, 2000), the Supreme Court, through Associate Justice Consuelo Ynares Santiago, stated that:
“Article 40 of the Family Code xxx requires a prior judicial declaration of nullity of a previous marriage before a party may remarry. The clear implication of this is that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage. Whether or not the first marriage was void for lack of a license is a matter of defense because there is still no judicial declaration of its nullity at the time the second marriage was contracted. xxx he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not be suspended on the ground of the pendency of a civil case for declaration of nullity” (Emphasis supplied).
It appears based on the facts you have provided that your marriage was solemnized without a marriage license and that your marriage is not covered by the exceptions to the requirement of a marriage license. Hence, your marriage is void ab initio or is considered as having never to have taken place. In the light of Article 40 of the Family Code, you cannot validly enter into a second marriage without first obtaining the judicial declaration of nullity of your first marriage. A marriage though void still needs a judicial declaration of such fact before any party can marry again; otherwise, the second marriage will also be void since the first marriage is presumed to be subsisting without a judicial declaration of its nullity.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net