Annulment vs. Declaration of Nullity for Bigamous or Void Marriages Involving Foreign Spouses (Philippines)

Updated for the Family Code framework and controlling Supreme Court doctrines. Philippine law governs unless otherwise indicated.

1) The Two Remedies at a Glance

Annulment of Marriage dissolves a voidable marriage (valid until annulled). Grounds are under Article 45 of the Family Code (e.g., lack of parental consent, insanity, fraud, force/intimidation, impotence, serious sexually transmissible disease). Result: the marriage is set aside prospectively; children conceived before finality remain legitimate; property relations are liquidated.

Declaration of Absolute Nullity of Marriage declares a void marriage (invalid from the beginning) under Articles 35, 36, 37, 38, 40, 41 of the Family Code (e.g., under 18, bigamous/polygamous, psychological incapacity, incest, prohibited degrees, absence of essential/formal requisites). Result: marriage is void ab initio; however, a judicial declaration is still required for many civil effects (remarriage, legitimate filiation presumptions, registry corrections).

Key distinction: Bigamous marriages are void, never voidable—so the correct action is a declaration of nullity, not an annulment.

2) Why Bigamy Is Void—and How Foreign Elements Complicate It

A. Bigamy under Philippine law

A marriage is void for bigamy when one party had a subsisting prior marriage at the time of the subsequent marriage (Art. 35[4]).
Criminal liability for bigamy (Revised Penal Code Art. 349) requires: (1) a first marriage, (2) a second marriage, (3) both validly celebrated, (4) the first still subsisting.
Critical doctrine: To avoid criminal bigamy and civil nullity exposure, a party must first secure a final judicial declaration that the prior marriage is void before contracting another marriage (Family Code Art. 40; repeatedly affirmed by the Supreme Court).

B. The foreign dimension: capacity, formalities, and foreign divorces

Capacity to marry is governed by one’s national law (Civil Code Art. 15), while formalities of the celebration are governed by the law of the place of celebration (lex loci celebrationis) (Civil Code Art. 17, Family Code Art. 26[1]).
A foreign divorce validly obtained by a foreign spouse dissolves the marriage for the foreigner. Under Article 26(2) of the Family Code, that divorce also allows the Filipino spouse to remarry after Philippine judicial recognition of the foreign judgment.
A foreign judgment (divorce decree or judgment of nullity) and the foreign law applied must be alleged and proven (no judicial notice of foreign law). If foreign law is not proven, courts presume it is the same as Philippine law (processual presumption).

Effect on bigamy: If the first marriage was valid but later dissolved by a foreign divorce obtained by the foreign spouse, the Filipino is free to remarry only after a Philippine court recognizes the foreign divorce and the civil registry is duly annotated. Without recognition/annotation, remarriage risks nullity and even criminal bigamy exposure.

3) Choosing the Correct Remedy in Scenarios Involving Foreign Spouses

Scenario	Proper Remedy	Why
Second marriage contracted while a prior marriage (Philippine or foreign) still subsists	Declaration of Nullity of the second marriage (bigamy)	Bigamy = void ab initio (Art. 35[4])
First marriage void (e.g., under 18; no license) but no prior judicial declaration yet, and a second marriage is contracted	Still Declaration of Nullity of second marriage; prior judicial declaration should have been obtained first	Art. 40 requires prior judicial declaration before remarrying
Foreign spouse secured a valid foreign divorce dissolving the first marriage	Recognition of Foreign Divorce; then remarriage becomes lawful	Art. 26(2); recognition proceeding required in PH
Foreign court nullified the marriage ab initio	Recognition of Foreign Judgment of Nullity; then registry annotation	Same recognition logic; marriage treated as void from the start once recognized
Filipino obtained a divorce abroad against another Filipino	Not recognized to allow remarriage	Philippine public policy: divorce between two Filipinos is generally not recognized (exceptions involve conflicts rules not applicable in ordinary cases)
Psychological incapacity involving a foreign spouse	Declaration of Nullity (Art. 36)	Requires thorough proof of gravity, juridical antecedence, and incurability per controlling jurisprudence

4) Procedure: What You File, Where, and What to Prove

A. Declaration of Nullity (void marriages, including bigamy)

Court: Family Court (Regional Trial Court with family jurisdiction) where the petitioner resides (residency rules under the special rules on nullity/annulment).
Parties: Petitioner vs. Respondent; the State, through the Prosecutor/OSG, must be notified and heard (marriage is a matter of public interest).
Required allegations/proof:
- Facts constituting voidness (e.g., existence of prior subsisting marriage at the time of the second marriage).
- Documentary proof: PSA/NSO copies of marriage certificates (first and second), certificates of no marriage (CENOMAR) when helpful, and any court judgments related to the first marriage.
- If foreign elements exist: foreign certificates/decrees, apostilled (or previously consularized), official translations, and proof of foreign law (statutes/decisions with competent authentication or expert testimony).
Reliefs: Declaration of nullity; liquidation of property relations (Arts. 50–51), custody and support orders, use of surnames, and civil registry annotation (Arts. 52–53).

B. Annulment (voidable marriages)

Ground-specific proof (e.g., fraud must be material and causative; insanity must be preexisting/incapacitating; force/intimidation must be grave).
Prescriptive periods apply (e.g., within five years from discovery/cessation for certain grounds).
Religion/consent issues are distinct from bigamy—a common mistake is trying to “annul” a bigamous union; it must be a nullity case.

C. Recognition of Foreign Judgment (divorce/nullity)

Purpose: To recognize a foreign judgment (divorce or nullity) so Philippine civil status records and rights reflect it.
Petition type: Courts have allowed recognition via a Rule 108-type petition (cancellation/correction/annotation of civil registry entries) or an independent petition for recognition of a foreign judgment, with the State impleaded.
Proof:
1. The foreign judgment (properly apostilled/translated).
2. The foreign law under which the judgment was rendered (competently proven).
3. Identity of parties and marriages (PSA docs).
Outcome: Court orders civil registrar/PSA to annotate the marriage record and CENOMAR/Advisory on Marriages; thereafter, the Filipino may lawfully remarry.

5) Evidentiary Essentials (with Common Pitfalls)

Foreign law and judgments are facts that must be proven. Philippine courts do not take judicial notice of foreign law. Absent proof, courts presume foreign law is the same as Philippine law.
Apostille: The Philippines is a party to the Apostille Convention (replacement for most consular legalizations). Ensure the decree and law extracts are apostilled in the issuing state and officially translated if not in English/Filipino.
Article 40 compliance: Even if the first marriage is void, do not remarry without a prior judicial declaration that it is void.
Children’s legitimacy:
- In void marriages, children are generally illegitimate, except those under Article 36 jurisprudence and the legitimation or legitimacy-saving rules (watch the evolving case law).
- In voidable marriages (annulment), children conceived before finality remain legitimate.
Property relations:
- In void marriages, apply co-ownership rules to properties acquired by both parties before liquidation.
- In voidable marriages, the absolute community or conjugal partnership is dissolved and liquidated after finality.
Surnames: A wife may retain or resume her maiden surname depending on the outcome and court directives; avoid prematurely changing records without an annotation order.

6) Interplay with Criminal Bigamy

A civil declaration of nullity of the second marriage does not automatically negate criminal liability if, at the time of the second marriage, the first marriage was still subsisting and no prior judicial declaration of its nullity existed.
Conversely, if before contracting a subsequent marriage a party already had a recognized foreign divorce (Art. 26[2]) or a final judgment declaring the earlier marriage void, that generally defeats a bigamy charge.
Standard of proof differs: preponderance in civil nullity vs. beyond reasonable doubt for bigamy; timing and documentary trail are crucial.

7) Special Notes When a Spouse (Past or Present) Is a Foreigner

Validity of the foreign prior marriage: Prove it and its governing law; absent proof, Philippine courts may presume local rules.
Capacity impediments under foreign law (e.g., age, consanguinity, prior marriage restrictions) must be proven if relied upon.
Recognition of foreign divorce/nullity is not automatic; a Philippine proceeding is required to bind the civil registry and enable lawful remarriage.
If the Filipino obtained the foreign divorce (against a Filipino), it usually will not be recognized to allow remarriage (policy against divorce between Filipinos), unless complex conflicts-of-law exceptions apply (rare).

8) Practical Roadmaps

A. To invalidate a bigamous second marriage (foreign angle present)

Gather documents: PSA marriage records of both marriages, CENOMARs, foreign marriage/death/divorce records, IDs/passports, proof of prior marriage’s subsistence at the time of the second ceremony.
Assess whether a foreign divorce or foreign nullity of the first marriage exists and was recognized in the Philippines before the second marriage.
File: Petition for Declaration of Absolute Nullity (bigamy) in the proper Family Court; implead the State.
Seek: Orders on custody, support, property liquidation, and civil registry annotation.

B. To remarry after a foreign spouse divorced you abroad

Secure apostilled copies of the foreign divorce decree and foreign law; obtain official translations as needed.
File in the Family Court a petition to recognize the foreign judgment (often via Rule 108-type action), impleading the civil registrar/PSA and the State.
After finality, ensure PSA annotation (marriage record and CENOMAR/Advisory on Marriages).
Only then apply for a marriage license and contract a new marriage.

9) Effects After Finality

Civil Registry: The court’s dispositive portion directs the local civil registrar and the PSA to annotate marriage records (and related entries).
Property: Liquidation of property relations and delivery of presumptive legitimes (Arts. 50–51) when applicable.
Children: The court may issue orders on custody, support, and visitation, guided by the best interests of the child.
Succession/Social benefits: Status changes may affect heirship, SSS/GSIS, PhilHealth, insurance, and immigration benefits; update beneficiary designations after finality and annotation.

10) Frequently Asked Clarifications

Is a bigamous marriage ever “annulled”? No. It is void, so the action is a declaration of nullity, not annulment.

Can I use a foreign divorce decree at once to remarry in the Philippines? Not safely. You need a Philippine court recognition and PSA annotation first.

If my first marriage was void, can I skip court and just remarry? No. Art. 40 requires a prior judicial declaration of nullity before remarriage.

Will a later declaration that my first marriage was void save me from bigamy? Not necessarily. The key is whether you had the prior judicial declaration (or recognized foreign divorce) before the second marriage.

What if my second marriage was performed abroad? Its formal validity is tested by the law of the place of celebration; your capacity is tested by your national law. A Philippine court may still declare it void for bigamy if a prior marriage subsisted under rules that apply to you.

11) Document Checklist (typical, adjust per case)

PSA copies of marriage certificates (all relevant unions)
CENOMARs/Advisories on Marriages
Foreign marriage/death/divorce/nullity records (apostilled, translated if needed)
Foreign statutes/case law and/or expert testimony proving the foreign law applied
Government IDs, passports, proof of residence and jurisdiction
Evidence for custody, support, property (titles, bank/vehicle records), and good cause for protective or provisional orders

12) Counsel’s Strategic Notes

Plead both the fact and the law: For foreign issues, always plead the specific foreign statute/case and attach apostilled copies.
Sequence matters: Recognition of foreign decrees should ideally be done before taking acts that rely on the changed civil status (e.g., remarriage).
Parallel risks: Consider implications for criminal bigamy; timeline and records control the outcome.
Children and property: Don’t treat status relief as standalone—secure comprehensive orders on custody, support, and liquidation to avoid later litigation.

Bottom Line

For unions tainted by bigamy, the correct civil remedy is a Declaration of Absolute Nullity—not annulment. When foreign spouses and foreign divorces are involved, status changes do not bite in the Philippines until a court recognizes the foreign judgment and the PSA annotates the records. Strict compliance with Article 40, rigorous proof of foreign law, and careful sequencing are the difference between a clean slate and a legal quagmire.