In the Philippines, where the law does not recognize absolute divorce for its general citizenry, the sanctity of marriage is guarded with significant rigor. However, when a person enters into a second or subsequent marriage while a prior valid marriage still exists, the law steps in—not to dissolve the union, but to declare that it never legally existed in the first place.
This legal state is known as Absolute Nullity, and the ground is Bigamy.
1. The Legal Foundation: Article 35(4)
Under the Family Code of the Philippines, specifically Article 35(4), marriages contracted by any person during the subsistence of a previous valid marriage are void ab initio (void from the beginning).
The Rule of Absolute Nullity
A bigamous marriage is not "voidable" (valid until annulled); it is void, meaning it has no legal effect from day one. However, for purposes of remarriage or the settlement of estates, the law strictly requires a Judicial Declaration of Absolute Nullity. One cannot simply decide a marriage is bigamous and marry a third time; the court must formally "bless" that realization.
The Article 40 Requirement
Article 40 of the Family Code is the procedural trap many fall into. It states that the absolute nullity of a previous marriage may be invoked for purposes of remarriage only on the basis of a final judgment declaring such previous marriage void. Even if the first marriage was clearly void (e.g., a sibling marriage or a previous bigamous one), you must get a court order saying so before marrying again, or the second marriage is itself bigamous.
2. Civil Nullity vs. Criminal Bigamy
It is vital to distinguish between the Civil Case (Nullity) and the Criminal Case (Bigamy).
| Feature | Declaration of Nullity (Civil) | Prosecution for Bigamy (Criminal) |
|---|---|---|
| Legal Basis | Family Code (Art. 35) | Revised Penal Code (Art. 349) |
| Objective | To change the civil status to "Single" | To punish the offender with imprisonment |
| Standard of Proof | Preponderance of Evidence | Proof Beyond Reasonable Doubt |
| Result | Marriage is declared void | The offender goes to prison (Prision Mayor) |
3. The Exception: Presumptive Death (Article 41)
The only instance where a person can marry while a previous spouse is alive (but missing) is under Article 41. If a spouse has been absent for four consecutive years (or two years in case of "danger of death" like a plane crash), and the present spouse has a well-founded belief that the absent spouse is dead, they must file a summary proceeding for the Judicial Declaration of Presumptive Death.
Without this judicial declaration, the second marriage is bigamous and void, even if the first spouse actually died later.
4. The Judicial Process
The process for declaring a bigamous marriage void is governed by the Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages.
Step 1: Filing the Petition
The petition is filed in the Family Court of the province or city where either the petitioner or the respondent has been residing for at least six months.
Step 2: Summons and Answer
The court issues a summons to the respondent. If the respondent cannot be found (often the case in bigamy where the person may have fled), service by publication may be allowed.
Step 3: Investigation by the Public Prosecutor
The court will order the Public Prosecutor to conduct an investigation to determine if collusion exists between the parties. The State’s role is to ensure that the parties aren't just "agreeing" to end the marriage without a real legal ground.
Step 4: The Trial
The petitioner must present evidence of:
- The existence of the first marriage (via a PSA Marriage Certificate).
- The existence of the second marriage (via a PSA Marriage Certificate).
- Proof that the first marriage was still subsisting at the time the second was celebrated.
Step 5: Judgment and Registration
If the court finds the marriage bigamous, it will issue a Decree of Absolute Nullity. This must be registered in the Local Civil Registry where the marriage was recorded and the Philippine Statistics Authority (PSA).
5. Consequences of the Declaration
Status of the Parties
The parties are restored to the status of "Single." They are legally free to marry (provided they follow the registration requirements of the judgment).
Status of Children
Under Article 165 of the Family Code, children conceived or born of marriages which are void from the beginning are considered illegitimate.
- Exception: Children born of a second marriage contracted under Article 41 (Presumptive Death) before the reappearance of the absent spouse are considered legitimate.
Property Relations
Since the marriage never existed, the property regime is generally governed by Article 147 or 148 of the Family Code (Co-ownership), rather than Absolute Community of Property. Only the properties acquired through actual joint contribution of money, goods, or industry will be divided between them.
Note on Good Faith: If one party entered the bigamous marriage in good faith (unaware of the existing first marriage), they may be entitled to certain protections regarding property, while the party in bad faith (the bigamist) may forfeit their share of the net profits in favor of the common children.