Overview

Under Philippine law, a second marriage contracted while a first marriage is still subsisting is generally (1) void from the start and (2) potentially criminal as bigamy—unless it falls within a narrow set of legally recognized exceptions (most notably, a prior spouse being judicially declared presumptively dead), or the “first marriage” is shown to be non-existent in law (rare, fact-specific situations).

This article explains the rules from both angles:

Civil law: Is the second marriage valid or void?
Criminal law: Can the contracting spouse be prosecuted for bigamy?

The Governing Laws (Philippine Context)

1) Civil validity of the second marriage (Family Code)

A marriage is void if it is bigamous or polygamous, unless it is the special case allowed by the Family Code (the “presumptive death” rule).

Key Family Code concepts relevant here:

A marriage is void if contracted while a prior marriage subsists (bigamous), as a rule.
Even if the first marriage is void, a spouse generally cannot remarry safely without a judicial declaration of nullity (the Family Code explicitly requires a court declaration before remarriage).
Legal separation does not end the marriage bond; it does not authorize remarriage.

2) Criminal liability (Revised Penal Code, Bigamy)

Bigamy is punished under Article 349 of the Revised Penal Code. It criminalizes the act of contracting a second marriage while the first remains legally effective.

Importantly: A marriage can be void civilly and still trigger bigamy criminally, because criminal liability often turns on whether the accused contracted a second marriage during the subsistence of the first, not on whether the second marriage later gets declared void.

Civil Law: Is the Second Marriage Valid?

General Rule: The second marriage is void ab initio

If Marriage #1 exists (meaning it has not been terminated by death, or dissolved/invalidated in a way recognized by law before Marriage #2), then Marriage #2 is void from the beginning.

Common scenarios where Marriage #2 is void:

The first spouse is alive and the first marriage was never annulled/declared void.
The spouses are merely separated in fact.
There is a decree of legal separation (still married).
There is a pending case to nullify/annul Marriage #1 but no final judgment yet.
The first marriage was void, but there was no prior judicial declaration of nullity before contracting Marriage #2 (general rule under the Family Code).

The “Judicial Declaration” Rule: Why it matters even if the first marriage is void

A frequent misconception is:

“If my first marriage was void, I can remarry anytime.”

Under the Family Code, a spouse generally must first obtain a judicial declaration of nullity of the first marriage before contracting the next marriage. Without it:

The second marriage is at high risk of being void, and
The person may still face a bigamy case, because at the time of the second marriage, the first marriage is treated as existing in law until a court says otherwise.

Practical takeaway

If you believe Marriage #1 is void (e.g., psychological incapacity, lack of license in many situations, prohibited marriages, etc.), you still usually need a court decree first.

The Main Exception: Presumptive Death (Marriage can be valid despite prior marriage)

When a second marriage may be valid even if the first spouse is not proven dead

A second marriage may be valid under the Family Code if:

A spouse has been absent for the required period (commonly 4 years, or 2 years in circumstances of danger of death), and
The present spouse has a well-founded belief that the absent spouse is already dead, and
A court issues a judicial declaration of presumptive death (summary proceeding) before the subsequent marriage.

If these requirements are met, the second marriage is not treated as bigamous and is valid—at least until the law terminates it in the event of reappearance.

What happens if the absent spouse reappears?

If the previously absent spouse reappears, the subsequent marriage may be terminated under the Family Code rules (commonly through recording requirements). The key point is: the second marriage is not automatically illegal from the start if it was entered into properly under presumptive death.

Other “Clean Exit” Situations Where a Second Marriage Can Be Valid

A second marriage can be valid if the first marriage has already ended before the second marriage through legally recognized means, such as:

Death of spouse (death certificate and proper civil registry records matter).
Final judgment declaring the first marriage null and void, with proper registration/recording (crucial in practice for civil status and future transactions).
Final judgment of annulment (voidable marriage annulled) with compliance/recording.
Recognition of foreign divorce (special rule):
- Generally relevant when one spouse is a foreign national and a divorce abroad is validly obtained; the Filipino spouse may need judicial recognition in the Philippines before remarrying safely.
- This is a technical area; the safest approach is to secure a Philippine court recognition first before contracting a new marriage.

Criminal Law: Bigamy (Article 349) Explained

Elements of bigamy (simplified)

Bigamy is generally established when:

The offender was legally married.
The first marriage was not legally dissolved, and the absent spouse was not declared presumptively dead by court.
The offender contracts a second (or subsequent) marriage.
The second marriage would have been valid if not for the subsistence of the first.

Bigamy is a public offense

Unlike adultery/concubinage (which are private crimes requiring an offended spouse’s complaint), bigamy is generally prosecuted as a public crime: prosecution is in the name of the People of the Philippines, and cases often begin through complaints/affidavits but are not limited the same way as private crimes.

“But my first marriage was void!” — why that often doesn’t stop a bigamy case

Philippine jurisprudence has repeatedly treated a later declaration of nullity of the first marriage as not automatically erasing criminal liability for bigamy that occurred when the second marriage was contracted.

Reasoning in plain terms: Bigamy looks at the situation at the time of the second marriage. If Marriage #1 was still on record and had not been ended/invalidated in a legally effective way, the act of contracting Marriage #2 can complete the crime.

The Narrow “No Marriage to Begin With” Situation (Rare but important)

There are unusual cases where the accused argues that the “first marriage” was non-existent, not merely void—such as where an essential component of marriage was completely absent (for example, no actual solemnization occurred).

If a court accepts that no marriage existed in law at all, then an element of bigamy fails (because the accused was not “legally married” in the first place).

Warning: This is highly fact-dependent, often hard to prove, and not something to rely on casually. In real-life practice, the safer assumption is: if there is a marriage record, treat it as legally consequential until corrected by a court.

Civil Effects and Real-World Consequences of a Bigamous (Void) Second Marriage

Even aside from criminal exposure, a void second marriage can create cascading issues:

1) Property relations

Property outcomes can depend on:

Whether one party acted in good faith,
Whether one or both were legally incapacitated to marry (e.g., already married),
Actual contributions to the property.

Philippine law uses different regimes for unions where parties can marry each other versus unions where parties cannot (e.g., because one is still married). In many bigamy situations, property sharing is typically limited to actual contributions, and bad faith can cause forfeitures.

2) Status of children

Children’s status can vary depending on the specific legal situation and what the law provides for particular void marriages. This area can become technical quickly and often requires case-specific analysis (dates, good faith, records, and the precise ground for nullity/voidness matter).

3) Records, benefits, and transactions

Void marriages can affect:

SSS/GSIS benefits,
inheritance and succession,
insurance beneficiaries,
legitimacy/registrations,
passport/visa applications,
property sales and titles,
“civil status” entries in PSA records.

Common Scenarios (Quick Answers)

“We separated years ago. Can I remarry?”

No. Separation (even long-term) does not end the marriage. A second marriage is void and may be bigamy.

“We have a legal separation decree. Can I remarry?”

No. Legal separation does not dissolve the marital bond.

“My first marriage is void. Can I remarry without going to court?”

Generally, no. The Family Code generally requires a judicial declaration of nullity before remarriage.

“My spouse has been missing for years. Can I remarry?”

Possibly, but only after you obtain a court declaration of presumptive death (and meet the other requirements) before remarrying.

“If my first marriage is later annulled/declared void, does that erase bigamy?”

Often, no. Bigamy is commonly evaluated at the time the second marriage was contracted, and later court rulings do not automatically extinguish criminal liability.

How to Remarry Safely (Practical Checklist)

To avoid having the second marriage void and avoid bigamy exposure, the safest path is:

Confirm the status of Marriage #1
- Is the spouse dead (with documentation)?
- Is there a final court judgment of nullity/annulment?
- Is there a valid presumptive death declaration?
- Is there a foreign divorce that still needs Philippine judicial recognition?
Secure the necessary court judgment first
- Nullity (void marriage) or annulment (voidable marriage), or
- Declaration of presumptive death, or
- Judicial recognition of foreign divorce (when applicable).
Ensure proper registration/recording
- Court decisions affecting civil status must typically be recorded with the civil registry to make them effective for civil status tracking and prevent future conflicts.

Key Takeaways

If the first marriage still exists in law, the second marriage is generally void and may constitute bigamy.
A later declaration that the first marriage is void does not automatically protect someone from bigamy liability for contracting the second marriage earlier.
The primary “legal doorway” to a valid second marriage while the first spouse is missing is the court declaration of presumptive death obtained before remarriage.
In practice: do not remarry based on assumptions (e.g., “void anyway,” “missing for years,” “we’re separated”)—Philippine law is formal and record-driven in this area.

Final Note (Non-advice)

This is a general legal discussion in the Philippine context. If you want, describe your fact pattern (dates of marriages, whether there’s a court case, whether the spouse is missing, nationality, and what documents exist), and I can map the likely issues and the safest legal route in a structured way.