Legal Options When Your Spouse Has an Undissolved Prior Marriage (Philippines)

General information only; not legal advice. Family law is fact-sensitive—consult a Philippine lawyer or your local Family Court/Prosecutor for a case strategy.

1) The core problem, in one line

If your spouse had a prior marriage that still existed (not annulled/voided, not dissolved by death or a qualifying foreign divorce) when you married, your marriage is generally void from the beginning (void ab initio) for being bigamous.

2) Governing legal framework (map of the law)

Family Code, Art. 35(4) – A marriage contracted by any person during the subsistence of a prior marriage is void.
Family Code, Art. 40 – For purposes of remarriage, the absolute nullity of a previous marriage must first be judicially declared.
Family Code, Art. 41 – Presumptive death: A spouse may remarry if the other has been absent for the statutory period (generally 4 years, or 2 years in danger-of-death situations) and a court declares the absentee presumptively dead before the new marriage.
Family Code, Arts. 147 & 148 – Property relations in void marriages (co-ownership rules; good-faith vs bad-faith partner; forfeiture rules).
Revised Penal Code, Art. 349 – Bigamy (criminal offense).
Rules on Declaration of Absolute Nullity/Annulment (A.M. No. 02-11-10-SC, as amended) – Procedure in Family Courts.
Article 26(2) (special rule) – If a foreign spouse validly obtains a divorce abroad that capacities the foreigner to remarry, the Filipino spouse is likewise capacitated to remarry in the Philippines.

3) Civil remedies you can pursue

A. Petition for Declaration of Absolute Nullity (Family Court—RTC)

When to file: You discover your spouse had an earlier undissolved marriage when your own was celebrated.

Goal: A court judgment declaring your marriage void ab initio (bigamy). This is what government agencies (PSA, DFA, banks) need to annotate records and correct civil status.

Key points & evidence

Two PSA marriage certificates: (i) the prior marriage of your spouse; (ii) your marriage to that spouse (both certified true copies).
No prior court dissolution: show absence of a decree annulling/voiding/dissolving the prior marriage before your wedding date.
Identity linkage: documents tying the same person to both marriages (IDs, CENOMAR hits, affidavits, photos, residency/employment records).
Good faith: prove you married in good faith (no knowledge of the prior marriage).

Procedure (high level)

File verified petition in the RTC-Family Court where you or the respondent resides.
The Public Prosecutor appears to guard against collusion.
Publication/notice requirements (the court will order).
Trial: your testimony, documentary evidence, possible testimony of the first spouse/records custodian.
Decision; upon finality, PSA annotation and updates to civil registries; you may resume maiden name.

Provisional reliefs you can ask for while the case is pending:

Support pendente lite for you/children;
Protection orders if there is violence (RA 9262);
Custody/visitation arrangements;
Hold-departure/return orders—as warranted by facts and rules.

B. Civil damages (separate or joined)

If you were deceived, you may sue for moral/exemplary damages and attorney’s fees based on fraud or quasi-delict. Evidence of bad faith by your spouse (concealment of prior marriage) strengthens this.

C. Property partition under Articles 147/148

Because a bigamous marriage is void, there is no conjugal partnership/ACP. Instead:

If at least one party acted in good faith (believed in good faith that the marriage was valid):
- Art. 147 applies (cohabitation not contrary to law).
- Properties acquired by both through their joint efforts are co-owned in equal shares, unless you prove unequal contributions.
- The bad-faith party’s share may be forfeited in favor of the common children; in their absence, the share may go to the innocent party (subject to jurisprudential nuances).
If both acted in bad faith, Art. 148 applies (cohabitation adulterous/bigamous):
- Only properties acquired by both through actual joint contributions are co-owned in proportion to contributions.
- No share for the party who did not contribute.
- The bad-faith partner’s share may be forfeited in favor of the common children (or as equity requires).

Excluded: Properties acquired before cohabitation, donations propter nuptias between the parties (void in void marriages), and fruits not attributable to joint efforts.

4) Criminal route: Bigamy (Art. 349 RPC)

Elements (typical formulation):

The offender contracted a first marriage;
The first marriage was valid and subsisting;
The offender subsequently contracted a second marriage;
The first spouse was alive when the second marriage occurred;
The second marriage had the essential requisites (even if later void).

Evidence kit for a complainant

PSA certified copies of both marriages;
Proof that no decree of nullity/annulment/divorce (as applicable) existed before the second wedding;
Identity linkage;
If claiming good faith, your own evidence of lack of knowledge.

Important jurisprudential cautions (in plain English): – The safest legal path before any remarriage is to first obtain a court decree declaring the earlier marriage void (Family Code Art. 40). – A later court declaration that the second marriage is void does not erase criminal bigamy already committed by contracting it. – Arguments that the first marriage was void may be complex and are not automatic shields in a bigamy case unless established within doctrinal requirements. Get counsel early to assess defenses and timing.

Penalties: Bigamy is punished by prisión mayor (with accessory penalties). Conviction may also impact civil rights and employment.

5) Children: status, surnames, support, and custody

Status/legitimacy
- Children from a void bigamous marriage are generally illegitimate (different from children conceived or born before a final judgment of nullity under Art. 36, who are treated differently by statute).
Surname
- Under current rules on illegitimate children, they may use the father’s surname if there is acknowledgment in the birth record, an admission of paternity, or a court order.
Support
- Both parents owe support regardless of marital status; you can file for support (interim and final).
Custody
- Best-interests-of-the-child standard applies; mothers of children under seven generally enjoy tender-age preference, subject to exceptions for compelling reasons.
Succession
- Illegitimate children inherit by intestacy but at statutory shares distinct from legitimate children; a void marriage does not create spousal legitime rights.

6) Name and civil status after nullity

Once the judgment becomes final and annotated on your PSA records, you may resume your maiden name. Government IDs, bank records, and passports can be updated using the final judgment and PSA annotated copies.

7) Special scenarios

A. Prior spouse presumed dead?

If your spouse relied on presumptive death (Art. 41):

There must be a prior court declaration of presumptive death before the subsequent marriage.
If they skipped this, the later marriage is exposed to nullity and the spouse may face bigamy.

B. Foreign divorce affecting a prior mixed marriage

If the prior marriage was to a foreigner and that foreign spouse secured a valid foreign divorce capacitating the foreigner to remarry, the Filipino party is also capacitated to remarry in the Philippines (Art. 26(2)).
But the foreign divorce’s recognition in the Philippines must be sought via a petition (Rule 108/Rule 39 route, depending on strategy) before relying on it for remarriage.

C. Both marriages void?

If the first marriage was truly void ab initio (e.g., absolutely no marriage license and no valid exception; or fatal ceremony defect), it still generally requires a judicial declaration (Art. 40) to remarry safely. Without it, contracting another marriage is extremely risky—both civilly and criminally.

8) Evidence & pleading checklists

For a nullity petition (bigamy ground)

PSA-certified prior marriage certificate of your spouse
PSA-certified your marriage certificate
No-record certifications for any decree dissolving the prior marriage as of your wedding date (e.g., court certifications, docket checks)
Identity linkage (IDs, affidavits of persons who know the spouse across both marriages)
Your good-faith proof (CENOMAR you obtained before marriage, disclosures from spouse, etc.)
Children’s birth certificates (for custody/support issues)
Property/asset list and proof of who contributed what (for Arts. 147/148)

For a bigamy complaint

Two PSA marriage certificates
Proof first spouse was alive on second wedding date
Proof no prior judicial nullity/annulment/divorce recognition existed
Witnesses/affidavits establishing identity and knowledge

9) Money, property, and exit planning

Inventory assets and debts; pull bank statements, titles, business records.
Tag which assets were acquired before cohabitation vs during; note who paid.
Decide on strategy: (a) file nullity + partition (Arts. 147/148), (b) pursue bigamy, or (c) both (civil and criminal can proceed).
Seek interim support, custody, protection orders where needed.
Upon final judgment, annotate with PSA promptly to avoid future record conflicts.

10) Frequently asked practical questions

Q1: I didn’t know about the prior marriage. Am I in trouble? A: You are not criminally liable for your spouse’s bigamy merely for having married them. Focus on a nullity petition, support/custody, and property rights under Arts. 147/148 as a good-faith spouse.

Q2: Can I remarry once the court voids our marriage? A: Yes—after the judgment is final and annotated (Art. 40 requires a judicial declaration of nullity of any previous marriage before remarriage).

Q3: Will my children be affected? A: They remain your children with full support rights and filiation; their legitimacy classification follows the Family Code rules for children from void marriages (generally illegitimate for bigamous unions). They can carry the father’s surname upon proper acknowledgment or court order.

Q4: Can we just sign a settlement instead of going to court? A: Private settlements cannot make a void marriage valid, but you may settle property, support, and custody issues by agreement (subject to court review when children are involved).

Q5: The first marriage was church-only (no civil license). Does it still matter? A: It may, depending on facts. Many “church-only” weddings still had civil effects. Assume nothing—verify through PSA and records.

11) Sample pleadings (skeletal forms)

A. Petition for Declaration of Absolute Nullity (Bigamy)

Republic of the Philippines Regional Trial Court – Branch __, Family Court, [City/Province] [Your Name], Petitioner, – versus – [Spouse’s Name], Respondent. PETITION

Petitioner and Respondent were married on [date] at [place] (Annex “A”).

Prior thereto, Respondent had contracted marriage with [Name] on [date] at [place] (Annex “B”), which subsisted on the date of the parties’ marriage.

No judicial decree had dissolved/respondent’s prior marriage as of [your wedding date].

Under Art. 35(4), the parties’ marriage is void ab initio for bigamy. Prayer: Declare the marriage void ab initio; order PSA annotation; grant support, custody/visitation, and partition per Arts. 147/148; and other just reliefs. [Verification & Certification against Forum Shopping]

B. Criminal Complaint-Affidavit for Bigamy

I, [Your Name], state that [Spouse] married [First Spouse] on [date] (Annex “A”) and later married me on [date] (Annex “B”) while the first marriage subsisted. [First Spouse] was alive at the time. No prior court decree dissolved said first marriage. I charge [Spouse] with Bigamy (Art. 349).

12) Strategic tips

Verify everything with documents (PSA certificates, court certifications).
Don’t delay: property can be dissipated; ask for interim reliefs.
If you fear violence or coercion, seek VAWC protection (RA 9262).
Keep communications through counsel when possible; avoid self-incrimination traps for the other side if you are weighing a criminal case.
For property division, receipts, titles, and bank trails decide outcomes more than memory.

13) One-page action plan

Pull records from PSA (both marriages; children’s births).
Consult counsel; choose nullity (+ partition/support) and consider bigamy.
Secure assets: lists, titles, bank statements; seek interim support/custody if needed.
File petition; comply with prosecutor/publication steps.
On finality, annotate PSA; update IDs/passport; implement property partition.

14) Key takeaways

A marriage contracted while a prior marriage subsists is void ab initio.
To remarry safely, obtain a judicial declaration of nullity/dissolution first.
You can pursue civil nullity and criminal bigamy; choose timing strategically.
Property division follows Arts. 147/148, not conjugal rules; good-faith matters.
Children’s support and filiation are protected; coordinate custody in their best interests.

If you want, I can turn this into a fillable kit (petition, complaint-affidavit, evidence index, partition worksheet, and a checklist for PSA/ID updates) ready to print.