1) Why this topic is a legal minefield in the Philippines

In the Philippines, marriage is treated as a status with strong public policy protection. The default rule is simple:

If a person already has an existing valid marriage, they generally cannot marry again.
A second marriage during the lifetime of the first spouse is usually:
1. void from the beginning (a “void” marriage), and
2. a potential basis for criminal prosecution for bigamy.

This remains true even when the prior marriage happened abroad, and even when the person shows you a foreign divorce—because Philippine law has special rules on foreign marriages and foreign divorces.

This article explains:

when a second marriage is void,
when bigamy risk is high (and when it may be defensible),
how foreign marriages/divorces interact with Philippine rules,
and what practical steps people typically take to avoid disaster.

2) Core concepts you must understand

A. “Void” vs “voidable” marriages

Void marriage: treated as having never existed legally (though, in practice, courts still require proper court action for clarity, records, and remarriage).
Voidable marriage: valid until annulled.

Bigamy-related marriages are generally void, not merely voidable.

B. The Family Code “bigamous marriage” rule

Under the Family Code, a marriage is void if it is bigamous or polygamous—meaning one party was already married and the earlier marriage was still legally in force at the time of the later marriage.

Key point: If your partner is still married (even if abroad), your marriage in the Philippines can be void.

C. Criminal law is separate from family law

Even if the second marriage is void, bigamy can still be charged if the legal elements are present. Voidness does not automatically erase criminal exposure.

3) The crime of bigamy (Revised Penal Code)

A. The basic definition

Bigamy is committed when a person:

is legally married, and
contracts another marriage,
before the first marriage is legally dissolved or the absent spouse is judicially declared presumptively dead.

B. Usual elements prosecutors try to prove

Courts commonly focus on:

A first valid marriage (or at least a marriage presumed valid until declared otherwise)
No legal dissolution of that marriage at the time of the second marriage
A second marriage ceremony that appears to comply with legal form
The person knew (or is presumed to know) the first marriage still existed

C. Penalty and prescription (how long risk can linger)

Bigamy is punishable by prisión mayor (a serious penalty). Crimes with this level of penalty typically have a long prescriptive period (commonly treated as 15 years for afflictive penalties). Practically, exposure can hang over someone for years.

D. Who can file?

Bigamy is a public offense. It often starts with a complaint from a spouse, a “second spouse,” or someone with knowledge, but prosecution is in the name of the State.

4) The “judicial declaration first” rule that traps people (Article 40)

A major Philippines-specific rule:

Even if a first marriage is void, a person generally must obtain a judicial declaration of nullity before they can validly remarry.

This is often summarized as: “Void marriage still needs a court declaration before remarriage.”

Why it matters

If someone says: “My first marriage was void anyway, so I remarried,” Philippine courts have repeatedly treated this as dangerous, especially in criminal cases.
A later court ruling declaring the first marriage void usually does not erase the fact that the second marriage was contracted while the first marriage was still legally presumed existing.

A narrow but important nuance (the “no marriage at all” situation)

There are rare scenarios where the “first marriage” was so defective that legally, no marriage existed (for example, absence of a marriage ceremony). In such situations, courts have in some cases found bigamy does not lie because an essential element—an actual first marriage—is missing.

But this is not a “safe” assumption; it is fact-specific and risky to rely on without counsel.

5) If the prior marriage happened abroad: is it recognized here?

A. Recognition of foreign marriages

As a general principle, marriages valid where celebrated are recognized in the Philippines, subject to certain public policy and capacity rules.

However:

Capacity to marry of Filipinos is governed by Philippine law (nationality principle).
So, if a Filipino lacked capacity (e.g., already married), marrying abroad doesn’t cure that.

B. Proof problems are real

Even if a foreign marriage exists, it must be proven in Philippine proceedings using proper evidence:

authenticated/apostilled documents (depending on the country),
and compliance with Philippine evidence rules.

In practice, lack of paperwork does not guarantee safety; it often just delays (or complicates) cases.

6) The biggest confusion: foreign divorce

A. The general rule: divorce is not available to Filipinos

As a baseline:

A divorce obtained by a Filipino as a Filipino abroad is generally not recognized to restore capacity to remarry (subject to important modern exceptions involving citizenship status at the time of divorce).

B. The critical exception: Article 26(2) of the Family Code

A Filipino may be allowed to remarry if:

they were married to a foreigner, and
a valid divorce abroad was obtained by the foreign spouse (or in a way that effectively capacitated the foreign spouse), and
the divorce capacitated the Filipino spouse to remarry under the foreign spouse’s national law.

Philippine jurisprudence has expanded interpretation in some scenarios (including when citizenship changes occur), but the safest summary is:

Foreign divorce can help a Filipino remarry only through specific legal pathways, and usually requires a Philippine court process to recognize it.

C. Recognition is not automatic

Even if the divorce is valid abroad, in the Philippines a Filipino typically needs:

a petition for judicial recognition of foreign divorce (and often recognition of the foreign judgment),
proof of the foreign law under which the divorce is valid,
and then registration with the local civil registry/PSA after the court decision.

Until that happens, the Filipino may still appear “married” in Philippine records—and worse, may still be treated as married for purposes of remarriage and bigamy risk.

D. A classic trap: “But my partner showed me a divorce paper!”

A foreign divorce decree shown informally is not the same as:

a divorce decree that has been recognized by a Philippine court, and
properly recorded.

Without recognition/recording, a later marriage can still be attacked as void, and bigamy exposure can remain.

7) The “already married abroad” scenarios—and what Philippine law tends to do with them

Scenario 1: Your partner is Filipino, married abroad, no recognized divorce/annulment/nullity

Highest risk.

Your partner lacks capacity to marry.
Any marriage you contract with them is likely void for bigamy.
Your partner is exposed to bigamy prosecution.
You may face serious collateral consequences (property, inheritance, child legitimacy issues).

Scenario 2: Your partner is foreign, married abroad, not divorced

Still high risk.

If the foreigner is still married under their national law, they lack capacity.
A Philippine marriage with them can be void due to prior existing marriage.

Scenario 3: Your partner is Filipino, first marriage was to a foreigner, and foreigner obtained a divorce abroad

Potentially curable—but only if the divorce is:

valid, and
judicially recognized in the Philippines (commonly required), restoring the Filipino’s capacity to remarry.

Until recognition, remarriage is risky.

Scenario 4: Your partner says the first spouse is “missing” or “long gone”

Not enough. Philippine law requires a judicial declaration of presumptive death before remarriage under this ground.

8) Presumptive death: the “missing spouse” exception (Article 41)

A subsequent marriage may be valid if:

the prior spouse has been absent for the required period (commonly 4 years, or 2 years in danger situations), and
the present spouse has a well-founded belief the absent spouse is dead, and
crucially: the present spouse obtains a court declaration of presumptive death.

No court declaration = the later marriage is void, and bigamy risk remains.

Also:

If the missing spouse later turns out alive, the subsequent marriage can be affected, and complex rules apply—especially if there was bad faith.

9) Validity of the second marriage vs. bigamy liability: how they interact

It’s tempting to think: “If the second marriage is void, there is no bigamy.” That’s not reliably true.

Courts often treat bigamy as focusing on the act of contracting a marriage while another exists, especially where the second marriage had outward formalities.

However, where the “second marriage” lacked essential requisites so severely that it is not considered a marriage at all (e.g., no ceremony), that can undermine the “contracting a marriage” element.

This is highly fact-driven.

10) Consequences of marrying someone still married abroad

A. Your marriage can be declared void

A void marriage can be attacked by:

a spouse,
heirs (in certain contexts),
or the State (depending on the case posture), and has ripple effects across civil status and property.

B. Bigamy prosecution (for the already-married spouse)

The already-married spouse is the usual accused. The “new spouse” is typically a witness, though conspiracy/participation theories can arise in unusual fact patterns.

C. Property consequences: Articles 147 and 148 (unions in fact)

If a marriage is void, property acquired during the relationship may be governed by:

Article 147: when both parties acted in good faith and were not legally impeded (or believed so), a co-ownership regime can apply.
Article 148: when one or both parties are in bad faith or there is an existing marriage, property rules become harsher; contributions matter more, and forfeiture can apply.

If one party knew of the impediment (e.g., knew the other was still married), courts may treat them as in bad faith, which can reduce or eliminate claims.

D. Children

Children born from a void marriage are generally illegitimate under Philippine law, though they still have rights to support and inheritance under rules for illegitimate children. Issues may include:

surname use (including recognition/acknowledgment mechanisms),
support,
legitimation (only possible if parents later validly marry and other requirements are met—often impossible if impediments remain).

E. Immigration and foreign recognition issues

A void marriage in the Philippines can create major problems for:

spousal visas,
dependent benefits,
and succession planning, especially if foreign jurisdictions ask whether the marriage is valid under the law of the place where it was celebrated or where the parties are domiciled.

11) How Philippine courts handle foreign documents and foreign judgments (practical reality)

If you need to prove:

a foreign marriage,
a foreign divorce,
a foreign annulment/nullity, you generally need:

properly authenticated/apostilled documents, and
proper presentation in Philippine court, and
for divorces/judgments: a recognition proceeding, plus proof of relevant foreign law.

A common reason petitions fail is insufficient proof of the foreign law or improper proof of the foreign judgment.

12) “Due diligence” checklist before marrying someone with a possible prior marriage abroad

If there is any hint of a prior marriage (Philippines or abroad), people commonly secure:

PSA CENOMAR / Advisory on Marriages (for the Filipino party)
If there is a recorded prior marriage: PSA marriage certificate
If allegedly divorced abroad:
- divorce decree/judgment,
- proof it is final,
- proof of the foreign law basis,
- and evidence of Philippine judicial recognition (if needed) and civil registry annotation
If spouse allegedly deceased:
- death certificate (properly authenticated if foreign)
If spouse allegedly missing:
- court decision declaring presumptive death
If first marriage allegedly void/annulled:
- court decision of nullity/annulment,
- certificate of finality,
- and proof of registration/annotation

If these are not available, the risk is not “small”; it can be existential for the relationship’s legal stability.

13) FAQs (common questions people ask)

“If we marry abroad instead of the Philippines, will it be valid?”

If one party lacks capacity (because they are still married), marrying abroad does not magically fix capacity—especially for Filipinos, whose capacity is tied strongly to Philippine law.

“What if my partner’s first marriage was abroad and never reported to the PSA?”

Non-registration does not necessarily mean non-existence. A foreign marriage can still exist and can still be proven. Lack of PSA record is not a shield.

“What if the first marriage is void—can we just remarry?”

Philippine law generally expects a judicial declaration of nullity before remarriage, and criminal exposure can remain if one remarries without it.

“What if I didn’t know my partner was still married?”

Your lack of knowledge may matter for civil consequences (good faith property rules), and it can matter factually in some criminal contexts—but it does not automatically validate the marriage. The already-married spouse is still at significant bigamy risk.

“Can a foreign divorce let a Filipino remarry?”

Sometimes—most notably under Article 26(2)—but typically only after a Philippine court recognition process and proper registration/annotation.

14) Practical takeaway

If a person is already married abroad and that marriage has not been conclusively ended in a way recognized under Philippine law (death, validly recognized divorce where allowed, annulment/nullity, or presumptive death declaration), then:

A new marriage is likely void, and
the already-married spouse faces serious bigamy exposure, and
you may inherit years of litigation over status, property, and family rights.

In real-world terms, the safest route before remarriage is almost always:

clear the first marriage through the proper Philippine legal process (nullity/annulment recognition, divorce recognition where applicable, or presumptive death), and
ensure proper civil registry/PSA annotation.

If you want, share a hypothetical fact pattern (citizenships, where the first marriage happened, whether any divorce exists, where you plan to marry), and I’ll map out the likely legal classification and risk points in a structured way.