Absence of marriage license does ‘not ipso’ facto make vows void

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Persida Acosta

Dear PAO,
My cousin got married in 2011. He and his wife were already in their late 20s at the time. They have been going out for a couple of months when he learned that she was pregnant. Because of this, they immediately decided to get married. He said someone helped them to get married at the City Hall and it pushed through even if they had no marriage license. Unfortunately, they separated last 2015, and my cousin is now contemplating getting married again with his current girlfriend. He just wants to know whether there will be legal repercussion/s on his part assuming he pushes through with this second marriage. Someone told him that he might end up in jail for bigam. But it is his honest belief that he cannot be charged with bigamy because his marriage in 2011 is not even valid since they had no marriage license at the time of the ceremony. Can you enlighten us on this? Thank you, and more power. Maan

Dear Maan,
A valid marriage license is one of the formal requisites to a valid marriage (Article 3 [2], Family Code of the Philippines). The absence thereof will render such marriage as null and void, except if it is one of those marriages mentioned under Articles 27, 31, 32 (Marriages in articulo mortis), 28 (Marriages in far areas), 33 (Marriages among Muslims or members of ethnic cultural communities) and 34 (Cohabition of five years) of the code. (Article 4 in relation to Article 35 (3), Id.)

In the situation which you have shared with us, it appears that there is no good reason for your cousin and his wife to dispense with the requirement of a valid marriage license at the time they contracted their marriage as they do not seem to fall squarely within any of the exceptions mentioned under our law. Accordingly, their marriage may be categorized as void ab initio or null and void.

This notwithstanding, we submit that your cousin cannot, at the moment, contract another marriage with his current girlfriend as he is still married. It is, thus, essential for him to file a petition first in court so as to lawfully declare their marriage null and void and for the court to grant the same. The existence of a basis to seek the nullity of their marriage does not ipso facto make their marriage null and void. To reiterate, he needs to first secure a final judgment declaring their marriage void before either of them can contract a subsequent marriage. This is clear from the provisions of Article 40 of the Family Code of the Philippines. It is stated therein, “The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.”


If he decides to push through with this second marriage, he will run the risk of being criminally charged for bigamy. It is clearly provided for under Article 349 of the Revised Penal Code of the Philippines, which states, “The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.”

Further, as explained by our Supreme Court in the case of Lasanas vs. People (G.R. No. 159031, June 23, 2014; ponente: Associate Justice Lucas Bersamin), reiterating the ruling in the case of People vs. Odtuhan (G.R. No. 191566, July 17, 2013, 701 SCRA 506, 515):“x x x What makes a person criminally liable for bigamy x x x is when he contracts a second or subsequent marriage during the subsistence of a valid marriage. Parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration, the presumption is that the marriage exists. Therefore, he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy. x x x” (Emphasis supplied)

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

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