Children born under void marriage can’t be legitimated

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Persida Acosta

Persida Acosta

Dear PAO,
I found out just recently that my father has been married to another woman before he married my mother. My mother knew that my father’s marriage was still subsisting when she got married to my father. My father had a child from his first marriage and is using the surname of my father. My father only lived with his first family for two years and had never seen each other until recently.

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I have three siblings and we all knew about our older sibling. Likewise, our older sibling knew about us and our father, but we never met each other in any way.

My questions are:
a) Is the marriage between my mother and my father legal?
b) Are we (my siblings and I) considered illegitimate children?
c) In case the members of the first family of my father demand for their share, do they have rights over the assets of my father?
d) Is there a way where we could make our family legal?
Mitch

Dear Mitch,
A bigamous marriage is one which was contracted when any or both of the contracting parties was still validly married to another person. Art. 35(4) of the Family Code said that those marriages that are bigamous or polygamous not failing under Article 41 are considered void. Article 41 of the said law provides:

“Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.”

From the foregoing provisions, it is clear that the marriage of your parents, having been entered into when your father was still validly married to another woman, is a bigamous marriage. It is prohibited by law and is considered void except when the same has been entered into by our Muslim brothers in accordance with the Muslim Code of the Philippines (Presidential Decree No. 1083).

A void marriage like that of your parents produces no legal effect. Consequently, you and your three other siblings are considered as illegitimate children. Children conceived and born outside a valid marriage are illegitimate.

Anent your query, if the first family of your father has rights to the assets of your father, the answer is yes. It is noted that they are the legitimate family of your father and as the legitimate family they have the right to the properties of your father. There is a presumption in law that all properties acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses is conjugal unless the contrary is proved. For all intents and purposes, absent any court order declaring the marriage of your father to his first wife as annulled, the first marriage still subsists and all the properties acquired by your father are presumed to be a part of the conjugal properties of your father and his first wife.

Article 147 of the Family Code finds no application in the present situation of your father and your mother, because a bigamous marriage is apparently not within the ambit of the said article. In the said marriage, the earnings of the bigamous spouse should belong to the real, actual and legal partnership (with the first spouse).

Relative to your question if there is a way that you could become the legal family, we are sorry to inform you that you cannot do anything to legalize your family. In the first place, the marriage of your father with your mother is a bigamous marriage, and as explained above, you are considered illegitimate children. Granting that at this point in time, your father will get an annulment and subsequently marry your mother, your status as illegitimate children shall not be changed. Under the law, children conceived outside a void marriage are considered as illegitimate children. Unlike the illegitimate children who were conceived when their parents could have been capacitated to marry each other, but chose not to get married, illegitimate children who were conceived under a void marriage cannot be legitimated by the subsequent marriage of their parents.

|Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

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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1 Comment

  1. Josie Asuncion on

    Dear PAO,
    My daughter and her 2 children were abandoned by my son in law from 2010. In February 2007, I was able to bring my son in law in Abu Dhabi and worked in the hotel where I used to work, but I resigned the following month. First few months, he’s okay in sending money to my daughter. But after 6 months the financial support was decreasing without my knowledge. My friends who were working in the same hotel, tipped me of that my son in law was having an affair with the co-staff. I confronted him over the phone, since I’m living in Dubai, but he denied. From March 2010, the financial support had stopped because of countless alibis. He stopped communicating with my daughter from June 2010. When I did my checking, I found out that he resigned from the hotel and he never informed my daughter. I learned that he was able to work in the cargo ship somewhere in Australia. Then we found out that he’s living with her mistress and already had 2 children with her. We learned that he’s now working in Qatar Airlines, catering department. My question is how can we oblige him to support my daughter and her 2 children on a regular basis. I’m the one supporting my daughter and her 2 children who are already in grade 7th and kinder 1. My daughter is not a warrior type. I’m residing in Dubai, but can you help me the steps to do, so I could do something for my grandsons welfare? I’m going to Philippines on December 2016. Can I come to your office by that time?

    Thank you very much and Godbless