First union should be voided before remarriage

Persida Acosta

Persida Acosta

Dear PAO,
My wife and I had been separated for eight years when I met my second wife in 1999. Since my first marriage was null and void as I was only 17 years old then, I married my second wife. My first marriage was already declared null and void, but only after my second marriage. If ever my first wife will file a bigamy case against me, will it still prosper now that the court has declared our marriage null and void?

Dear Yeck,
There is no question that your marriage to your first wife is null and void, considering that you were still a minor when the same was celebrated. However, even if it is null and void, you cannot contract a subsequent marriage without first going to court and have your first marriage declared null and void. Otherwise, your second marriage is likewise null and void, and at the same time you may be held liable for bigamy. This is according to Article 40 of the Family Code of the Philippines, which provides:

“Art. 40. 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.”

On the other hand, bigamy is defined and punished in accordance with the provision of the Revised Penal Code of the Philippines, to wit:

Art. 349. Bigamy. — 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.”

As held by the Supreme Court in the case of People of the Philippines vs. Edgardo V. Odtuhan(G.R. No. 191566, July 17, 2013), before a valid subsequent marriage can be contracted, it is incumbent upon the parties to the first marriage to have the same judicially declared null and void, if not, the subsequent marriage is null and void and the parties thereto may be held liable for bigamy. An excerpt from the decision of the aforesaid case reads:

“The Family Code has settled once and for all the conflicting jurisprudence on the matter. A declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense. It has been held in a number of cases that a judicial declaration of nullity is required before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral.

What makes a person criminally liable for bigamy 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. xxx”

Likewise, the petition you filed praying for the declaration of nullity of your first marriage did not extinguish your criminal liability after you contracted a subsequent marriage. The Supreme Court in the abovementioned case, explained:

“Respondent, likewise, claims that there are more reasons to quash the information against him, because he obtained the declaration of nullity of marriage before the filing of the complaint for bigamy against him. Again, we cannot sustain such contention. In addition to the discussion above, settled is the rule that criminal culpability attaches to the offender upon the commission of the offense and from that instant, liability appends to him until extinguished as provided by law and that the time of filing of the criminal complaint or information is material only for determining prescription.”

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


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1 Comment

  1. Margie de Guzman on

    Dear Atty. Persida Acosta,
    Good day. My husband and I have been separated for 15 years..We have one son,who is 17 years now.No communication for 15 years,no support..Then last 2004, he filed for nullity of marriage in Pasay RTC.When i get a new marriage contract at NSO this year,i found out that i am still married.Knowing too that he already obtained a new family having one child.. Now i want to have my own family atty. I have been through a lot of sacrifices since i am a solo parent..I have now a British boyfriend and he wants to marry me and we truly love each other..One thing that worries me is about my status which is still married..I cannot afford the annulment fees,i don’ t have that much money..My question is, can i marry my bf outside my country which is Philippines?Can i file a divorce outside my country?
    Thank you so much Atty.Acosta..your reply would be greatly appreciated..

    Respecfully yours,