Judicial declaration of nullity of marriage necessary

Persida Acosta

Persida Acosta

Dear PAO,
My sister married my brother-in-law in 2002. Their marriage was pretty much simple and peaceful until my sister learned that my brother-in-law was already married in Catanduanes, and that marriage is subsisting up to now. My sister demanded for my brother-in-law to leave their house, and she told him that she will be filing for the nullification of their marriage. He said it is no longer necessary as their marriage is void anyway since his first marriage was never nullified. I just want to ask, in behalf of my sister, if it is really no longer necessary to file a petition in court? My sister wants to end their marriage legally, so any advice you can give will be greatly appreciated. Thank you and more power.

Dear Abee,
A marriage is a permanent contractual union between a man and a woman. While there may be circumstances that may render a marriage null and void, the determination thereof does not depend on the parties themselves. Rather, the same must be brought to court and pertinent laws and jurisprudence shall be applied.

In the situation of your sister and brother-in-law, it may be said that theirs is a bigamous marriage considering that your brother-in-law contracted marriage with another woman prior to his marriage to your sister, and that marriage has not been dissolved or nullified by the court. This is in consonance with Article 35 of the Family Code of the Philippines, which provides, “The following marriages shall be void from the beginning: x x x (4) Those bigamous or polygamous marriages not falling under Article 41; x x x”

Notwithstanding the fact that the law above-mentioned is clear and unequivocal, there must still be a declaration coming from the court nullifying a marriage. As provided for under Article 40, Id., “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.” The Supreme Court emphasized that the necessity of obtaining a judicial declaration of nullity of marriage is not only for purposes of remarriage. It held, “x x x Crucial to the proper interpretation of Article 40 is the position in the provision of the word ‘solely.’ As it is placed, the same shows that it is meant to qualify ‘final judgment declaring such previous marriage void.’” “x x x That Article 40 as finally formulated included the significant clause denotes that such final judgment declaring the previous marriage void need not be obtained only for purposes of remarriage. Undoubtedly, one can conceive of other instances where a party might well invoke the absolute nullity of a previous marriage for purposes other than remarriage, such as in case of an action for liquidation, partition, distribution and separation of property between the erstwhile spouses, as well as an action for the custody and support of their common children and the delivery of the latter’s presumptive legitimes. In such cases, evidence needs must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity. x x x” (Roberto Domingo vs. Court of Appeals, G.R. No. 104818, September 17, 1993, 226 SCRA 572).

Accordingly, it is still necessary for your sister to file a petition for nullity of marriage before the family court of the place where she resides if she truly intends to lawfully terminate her marriage with your brother-in-law.

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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  1. Abee’s question was about whether her sister required a declaration of nullity from a court of law for a marriage that was really not a marriage. And the reply was all about nullifying a previous marriage. Her supposed brother-in-law’s reply was right all along. No court can possibly nullity a non-marriage. All it can do is recommend a charge of bigamy against the “brother-in-law”.

    • Tito, PAO answered it clearly, her sister should file for petition for nullity of marriage, even if the marriage is void ab initio there should be a judicial declaration..

  2. Dear Pao, I’m married 18 years now. But after 5 years we separate with my husband. Start when he left us with our kid’s he never show us his set or give us support. When we separate i’ll got news after 11years (in 2013) he got married to another woman. They have children’s now. And the one thing also is their marriage is registered to NSO. How about our marriage? Still powerful or not? It’s possible I can marry also second for second time? Please help me! Thanks Let Let