Mom who marries after leaving husband, kid liable for bigamy

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Persida Acosta

Persida Acosta

Dear PAO,
My sister-in-law abandoned my brother and my niece three years ago. My brother said she had a change of heart and just left without a word. Since then, I have been helping my brother raise my niece. Just recently, I learned from my friend, who also knows my sister-in-law, that my sister-in-law got married in Butuan City. Is this valid? I mean, how can she do this if my brother is still alive and they have not legally separated or anything like that? Can you please enlighten me so that I can also explain to my brother the legalities of this matter. Thank you and more power.
Ms. Minty

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Dear Ms. Minty,
Under our civil laws, a person who has already entered into a contract of marriage may not engage in a second or subsequent marriage without having their subsisting marriage lawfully nullified or annulled, or in proper cases secure from the courts a declaration of presumptive death of the absent spouse. This is clear from the provisions of our Family Code. As stated therein:

Art. 35. 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

Art. 41. A marriage contracted by any person during 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 ab- sent spouse.

Accordingly, if your sister-in-law in fact entered into a subsequent marriage without seeking from the proper court the dissolution of her marriage with your brother or the annulment thereof, it may be said that such subsequent marriage is null and void. The fact that they have been living separately for about three (3) years will have no bearing, because physical separation of the spouses does not entitle either of them to enter into another or subsequent marriage.

Besides, she may be held criminally liable for bigamy. Pursuant to Article 349 of the Revised Penal Code of the Philippines, “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.”

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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