I married in 1997 without a marriage license when I was 24 years old. My husband and I did not live together, though, because we were very immature to face the obligations of a married couple. We had no communication for ten years now, and I am already married to another person whom I am living with in another country.
I want to file a Declaration of Nullity of my first marriage. Do I have to be physically present in the Philippines? Can I just hire a lawyer to process the case? God bless!
Before we address your query, let us first discuss the pertinent provisions of the Family Code which are relevant to your legal problem.
Article 40 of the Family Code, states, to wit:
“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.”
From the foregoing provision, it can be gleaned that before any married person, whose prior marriage is null and void, can contract a second marriage, it is required that his or her prior marriage must be declared by the court as null and void. In your case, you entered into another marriage without first securing a judgment from the court that your previous marriage is null and void.
Granting that your previous marriage is null and void because of the absence of a valid marriage license, still, you should have not contracted a subsequent marriage without first securing a final judgment before a competent court declaring that the marriage you contracted in 1997 is void ab initio.
With the assumption that you are a citizen of the Philippines but with a foreign country residency, at present, you have two (2) subsisting void marriages. Even your subsequent marriage with your present spouse is void for being contrary to Article 40 of the Family Code. Granting that even if your subsequent marriage was celebrated at a foreign country, it is worthy to note that Article 15 of the Family Code is a relevant provision because under the said provision, “laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.” Therefore, the fact that you and your present spouse are residing abroad does not make your subsequent marriage valid. In your situation, you have two (2) marriages which should be declared void.
Regarding your query if you need to be in the Philippines to have your prior marriage be declared null and void, the answer is in the affirmative. You must be present at the trial of your petition and prove your case.
Pursuant to Section 5(3) on the “Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages”, the petition for declaration of nullity of marriage must be verified and accompanied by a certification against forum shopping. The verification and certification must be signed personally by the petitioner. No petition may be filed solely by counsel or through an attorney-in-fact. It is also provided that if the petitioner is in a foreign country, the verification and certification against forum shopping shall be authenticated by the duly authorized officer of the Philippine Embassy or legation, consul general, consul or vice-consul or consular agent in the said country.
Thus, your presence during the trial of the case is required. However, for the purpose of filing your petition with the Office of the Clerk of Court of the appropriate trial court where you will file your petition, you may ask your lawyer to file the case for you after you have authenticated the verification and certification against forum shopping before the duly authorized officer of the Philippine Embassy or legation, consul general, consul or vice-consul or consular agent in the country where you are residing.
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 firstname.lastname@example.org