We need your advice regarding the problem of the son of our household helper. According to our helper, her son was married to his pregnant girlfriend four months before his 18th birthday. And after almost a decade, they are now living separately and have their own families already. Now, my helper wants her son to marry again, this time to his common-law wife. Can her son remarry considering that he was underaged during his first marriage? Is the first marriage still binding? Please advise us. Thank you, and God bless!
It appears from your narration that the marriage of the son of your helper is void from the beginning because of his lack of legal capacity to get married considering that he was still under the legal age of eighteen (18) at the time of his marriage.
Article 35 of the Family Code of the Philippines enumerates the kinds of marriages that are considered void, which include marriages involving underaged parties, to wit:
“Art. 35. The following marriages shall be void from the beginning:
Those contracted by any party below eighteen years of age even with the consent of parents or guardians;
Considering that this provision squarely applies to the situation of your helper’s son, it is clear that his marriage to his then pregnant girlfriend is void from the beginning.
It is important to note, however, that notwithstanding the above-cited provision, a person who lacked legal capacity during his marriage may not automatically remarry. The law requires that the absolute nullity of a previous marriage based on a final judgment by the court declaring that the previous marriage was void has to be invoked for purposes of remarriage (Article 40, Ibid.). In other words, there has to be a court declaration that the first marriage was void before the person involved in that marriage can remarry.
Because of this requirement, your helper’s son has to file a petition for declaration of nullity of marriage to formally ask the court to declare his previous marriage as void from the beginning. Your helper’s son has to prove in his petition that he was in fact underaged at the time of his first marriage so that the court may rightfully declare his first marriage to be void. And should your helper’s son get a favorable decision from the court, this will allow him to remarry without legal impediment.
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 email@example.com