• Void marriage can be questioned even after death of either party

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    My uncle passed away last year. Now that my cousins are settling his properties, a lady introduced herself to be my uncle’s second wife. She showed them their marriage certificate but it appears that their marriage is not valid because they were married in 1994, but my uncle got married to my aunt (mother of my cousins) in a Christian ceremony in 1981. Their marriage was never annulled and they have been together until my aunt passed away a month before my uncle died. My cousins want to know if they can file for the nullity of their father’s second marriage considering that their father is no longer here to file the action in court. We look forward to your advice. Thank you and more power.
    Faye

    Dear Faye,
    A person who has contracted marriage may not contract a subsequent marriage during the subsistence of the first marriage. There are only two exceptions to the aforementioned rule: (1) If it is in compliance with pertinent Muslim laws; (2) If, 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. The absence of only two years shall be sufficient in case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of our Civil Code. Nevertheless, the spouse present must institute a summary proceeding for the declaration of presumptive death of the absentee, in order for him/her to contract the subsequent marriage, without prejudice to the effect of reappearance of the absent spouse (Article 41, Family Code of the Philippines).

    Since your uncle contracted marriage in a Christian ceremony with your aunt in 1981, they lived together until your aunt passed away, and their marriage not having been nullified or annulled by the court, it may be said that his second marriage which was contracted in 1994 is void for being a bigamous marriage. As provided under Article 35 of our Family Code: “The following marriages shall be void from the beginning: x x x (4) Those bigamous or polygamous marriages not failing under Article 41; x x x”

    Accordingly, a petition for declaration of absolute nullity of marriage may be instituted to declare such second marriage null and void. We wish to inform you that the Family Code is silent as to who can file a petition for declaration of nullity of a marriage. Unlike in the annulment of marriage where the Code specifically provides who may file the said petition and the period of the filing thereof, there is no mention as to who can file for the absolute nullity of a marriage. Nevertheless, the Supreme Court has declared in the case of Niñal vs. Badayog (G.R. No. 133778, March 14, 2000) that: “x x x Consequently, void marriages can be questioned even after the death of either party but voidable marriages can be assailed only during the lifetime of the parties and not after death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly valid. 22 That is why the action or defense for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only the parties to a voidable marriage can assail it but any proper interested party may attack a void marriage. x x x” (Emphasis supplied)

    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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