Woman whose marriage is void can’t cohabit with another man

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Persida Acosta

Persida Acosta

Dear PAO,
I have been married to my husband for three years when I discovered that he was already married to another woman (his first wife) who is still alive. I confronted him and he admitted that indeed he was already married prior to our marriage. I decided to leave him because of this. Two years after, I decided to go back to our province and met my childhood sweetheart. Since my marriage is null and void, I plan to cohabit with him. But my husband warned me that if I do so he will file a criminal case for adultery against us. Is this possible?
Elena

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Dear Elena,
Under the Family Code of the Phi¬lippines,a marriage is null and void if the same was contracted by a person during the subsistence of a previous marriage (Article 41).

Clearly, your marriage with your husband is null and void as the same was contracted during the existence of his previous marriage. Be that as it may, you are not at liberty to decide for yourself that since the said marriage is null and void, you may contract another marriage or enter into a new relationship.

A married woman who shall have a relationship with another man may give rise to adultery. Article 333 of the Revised Penal Code of the Philippines defines adultery as follows:

“Art. 333. Who are guilty of adultery. —Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void.

Adultery shall be punished by prision correccional in its medium and maximum periods.

xxx”

It is explicit from the above definition that a married woman who shall have sexual intercourse with a man not her husband commits adultery. Thus, you, being married to your husband, albeit null and void, may still be held liable for adultery if ever you will carry out your plan to cohabit with your childhood sweetheart or have a sexual relationship with him. The reason behind this was explained by the Supreme Court in an analogous case of Meynardo L. Beltran vs. People of the Philippines (G.R. No. 137567, June 20, 2000), to wit:

“Thus, in the case at bar it must also be held that parties to the marriage should not be permitted to judge for themselves its nullity, for the same must be submitted to the judgment of the competent courts and only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists for all intents and purposes. Therefore, he who cohabits with a woman not his wife before the judicial declaration of nullity of the marriage assumes the risk of being prosecuted for concubinage. The lower court therefore, has not erred in affirming the orders of the judge of the Metropolitan Trial Court ruling that pendency of a civil action for nullity of marriage does not pose a prejudicial question in a criminal case for concubinage.”

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 guide you with our opinion 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 dearpao@manilatimes.net

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4 Comments

  1. To cut the long story short, the marriage is null and void but the decision to declare this is via the courts. What you can do Elena is file 2 cases; a) File a case to declare your marriage null and void; b) if you still want file a case of bigamy against your former “husband”.

    • Bonifacio Claudio on

      Sir, the way you worded your advice in simple layman’s words makes the matter clear and understandable to the common people concerned. Could you be requested to do that kind of commentary on every PAO issue to clarify and help people on what legal actions need be considered and done. Would it be too much to literally look for a chance to do a good turn daily. More power and Chapeau, monsieur…

  2. Dear Pao, I was married since January 1997. Then, 2002 we separated and when we start separate we don’t have any communication or support to our kid’s. In June 2013, I’ll got news from NSO, my exhusband is he married again to another woman. I’ll found out this when i go to NSO to take my Sinomar and I found it he married again. And the one thing is their marriage is registered in NSO. How it is possible? And now they have 3 kid’s. How ccan i get my singleness? Please help me! Rosalie