Dear Atty. Duran-Schulze,
My sister married in 1996 and was separated from her husband after one year, then she got married again to a different man in 2017. Is the second marriage legal?
Dear Writer,
Legal Separation is a judicial process wherein the spouses are to live separately from each other and the obligation of mutual support between the spouses ceases, but the marriage bond is not severed. Legally separated couples are not permitted to remarry, since their marriage is still considered valid and subsisting.
Even if your sister is legally separated from her husband, the second marriage is still considered invalid and void. In your sister’s case, it was not even stated if the separation was a mere separation in fact or a legal separation that was filed and approved in court.
The second marriage is invalid for being bigamous. According to Article 35 (4) of the Family Code of the Philippines, bigamous or polygamous marriages not falling under Article 41 of the same code shall be void from the beginning.
Bigamy is defined in Article 349 of the Revised Penal Code stating that “it is imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved.”
Further, before a person can contract another marriage, he/she must first obtain a Judicial Declaration of Nullity of a previous marriage annulling or voiding the marriage. Under Article 40 of the Family Code of the Philippines, 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. Hence, without the court’s declaration of nullity of such marriage, the marriage between the first parties subsists, rendering the second marriage invalid and void.
Unless there is a judicial declaration of nullity of previous marriage, then that is the only time her marriage to another man will be valid, since her first marriage is declared annulled by court. Note that judicial declaration of nullity of previous marriage must first happen before any succeeding marriage can be considered valid.
Do you have any further questions that need to be addressed? Talk to our team at Duran & Duran-Schulze Law to know more. You may reach us at (+632) 8478 5826 or +63 917 194 0482, or email info@duranschulze.com for more information.
3 Responses
Dear attorney,
I need your professional advice. We filed a BIGAMY case just recently on my brother and the mother of his kids, right now still in the preliminary stage. Here is the story, my brother met this woman and became his leave in partner since 1996. They got 3 kids, but they cannot get married due to the woman is already married in September 1991 with another man. My brother decided to marry her on December 21, 2005, dispite the woman still married. The woman filed a Petition for the Declaration of a Void Marriage, and this petition was granted on December 21, 2015. My brother filed a petition for Declaration of Nullity of Bigamous Marriage under paragraph 4, Article 35 of the Family Code of the Philippines. Some of his sworn statement is not true specially the fact that he said that he is not aware that the woman is already married since 1996. He is very much aware of the woman status when he married her. My question now is if they can still be charge of BIGAMY.
Dear atty. Itatanong kolang po kung valid po ang marriage certificate ko kasi po pangalawa pala akong pinakasalan ng asawa ko, 3 days ago ko lang po nalaman nung kumuha ng cenomar ang asawa ko. 1990 po kami kinasal pero naghiwalay po kami 1997 pero hindi po kami nag file ng legal separation. Thank you very much po
Dear atty. Itatanong kolang po kung valud po ang marriage certificate ko kasi po pangalawa pala akong pinakasalan ng asawa ko, 3 days ago ko lang po nalaman nung kumuha ng cenomar ang asawa ko. 1990 po kami kinasal pero naghiwalay po kami 1997 pero hindi po kami nag file ng legal separation. Thank you very much po