Short answer. Yes, you can be charged with bigamy. Family Code Article 40 requires a final court judgment declaring the first marriage void before you can validly remarry. Believing your first marriage was void — even correctly — is not a substitute for the court declaration. Without it, remarrying is legally risky.
What the law says
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.
Family Code, Article 40 — Judicial Declaration Before Remarriage. Read the full provision →
What Article 40 requires
Article 40 uses the word solely deliberately. 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. No other basis is accepted — not your personal belief that the first marriage was defective, not a lawyer's opinion, not a church annulment, and not the passage of time. A Philippine court must have issued a final judgment of nullity before the remarriage happens. If that judgment does not exist, the first marriage is treated as subsisting for purposes of the bigamy analysis.
Why personal belief is not enough
Many people who remarry without a court declaration genuinely believe their first marriage was void — perhaps the first ceremony lacked a marriage license, or there was a psychological incapacity issue. The problem is that only a court can make that determination official. Until a judgment is rendered, the state treats both marriages as potentially valid. This puts you at risk of bigamy regardless of how sound your legal reasoning about the first marriage's invalidity might be. A void marriage is void from the beginning, but declaring it so is a judicial act that requires a court proceeding.
The bigamy exposure
Bigamy under Philippine law is contracting a second or subsequent marriage while a prior marriage is still legally subsisting. If no court has declared your first marriage void, the first marriage is legally subsisting for this purpose — and marrying again creates bigamy exposure. The fact that the first marriage may truly have been void from the start does not automatically shield you from a criminal charge. That is the practical consequence Article 40 was designed to address: it closes the gap between the theoretical nullity of a marriage and the legal recognition of that nullity.
What to do if you are in this situation
If you have already remarried without obtaining a court declaration, the situation is serious and you should speak with a lawyer about your specific circumstances without delay. If you are considering remarriage and believe your first marriage was void, the safest path is to file a petition for declaration of nullity and obtain a final judgment before proceeding. The process takes time and cannot be shortcut. A declaration of presumptive death (relevant when a spouse has been absent) follows a different procedure under a separate Family Code provision and has different consequences — do not confuse the two.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- Luisito G. Pulido vs. People of the Philippines, G.R. No. 220149, July 27, 2021 — read the decision on LawPhil →
- Vincent Paul G. Mercado vs. Consuelo Tan, G.R. No. 137110, August 1, 2000 — read the decision on LawPhil →
- Salvador S. Abunado, et al. vs. People of the Philippines, G.R. No. 159218, March 30, 2004 — read the decision on LawPhil →
- Noel A. Lasanas vs. People of the Philippines, G.R. No. 159031, June 23, 2014 — read the decision on LawPhil →