Text of the provision
Art. 40. 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.
(n)
Family Code of the Philippines, Executive Order No. 209, approved July 6, 1987. The Code took effect on August 3, 1988 (Republic v. Orbecido III, G.R. No. 154380, October 5, 2005). Reproduced in full. The notation (n) indicates a new provision with no direct Civil Code antecedent.
What this article means
This short provision answers one of the most common and most dangerous questions in Philippine family law: if my first marriage was void, can I simply remarry? The answer is no. Even a marriage that is void from the beginning must first be declared void by a court in a final judgment before either party may lawfully contract a new marriage.
The point is easy to miss because a void marriage is, in theory, no marriage at all. But Article 40 makes the judicial declaration the sole basis on which the nullity may be invoked for remarriage. A person who is personally convinced their first marriage was void, and who remarries without obtaining that declaration, is exposed to a charge of bigamy — the second marriage having been contracted while, in the eyes of the law, the first was not yet declared void.
Why this matters in practice
Article 40 is the reason a declaration of nullity is worth pursuing even when the ground seems obvious. It is also why the distinction between a void marriage (Article 35, Article 36, 37, 38) and a voidable one (Article 45) does not remove the need to go to court. Both routes require a final judgment before remarriage; they differ in the grounds and in whether the marriage was valid in the meantime.
Related provisions
- Article 35 and Article 36 — the principal void-marriage grounds a court must declare.
- Article 41 — the parallel requirement of a declaration of presumptive death before remarrying an absent spouse.
- Article 45 — annulment of voidable marriages, which likewise requires a court judgment.
Cases interpreting this article
- The leading authorities on Article 40 and the resulting exposure to bigamy will be added here as each is verified against primary sources.