Under Article 40 of the Family Code, even if a prior marriage is void from the beginning, a person cannot simply treat it as non-existent and remarry. They must first obtain a final judgment declaring the prior marriage void. Remarrying without that judicial declaration of nullity exposes the person to a charge of bigamy, because until the court declares the first marriage void, it is legally deemed valid for the purpose of remarriage. The declaration is also needed to annotate the PSA record and to remarry lawfully.
Here is a trap that lands well-meaning Filipinos in a bigamy case: believing that because a first marriage was void, they are automatically free to remarry. Article 40 of the Family Code says otherwise.
The Rule
Article 40 provides that the absolute nullity of a previous marriage may be invoked for purposes of remarriage only on the basis of a final judgment declaring such previous marriage void. In plain terms: even if your first marriage was void from the start — no license, bigamous, or void under Article 36 — you cannot remarry until a court has declared it void and that judgment is final.
Why a Court Declaration Is Required
Logically, a void marriage produces no legal effect — so why the court case? The law makes this requirement to prevent people from being judges of their own marriages. If anyone could privately decide that their prior marriage was void and simply remarry, chaos and fraud would follow. So the State insists on a judicial determination: only a court, after a proper proceeding, may declare the prior marriage void for the purpose of freeing the parties to remarry. Until then, the law treats the first marriage as subsisting for remarriage purposes.
The Bigamy Risk
This is the sharp edge of Article 40. A person who remarries without first obtaining the final declaration of nullity of their prior void marriage can be prosecuted for bigamy. The Supreme Court has convicted people in exactly this situation: the accused believed the first marriage was void and remarried, but because there was no prior judicial declaration, the second marriage was bigamous. The belief that the marriage was void is no defense — the law required the court declaration first.
The Practical Consequences
- You must file and win a petition for declaration of nullity of the void first marriage before you can remarry;
- The judgment must be final and executory — not merely a favorable decision that is still appealable; and
- The decree must be annotated on the PSA marriage record, so your civil status reflects that you are free to marry.
What About the Foreign-Divorce and Presumptive-Death Situations?
The same theme runs through related situations. A Filipino whose foreign divorce should free them must first obtain judicial recognition of the foreign divorce. A spouse who wants to remarry because the other disappeared must obtain a declaration of presumptive death. In each case, a court order comes first — you cannot self-determine your freedom to remarry.
Practical Advice
- Never assume a void first marriage lets you remarry — get the final declaration of nullity first, or risk a bigamy conviction.
- Wait for the judgment to become final and have it annotated on your PSA record before setting a new wedding.
- If you already remarried without the declaration, get advice immediately to regularize your status and understand your exposure.
Frequently Asked Questions
If my first marriage is void, can I just remarry? No. Under Article 40, you must first obtain a final judgment declaring the prior marriage void before you can remarry. Until then, the law treats the first marriage as subsisting for remarriage purposes.
Why do I need a court case if the marriage was void anyway? To prevent people from being judges of their own marriages. The State requires a judicial determination that the prior marriage was void before the parties are free to remarry.
Can I be charged with bigamy if I believed the first marriage was void? Yes. Remarrying without a prior judicial declaration of nullity is bigamy, and the belief that the marriage was void is not a defense. The Supreme Court has convicted people in exactly this situation.
What must happen before I can set a new wedding? You must win a petition for declaration of nullity of the void first marriage, the judgment must be final and executory, and the decree must be annotated on your PSA marriage record.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you need a declaration of nullity before you can remarry, our firm can handle it and protect you from a bigamy risk. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.