When a person "contracts a second or subsequent marriage before the former marriage has been legally dissolved," he is guilty of bigamy (Article 349, Revised Penal Code). Under our Family Code which took effect on 3 August 1988, "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."

That is why jurisprudence, time and again, reminds us that there must first be a judicial declaration of nullity of the previous marriage before a person can contract a subsequent one. Absent that, not only is the succeeding marriage void, but it is bigamous, exposing the parties to criminal liability. Does this rule absolutely hold in all cases?

In this case, without obtaining a judicial declaration of nullity of her first marriage, the wife contracted a subsequent one with her second husband. She married her first husband in 1972, then her second husband in 1979. In 2001, her second husband filed for the declaration of nullity of their marriage on grounds of bigamy. The wife argued there was no bigamy since the first marriage was void in the first place. She and her first husband never obtained any marriage license and were not members of the minister's congregation who officiated their marriage. These are grounds for nullity. Being void, she did not obtain any judicial imprimatur (although she did later). The trial court declared the marriage null and void under the Family Code, being bigamous.

On appeal, the appellate court reversed the findings of the lower court. It found the second marriage not bigamous. The marriages took place in 1972 and 1979, while the Family Code took effect only in 1988. Accordingly, the Civil Code, in effect at the time of the two marriages, applied. Under the Civil Code, the second marriage is valid and binding.

The aggrieved husband sought relief from the Supreme Court. The latter ruled against him. It declared, "The validity of a marriage and all its incidents must be determined in accordance with the law in effect at the time of its celebration. In this case, the law in force at the time Lea contracted both marriages was the Civil Code. The parties' children were also born while the Civil Code was in effect, i.e. in 1979, 1981 and 1985. Hence, the Court must resolve this case using the provisions under the Civil Code on void marriages, in particular, Articles 80, 81, 82 and 83 (first paragraph); and those on voidable marriages are Articles 83 (second paragraph), 85 and 86."

Under the Civil Code, a void marriage differs from a voidable marriage in the following ways: (1) a void marriage is nonexistent — i.e., there was no marriage from the beginning — while in a voidable marriage, the marriage is valid until annulled by a competent court; (2) a void marriage cannot be ratified, while a voidable marriage can be ratified by cohabitation; (3) being nonexistent, a void marriage can be collaterally attacked, while a voidable marriage cannot be collaterally attacked; (4) in a void marriage, there is no conjugal partnership, and the offspring are natural children by legal fiction, while in voidable marriage there is a conjugal partnership and the children conceived before the decree of annulment is considered legitimate; and (5) "in a void marriage no judicial decree to establish the invalidity is necessary," while in a voidable marriage, there must be a judicial decree.

(To be continued)