Article 40 of the Family Code of the Philippines provides that:
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.
One issue that arises with respect to the necessity of a judicial declaration of nullity of a first marriage for purposes of remarriage is whether the requirement applies to a marriage celebrated during the effectivity of the New Civil Code. The fact that the first marriage was celebrated under the New Civil Code is no reason per se to argue that the requirements of Article 40 of the Family Code are inapplicable to a remarriage. We have to distinguish between two situations: a) when the remarriage happened during Family Code effectivity, and b) when the remarriage happened during New Civil Code effectivity.
When the remarriage happens during Family Code effectivity, Article 40 of the Family Code is given retroactive effect. In Atienza v. Brillantes, Jr (A.M. No. MTJ-92-706, March 29, 1995) where the second marriage happened during Family Code effectivity (second marriage was on December 4, 1991 in Los Angeles, California), the Supreme Court said that ‘Article 40 is applicable to remarriages entered into after the effectivity of the Family Code on August 3, 1988 regardless of the date of the first marriage‘. This is consistent with the decision of the Supreme Court in the case of People vs Odtuhan (GR 171904, 7 Aug 2013) where the first marriage was on July 2, 1980 and the second marriage was on October 28, 1993.
When the first marriage and remarriage happened prior to the effectivity of the Family Code, the recent case of Montañez vs Cipriano (GR 181089, 22 Oct 2012) seemingly adopted an unqualified rule that a judicial declaration of nullity of the first marriage was required for all remarriages celebrated under New Civil Code effectivity. In Montañez, the first marriage happened in April 8, 1976 while the second marriage happened in January 24, 1983. The Court held that:
Anent respondent’s contention in her Comment that since her two marriages were contracted prior to the effectivity of the Family Code, Article 40 of the Family Code cannot be given retroactive effect because this will impair her right to remarry without need of securing a judicial declaration of nullity of a completely void marriage.
We are not persuaded.
In Jarillo v. People,[36][G.R. No. 164435, June 29, 2010, 622 SCRA 24.] where the accused, in her motion for reconsideration, argued that since her marriages were entered into before the effectivity of the Family Code, then the applicable law is Section 29 of the Marriage Law (Act 3613),[37][Section 29 of Act No. 3613 (Marriage Law), which provided: / Illegal marriages . — Any marriage subsequently contracted by any person during the lifetime of the first spouse shall be illegal and void from its performance, unless: / (a) The first marriage was annulled or dissolved; / (b) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or the absentee being generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, the marriage as contracted being valid in either case until declared null and void by a competent court.] instead of Article 40 of the Family Code, which requires a final judgment declaring the previous marriage void before a person may contract a subsequent marriage. We did not find the argument meritorious and said:
As far back as 1995, in Atienza v. Brillantes, Jr .,[alex: A.M. No. MTJ-92-706, March 29, 1995, 243 SCRA 32] the Court already made the declaration that Article 40, which is a rule of procedure, should be applied retroactively because Article 256 of the Family Code itself provides that said “Code shall have retroactive effect insofar as it does not prejudice or impair vested or acquired rights.” The Court went on to explain, thus:
The fact that procedural statutes may somehow affect the litigants’ rights may not preclude their retroactive application to pending actions. The retroactive application of procedural laws is not violative of any right of a person who may feel that he is adversely affected. The reason is that as a general rule, no vested right may attach to, nor arise from, procedural laws.
In Marbella-Bobis v. Bobis, the Court pointed out the danger of not enforcing the provisions of Article 40 of the Family Code, to wit:
In the case at bar, respondent’s clear intent is to obtain a judicial declaration of nullity of his first marriage and thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is to disregard Article 40 of the Family Code, contract a subsequent marriage and escape a bigamy charge by simply claiming that the first marriage is void and that the subsequent marriage is equally void for lack of a prior judicial declaration of nullity of the first. A party may even enter into a marriage aware of the absence of a requisite – usually the marriage license – and thereafter contract a subsequent marriage without obtaining a declaration of nullity of the first on the assumption that the first marriage is void. Such scenario would render nugatory the provisions on bigamy.[38][Jarillo vs People, supra note 36, at 25-26 . (Citation omitted)]
While Montañez seemingly adopted an unqualified rule, the earlier case of Ty vs CA (GR 127406, 27 Nov 2000) has arguably adopted a qualified rule where if the second marriage was contracted under New Civil Code effectivity the parties must comply with the requirements of Article 40 (that is, contract a subsequent marriage after obtaining a judicial declaration of nullity of the first marriage) only if the second marriage was contracted after the Supreme Court’s decision in Wiegel vs Sempio-Diy (G.R. No. L-53703, 19 August 1986). This qualified view is parallel to the view of Justice Alicia V. Sempio-Diy in her book Handbook on the Family Code of the Philippines (pages 60-1 citing Ty vs CA, where ‘if the second marriage took place and all its children were born before the Wiegel case and the Family Code, there is no need for a judicial decree of nullity of the first marriage’ — this quote comes from Ty’s digest of Apiag v. Cantero, (1997) 268 SCRA 47 (1997)).
The case of Ty states that ‘[a]s to whether a judicial declaration of nullity of a void marriage is necessary, the Civil Code contains no express provision to that effect. Jurisprudence on the matter, however, appears to be conflicting.’ After enumerating the conflicting decisions, the Supreme Court held that there was no need to obtain a judicial declaration of nullity of the first marriage (on the ground of lack of marriage license) before remarrying since the remarriage ‘was entered into in 1979, before Wiegel. At that time, the prevailing rule was found in Odayat, Mendoza and Aragon.’ The pertinent portion of the Supreme Court Decision in Ty is as follows:
At the outset, we must note that private respondent’s first and second marriages contracted in 1977 and 1979, respectively, are governed by the provisions of the Civil Code. The present case differs significantly from the recent cases of Bobis v. Bobis[7][G.R. No. 138509, July 31, 2000.] and Mercado v. Tan,[8][G.R. No. 137110, August 1, 2000. In his dissenting and concurring opinion, Justice Vitug opined that the necessity of a judicial declaration of nullity of a void marriage for the purpose of remarriage should be held to refer merely to cases where it can be said that a marriage, at least ostensibly, had taken place. No such judicial declaration of nullity, in his view, should still be deemed essential when the “marriage,” for instance, is between persons of the same sex or when either or both parties had not at all given consent to the marriage. Indeed, it is likely that Article 40 of the Family Code has been meant and intended to refer only to marriages declared void under the provisions of Articles 35, 36, 37, 38 and 53 thereof.] both involving a criminal case for bigamy where the bigamous marriage was contracted during the effectivity of the Family Code,[9][E.O. No. 209, which took effect on August 3, 1988] under which a judicial declaration of nullity of marriage is clearly required.
Pertinent to the present controversy, Article 83 of the Civil Code provides that:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and before any person believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.
As to whether a judicial declaration of nullity of a void marriage is necessary, the Civil Code contains no express provision to that effect. Jurisprudence on the matter, however, appears to be conflicting.
Originally, in People v. Mendoza,[10][45 Phil 739 (1954).] and People v. Aragon,[11][100 SCRA 1033 (1957).] this Court held that no judicial decree is necessary to establish the nullity of a void marriage. Both cases involved the same factual milieu. Accused contracted a second marriage during the subsistence of his first marriage. After the death of his first wife, accused contracted a third marriage during the subsistence of the second marriage. The second wife initiated a complaint for bigamy. The Court acquitted accused on the ground that the second marriage is void, having been contracted during the existence of the first marriage. There is no need for a judicial declaration that said second marriage is void. Since the second marriage is void, and the first one terminated by the death of his wife, there are no two subsisting valid marriages. Hence, there can be no bigamy. Justice Alex Reyes dissented in both cases, saying that it is not for the spouses but the court to judge whether a marriage is void or not.
In Gomez v. Lipana,[12][33 SCRA 614 (1970).] and Consuegra v. Consuegra,[13][37 SCRA 315 (1971).] however, we recognized the right of the second wife who entered into the marriage in good faith, to share in their acquired estate and in proceeds of the retirement insurance of the husband. The Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage was still subsisting, still there was a need for judicial declaration of such nullity (of the second marriage). And since the death of the husband supervened before such declaration, we upheld the right of the second wife to share in the estate they acquired, on grounds of justice and equity.[14][See also Lao v. Dee, 45 Phil 739 (1924) and Pisalbon v. Bejec, 74 Phil 88 (1943).]
But in Odayat v. Amante (1977),[15][77 SCRA 338 (1977).] the Court adverted to Aragon and Mendoza as precedents. We exonerated a clerk of court of the charge of immorality on the ground that his marriage to Filomena Abella in October of 1948 was void, since she was already previously married to one Eliseo Portales in February of the same year. The Court held that no judicial decree is necessary to establish the invalidity of void marriages. This ruling was affirmed in Tolentino v. Paras.[16][22 SCRA 525 (1983).]
Yet again in Wiegel v. Sempio-Diy (1986),[17][143 SCRA 499 (1986).] the Court held that there is a need for a judicial declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in 1972. In 1978, she married another man, Wiegel. Wiegel filed a petition with the Juvenile Domestic Relations Court to declare his marriage to Lilia as void on the ground of her previous valid marriage. The Court, expressly relying on Consuegra, concluded that:[18][ Id. at 501.]
There is likewise no need of introducing evidence about the existing prior marriage of her first husband at the time they married each other, for then such a marriage though void still needs according to this Court a judicial declaration (citing Consuegra) of such fact and for all legal intents and purposes she would still be regarded as a married woman at the time she contracted her marriage with respondent Karl Heinz Wiegel; accordingly, the marriage of petitioner and respondent would be regarded VOID under the law. (Emphasis supplied).
In Yap v. Court of Appeals,[19][145 SCRA 229 (1986).] however, the Court found the second marriage void without need of judicial declaration, thus reverting to the Odayat, Mendoza and Aragon rulings.
At any rate, the confusion under the Civil Code was put to rest under the Family Code. Our rulings in Gomez, Consuegra, and Wiegel were eventually embodied in Article 40 of the Family Code.[20][The Family Code took effect on August 3, 1988] Article 40 of said Code expressly required a judicial declaration of nullity of marriage –
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.
In Terre v. Terre (1992)[21][211 SCRA 7 (1992).] the Court, applying Gomez, Consuegra and Wiegel, categorically stated that a judicial declaration of nullity of a void marriage is necessary. Thus, we disbarred a lawyer for contracting a bigamous marriage during the subsistence of his first marriage. He claimed that his first marriage in 1977 was void since his first wife was already married in 1968. We held that Atty. Terre should have known that the prevailing case law is that “for purposes of determining whether a person is legally free to contract a second marriage, a judicial declaration that the first marriage was null and void ab initio is essential.”
The Court applied this ruling in subsequent cases. In Domingo v. Court of Appeals (1993),[22][226 SCRA 572 (1993).] the Court held:
Came the Family Code which settled once and for all the conflicting jurisprudence on the matter. A declaration of absolute nullity of marriage is now explicitly required either as a cause of action or a ground for defense. (Art. 39 of the Family Code). Where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law for said projected marriage to be free from legal infirmity is a final judgment declaring the previous marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86, 99, 147, 148).[23][ Id.at 579]
However, a recent case applied the old rule because of the peculiar circumstances of the case. In Apiag v. Cantero, (1997)[24][268 SCRA 47 (1997)] the first wife charged a municipal trial judge of immorality for entering into a second marriage. The judge claimed that his first marriage was void since he was merely forced into marrying his first wife whom he got pregnant. On the issue of nullity of the first marriage, we applied Odayat, Mendoza and Aragon. We held that since the second marriage took place and all the children thereunder were born before the promulgation of Wiegel and the effectivity of the Family Code, there is no need for a judicial declaration of nullity of the first marriage pursuant to prevailing jurisprudence at that time.
Similarly, in the present case, the second marriage of private respondent was entered into in 1979, before Wiegel. At that time, the prevailing rule was found in Odayat, Mendoza and Aragon. The first marriage of private respondent being void for lack of license and consent, there was no need for judicial declaration of its nullity before he could contract a second marriage. In this case, therefore, we conclude that private respondent’s second marriage to petitioner is valid. [underscoring supplied]
It is submitted that the perceived variance between the ruling in Ty vs CA (GR 127406, 27 Nov 2000) and that of Montañez vs Cipriano (GR 181089, 22 Oct 2012) is more apparent than real. The decision of Ty vs CA (GR 127406, 27 Nov 2000) arguably espousing the view that only remarriages occurring after the decision of Wiegel vs Sempio-Diy (G.R. No. L-53703, 19 August 1986) (a view adopted by Justice Alicia V. Sempio-Diy) must require a prior declaration of nullity of the first marriage, is not inconsistent with the ruling of Montañez and the earlier case of Jarillo vs People (G.R. No. 164435, June 29, 2010). This is because while remarriage in Montañez occurred (January 24, 1983) prior to the decision of Wiegel vs Sempio-Diy (Wiegel was decided on 19 August 1986), the first marriage in Montañez was declared null and void on the ground of psychological incapacity — in fact, it was only in 2001 (under the effectivity of the Family Code) that the complaint for declaration of nullity was filed, and the decision voiding the first marriage was rendered only on July 18, 2003. It was only under the Family Code that the ground of declaring a marriage void due to psychological incapacity was added, a ground that did not exist under the New Civil Code — thus, a vested right to the application of the earlier rulings of Odayat, Mendoza and Aragon could not have existed because had the declaration of nullity case been filed under the effectivity of the New Civil Code, there was no way for the first marriage to have been declared void on the basis of psychological incapacity (an inexistent ground under the New Civil Code). The same observation may be made with respect to the decision of Jarillo vs People (G.R. No. 164435, June 29, 2010) cited by Montañez. The June 29, 2010 decision of Jarillo was a resolution of a motion for reconsideration of the Supreme Court’s decision on the main case of Jarillo vs People (G.R. No. 164435, 29 Sep 2009) on September 29, 2009 — the facts in the main case show that the first marriage happened (between Victoria Jarillo and Rafael Alocillo) on May 24, 1974; the second marriage (between Victoria Jarillo and Emmanuel Ebora Santos Uy) happened on November 26, 1979; it was during the effectivity of the Family Code that a decision declared the first marriage void ‘on the ground of Alocillo’s psychological incapacity’ (the decision was rendered on March 28, 2003).
– Atty. Alex Andrew P. Icao
Philippine Family Law perspectives 