FAMILY CODE OF THE PHILIPPINES

Title I

MARRIAGE
CHAPTER 3

VOID and VOIDABLE MARRIAGES

Article 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)

It does not follow that if a marriage is void, the spouses can just remarry. This new provision of
the law requires that for purposes of remarriage, the previous void marriage must first be
declared void.

The rule in Article 40 of the Family Code reaffirms the rule that even if the marriage is void,
there has yet to be a judgment declaring it void, for it is solely on the basis of that final judgment
that a party can remarry. But remarriage is not the sole purpose of declaration of nullity of a
marriage, as it can be declared void for other purposes.

Article 40 of the Family Code applies only to a situation where the previous marriage suffers
from nullity while the second marriage does not. Under Article 40 of the Family Code, what
requires a judicial declaration of nullity is the previous marriage, not the subsequent marriage.
Article 40 does not apply to a situation where the first marriage does not suffer from any defect
while the second if void.

CASE:
ROBERTO DOMINGO, petitioner, vs.
COURT OF APPEALS and
DELIA SOLEDAD AVERA
represented by her Attorney-in-Fact MOISES R. AVERA, respondents.
G.R. No. 104818 September 17, 1993

In Roberto Domingo vs. CA, et al., G.R. No. 104818, September 17, 1993, 44 SCAD 955, Delia
and Roberto were married. Unkown to Delia, Roberto was previously married to Emerlinda dela
Paz; hence, she filed a petition for declaration of nullity of the second marriage as Emerlinda
sued them for bigamy. Roberto was unemployed and totally dependent upon Delia as she was
working in Saudi Arabia. In one of her vacations, she discovered that he was cohabiting with
another woman and that he was disposing their properties without her consent. Roberto filed a
Motion to Dismiss on the ground that the petition stated no cause of action it being superfluous
and unnecessary, their marriage being void. The motion was denied. Instead of answering, he
filed a special civil action for certiorari and mandamus which the Court of Appeals dismissed.
ISSUE:

Whether or not a petition for judicial declaration of a void marriage is necessary. If in the
affirmative, whether the same should be filed only for purposes of remarriage.

HELD:
Yes. A declaration of the absolute nullity of marriage is now explicitly required either as a cause
of action or a ground for defense. Where the absolute nullity of a previous marriage is sought to
be invoked for purpose of contracting a second marriage, the sole basis acceptable in law for the
said projected marriage be free from legal infirmity is a final judgment declaring the previous
marriage void.

The requirement for a declaration of absolute nullity of a marriage is also for the protection of
the spouse who, believing that his or her marriage is illegal and void, marries again. With the
judicial declaration of the nullity of his or her first marriage, the person who marries again
cannot be charged with bigamy.

Article 40 as finally formulated included the significant clause denotes that final judgment
declaring the previous marriage void need not be obtained only for purposes of remarriage. A
person can conceive of other instances other than remarriage, such as in case of an action for
liquidation, partition, distribution and separation of property between the spouses, as well as an
action for the custody and support of their common children and the delivery of the latters'
presumptive legitimes. In such cases, however, one is required by law to show proof that the
previous marriage was an absolute nullity.

SC denied the instant petition. CA’s decision is affirmed.

Reference: Family Code of the Philippines

By Judge Ed Vincent S. Albano & Co-Authors 2017 edition