ISSUE Is a judicial declaration of nullity of first marriage is required before

Issue is a judicial declaration of nullity of first

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ISSUE: Is a judicial declaration of nullity of first marriage is required before contracting subsequent second marriage in order not to be guilty of bigamy? HELD: Yes. Persons intending to contract a second marriage must first secure a judicial declaration of nullity of their first marriage. If they proceed with the second marriage without the judicial declaration, they are guilty of bigamy regardless of evidence of the nullity of the first marriage. Assuming without conceding that petitioner’s first marriage was solemnized without a marriage license, petitioner remains liable for bigamy. Petitioner’s first marriage was not judicially declared void . Nor was his first wife Gina judicially declared presumptively dead under the Civil Code. As early as 1968, this court held in Landicho v. Relova, et al, that parties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question. A party who contracts a second marriage assumes the risk of being prosecuted for bigamy. The commission that drafted the Family Code considered the Landicho ruling in the wording of Article 40 of the Family Code which states that, “the absolute nullity of previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.” Should the requirement of judicial declaration of a nullity be removed as an element of the crime of bigamy, Article 349 of RPC becomes useless.
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