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.
