FAMILY CODE of THE PHILIPPINES
*Art. 40. The absolute nullity of a previous marriage be invoked for purpose of remarriage on the basis solely of a final judgement declaring such previous marriage void.
In this article, it talks about “bigamy”, bigamy has a three points of view : (1) where both marriages are valid in all aspects; (2) where the second marriage is void for reasons other than the existence of the first marriage; and (3) where the first marriage is void.
The question here is the psychological incapacity an element of legal capacity or of consent to marry? If it is neither, then the Supreme Court should have said that a marriage under Article 36 of the Family Code is more in the nature of avoidable marriage and thus, not a defense to bigamy and a marriage declared by law and judicially confirmed void from the beginning , is deemed valid for the purpose of a criminal prosecution for bigamy. consistent rulings that if the second marriage were void on grounds other than the existence of the first marriage ion, was there is no crime of bigamy. Article 40 of the Family Code is merely a rule of procedure It does not contemplates a situation of two void marriages: a prior existing void marriage and a second marriage that would have been valid had there not been a prior void marriage.
*Art.41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the subsequent marriage, the prior spouse had been absent for four consecutive years and spouse present has well-founded belief that the absent spouse was already dead. In cases of disappearance where there is danger of death under the circumstances set forth in the provisions of Art. 391 of the civil code, an absence of only two years shall be suffiecient.
Now suppose the present spouse validly remarry another person after the summary proceeding. Then after a few years, the absent spouse of the previous marriage suddenly reappeared. This will now be a case where a present spouse is “validly” married to two persons. Remember that the marriage with reappearing spouse was never severed. The subsequent marriage cannot be bigamous either. However, the conflict may be resolved by the filing of the reappearing spouse of an Affidavit of Reappearance in accordance with Article 42 of the Family Code. In such case, the subsequent marriage will automatically be terminated upon the recording of the Affidavit of Reappearance, except when the previous marriage is declared void ab initio. By this ruling of the Supreme Court, the appearance of the absentee spouse does not ipso jure terminate the subsequent marriage. This may cause some complications later. There will be no further issue if the reappearing spouse will assert locus standi on their marriage. The subsequent marriage will be void after some administrative procedures. This is without prejudice to the outcome of any judicial proceeding questioning the reappearance. An argumentative situation now comes if the reappearing spouse chooses to do nothing to reclaim the previous marriage. The reappearing spouse cannot contract a subsequent marriage because of a valid and subsisting marriage with the present spouse. But can the former maintain a (sexual) relationship with the latter without being penalized under the law? Technically, yes. Is there no cause of action for the subsequent spouse to sue the present spouse?
*Art.36. A marriage contracted by any party who, at the time of celebration, was psychologically incapacitated to comply with the essential marital obligation of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.
When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property...
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