Dear Atty. Duran-Schulze,
My sister married in 1996 and was separated from her husband after one year, then she got married again to a different man in 2017. Is the second marriage legal?
Legal Separation is a judicial process wherein the spouses are to live separately from each other and the obligation of mutual support between the spouses ceases, but the marriage bond is not severed. Legally separated couples are not permitted to remarry, since their marriage is still considered valid and subsisting.
Even if your sister is legally separated from her husband, the second marriage is still considered invalid and void. In your sister’s case, it was not even stated if the separation was a mere separation in fact or a legal separation that was filed and approved in court.
The second marriage is invalid for being bigamous. According to Article 35 (4) of the Family Code of the Philippines, bigamous or polygamous marriages not falling under Article 41 of the same code shall be void from the beginning.
Bigamy is defined in Article 349 of the Revised Penal Code stating that “it is imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved”.
Further, before a person can contract another marriage, he/she must first obtain a judicial declaration of nullity of a previous marriage annulling or voiding the marriage. Under Article 40 of the Family Code of the Philippines, 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. Hence, without the court’s declaration of nullity of such marriage, the marriage between the first parties subsists, rendering the second marriage invalid and void.
Unless there is a judicial declaration of nullity of previous marriage, then that is the only time her marriage to another man will be valid, since her first marriage is declared annulled by court. Note that judicial declaration of nullity of previous marriage must first happen before any succeeding marriage can be considered valid.