Article 40 of the Family Code: Court declaration needed before remarriage
Status: In force
What does Article 40 say?
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.
What does it mean in plain language?
Article 40 says you can rely on the nullity of a previous marriage to marry again only if a court has declared that marriage void in a final judgment. It does not matter that the first marriage was void from the very start. Without the final judgment, you cannot treat yourself as free to marry.
The reason is practical. Whether a marriage is void (for example, for lack of a license or because a party was below 18) is a question of fact and law. Article 40 leaves that decision to a court, not to the spouses. A person who remarries on his or her own belief that the first marriage was void takes a serious risk.
How does it work in real life?
Jun: "my first marriage was void anyway"
Jun married Carla in 2010 without a marriage license. He knows the marriage was void under Article 35(3). In 2025 he wants to marry Liza next month. Article 40 says he must first get a final court judgment declaring the marriage to Carla void, and have it recorded (Article 52). Pulido does not change this. It would only matter if Jun were later charged with bigamy.
Luz: married again before going to court
Luz married Ramon when she was 17. Years later, without going to court, she married Arnel. Ramon's family files a bigamy complaint. Under Pulido, Luz may prove in the criminal case that her marriage to Ramon was void from the start, because she was below 18 (Article 35(1)). Whether she is acquitted depends on the evidence. Her marriage to Arnel is a separate question for a civil court.
Dan: the annulment came too late
Dan's first marriage was voidable because his consent was obtained through fraud. He married again in 2020 and got the annulment of his first marriage only in 2023. Pulido says an annulment decree is not a defense in a bigamy case when the first marriage was only voidable, because that marriage was valid when he married again.
These are made-up examples to show how the rule works. They are not advice for any real case.
What does this mean in practice?
- The court case to declare a marriage void has no deadline (Article 39).
- After the judgment becomes final, the judgment, the partition of property and the delivery of the children's presumptive legitimes must be recorded in the civil registry and registries of property (Article 52). Only then may a former spouse remarry (Article 53).
- A missing spouse is a different case. Article 41 requires a court declaration of presumptive death before remarriage.
- A CENOMAR from the PSA shows the marriages on record under your name.
- For the full list of steps, see can I remarry after an annulment? For criminal liability, see bigamy in the Philippines.
Does Article 40 still apply after Pulido v. People?
Yes, for remarriage. In Pulido v. People (2021), the full Supreme Court (En Banc) changed an older rule on bigamy. Earlier cases, such as Mercado v. Tan (2000), had said a person who remarried without first getting a judicial declaration of nullity was guilty of bigamy. Pulido abandoned that line. Now a person accused of bigamy may prove, in the criminal case itself, that the first or second marriage was void from the beginning, even without an earlier court declaration.
But Pulido did not let anyone skip Article 40 when marrying again. The Court said the requirement of Article 40 "is merely for purposes of remarriage" and does not affect the accused's right to attack a void marriage in a bigamy case. Pulido also set limits on the defense:
- If the first marriage was only voidable, an annulment decree is not a defense, because a voidable marriage is valid until annulled.
- A second marriage that is void only because it is bigamous does not help the accused.
So there are two separate questions. Can you remarry? Only after a final judgment of nullity (Article 40) and recording (Article 52). Can you defend yourself in a bigamy case by proving the first marriage was void? After Pulido, yes. The second rule is about criminal liability. It does not make remarrying without a court judgment safe.
What happens if you remarry without a court judgment?
- The new marriage is open to challenge. Without the final judgment, the first marriage cannot be invoked as void for remarriage, so the new marriage can be attacked as bigamous (Article 35(4)). Even with a judgment, a remarriage before the Article 52 recording is void under Article 53.
- A bigamy complaint is possible. Article 349 of the Revised Penal Code punishes contracting a second marriage before the former marriage has been legally dissolved. Pulido gives the accused a defense if the first marriage was truly void, but the case must still be fought and proven.
- The license itself. Under Article 13 of the Family Code, a previously married applicant must give the registrar the judicial decree of annulment or declaration of nullity of the previous marriage (or the death certificate of a deceased spouse, or the decree of absolute divorce).
Which Supreme Court rulings are relevant?
- Pulido v. People (G.R. No. 220149)Pulido v. People explained: a person charged with bigamy can prove that the first marriage was void even without a prior court declaration of nullity.
- Niñal v. Bayadog (G.R. No. 133778)Niñal v. Bayadog explained: the five years of living together that excuse a couple from a marriage license must be free of any legal impediment.
Frequently asked questions
My first marriage was void anyway. Do I still need a court case to remarry?
Yes. Article 40 says the nullity of a previous marriage may be invoked for remarriage only on the basis of a final judgment declaring it void. Without that judgment, a new marriage risks being void and can lead to a bigamy complaint.
Did Pulido v. People remove the need for a court declaration?
Not for remarriage. In Pulido v. People (2021), the Supreme Court said an accused may prove in a bigamy case that a marriage was void even without an earlier court declaration. But it also said the Article 40 requirement is for purposes of remarriage, and that rule stays.
What documents show the registrar that my first marriage was declared void?
Article 13 says a previously married applicant for a marriage license must give the judicial decree of annulment or declaration of nullity of the previous marriage, instead of a birth or baptismal certificate. The decree must also be recorded under Article 52.
Is a final judgment enough, or is there another step?
There is another step. Under Article 52, the judgment, the property partition and the delivery of the children's presumptive legitimes must be recorded. Article 53 says a former spouse may remarry only after that; otherwise the new marriage is void.
Does Article 40 apply to annulment of a voidable marriage?
Article 40 is about void marriages. A voidable marriage is valid until it is annulled, so a court judgment is needed in any case. In Pulido, the Court said that if the first marriage was merely voidable, an annulment decree cannot be used as a defense in a bigamy case.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
Was this page helpful?