Remarriage after nullity of previous marriage, A40 Family Code
1) Final Judgment
Art. 40. 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. (n)
1) While there is no prescription for the declaration of the nullity of marriage, a contracting party is required to obtain first a final judgment declaring the nullity of the previous marriage before obtaining a subsequent marriage.
2) A judicial declaration of absolute nullity of marriage is now expressly required where the nullity of a previous marriage is invoked for purposes of contracting a second marriage. 38 A second marriage contracted prior to the issuance of this declaration of nullity is thus considered bigamous and void. (Castillo v. Castillo, G.R. No. 189607, 18 April 2016, Per Sereno, C.J.)
a. Policy
1) Marriage, a sacrosanct institution, declared by the Constitution as an “inviolable social institution, is the foundation of the family;” as such, it “shall be protected by the State.” In more explicit terms, the Family Code characterizes it as “a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life.” So crucial are marriage and the family to the stability and peace of the nation that their “nature, consequences, and incidents are governed by law and not subject to stipulation.” As a matter of policy, therefore, the nullification of a marriage for the purpose of contracting another cannot be accomplished merely on the basis of the perception of both parties or of one that their union is so defective with respect to the essential requisites of a contract of marriage as to render it void ipso jure and with no legal effect – and nothing more. Were this so, this inviolable social institution would be reduced to a mockery and would rest on very shaky foundations indeed. And the grounds for nullifying marriage would be as diverse and far-ranging as human ingenuity and fancy could conceive. For such a socially significant institution, an official state pronouncement through the courts, and nothing less, will satisfy the exacting norms of society. Not only would such an open and public declaration by the courts definitively confirm the nullity of the contract of marriage, but the same would be easily verifiable through records accessible to everyone. (Domingo v. Court of Appeals, G.R. No. 189607, 18 April 2016, Per Sereno, C.J.)
