3 August 2014

Mr. Dan Mulligan

221B Baker Street
Rockwell Center, Makati

Dear Mr. Mulligan:

This legal opinion seeks to answer your question as to whether or not

Dave and Gretta’s alleged marriage constituted by the documents recorded in
the Civil Registry and the National Statistics Office should be annulled to be
able to conduct your marriage without legal impediments.

The Facts

Per our discussion last Wednesday, July 30, the following are the
pertinent facts:

On January last year, or 18 months ago, you met Gretta Green and
proposed and became engaged to her in January this year, or six months
ago. On the same night of your engagement, she disclosed to you that she
had a previous relationship with a certain Dave Kohl whom she had a
daughter named Violet with and that their relationship lasted until 2012.

You and Gretta started planning for your wedding and were required to
secure some documents, including a certificate of no marriage and a marriage
license. However, Greta received by mail copies of a marriage license dated
July 14, 2010 issued by the Civil Registrar’s Office of Laguna in favor of her
and Dave, and a certificate of marriage showing that they were married, with
the mayor of Pagsanjan as solemnizing officer, on August 14, 2010 in the
latter’s home. Gretta claims that she never married Dave and she has never
been to Pagsanjan, Laguna.

The Applicable Laws

There are two applicable laws in this case. The first law pertinent to the
case is Article 4 of the Family Code, which provides that:

“The absence of any of the essential or formal

requisites shall render the marriage void ab initio,
except as stated in Article 35(2).” 1

Upon receipt of the copies of the marriage license and marriage

contract from the local civil registrar, your fiancée, Gretta Green, claims that
she did not get married to Dave Kohl. Although the documents that may count

1
The Family Code of the Philippines [FAMILY CODE], Executive Order No. 209, art. 4 (1988)
proof of marriage were recorded in the appropriate registry, the validity of the
marriage must be examined by looking at the requisites of the latter.

The second law that applies to the case is Article 40 of the Family
Code. It provides that:

“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.”2

Your case involves an alleged first marriage by your fiancée, and she
desires to enter into a marital union with you.

The Legislative Intent Behind Article 40 of the Family Code

In the 152nd Joint Meeting of the Civil Code and the Family Code
Committees 3 where Art. 40 was discussed, marriage is said to be a
“’sacrosanct institution, is the foundation of the family;’ as such, ‘it shall be
protected by the State.’”4 If the nullification of marriage is upon the judgment
of the spouses, then the “inviolable social institution would be reduced to a
mockery and would rest on very shaky foundations indeed.”5 As the State is
one of the parties in a marriage contract, it has the power to regulate the
institution.

The Applicable Jurisprudence

In the absolute nullity of a previous marriage, recent decisions of the

Supreme Court are applied in cases of marriages void ab initio.6 One case is
Wiegel v. Sempio-Diy decided in 1986. It involves a husband who filed for a
declaration of nullity of his marriage to his wife, on the ground of the latter’s
former marriage. The wife claims that her prior marriage was null and void
because she was forced into it and that her first husband was married to
someone else. The court ruled that the wife’s claim that she was forced to
consent to the marriage only makes it voidable and not void, which means
that it is valid until annulled. Therefore, since there was no annulment, she is
still married to her first husband because no annulment has been made and
her marriage to her second husband is void. In this case, the court held that:

“a marriage though void still needs according to

this Court a judicial declaration.”7

2 FAMILY CODE, art. 40.

3 th
MELENCIO S. STA. MARIA, JR., PERSONS AND FAMILY RELATIONS LAW (5 ed. 2010).
4 152nd Joint Meeting of the Civil Code and the Family Code Committees.
5 Id.
6
ALICIA V. SEMPIO-DIY, HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES (1995).
7
Wiegel v. Sempio-Diy, 143 SCRA 499, 500 (1986).
 Another case relevant to your concern is Bobis v. Bobis decided in
2000. In this case, the husband contracted a first marriage and contracted
another without the prior marriage being annulled. After which, he allegedly
contracted a third marriage. A bigamy case was filed against him and
consequently, he filed for a civil action to obtain a judicial declaration of the
nullity of his first marriage. He then filed a motion to suspend the proceedings
of the bigamy case claiming that there is a pending case regarding the nullity
of his first marriage and claimed that a decision on the latter must first be
made in order for the bigamy case to be resolved. The Supreme Court held
that he should have obtained the judicial declaration of nullity of marriage prior
to contracting his subsequent marriages. The court further claims that:

“Hence, parties should not be permitted to judge

for themselves the nullity of their marriage, for the
same must be submitted to the determination of
competent courts. Only when the nullity of the
marriage is so declared can it be held as void, and
so long as there is no such declaration the
presumption is that the marriage exists.”8

This is applicable in your case such that under Philippine Law, your
fiancée is presumed to be married. The answer to whether o not an
annulment of her former marriage is required for her to join you in marital
union lies in the doctrines of these two cases, where a judicial declaration of
nullity of the previous marriage is required for a person to enter into another.

Analysis and Conclusion

The alleged marriage of your fiancée Gretta Green and Dave Kohl as
constituted by the marriage license and marriage contract from the Civil
Registrar’s Office of Laguna is presumed valid under Philippine Law.

In the case of Gretta claiming that she was never married to Dave, it is
clearly shown that she has no consent. Consent freely given is of the
essential requisites of marriage as provided in Paragraph 2 of Article 2 of the
Family Code. Then, as Paragraph 1 of Article 4 states, absence of any
essential or formal requisites shall render the marriage void ab initio. Hence,
the marriage of Gretta and Dave is void ab initio because of the lack of
consent freely given by Gretta. However, applying Article 40 of the Family
Code and following the rulings in the relevant cases, a judicial separation of
nullity of marriage or annulment is necessary for her to be in the capacity to
be in a marital union with you.

Once the court, in considering Gretta and Dave’s void marriage, issues
a judicial declaration of nullity of marriage, then Gretta is now in the capacity
to remarry. She cannot be charged for bigamy once she enters into a
marriage with you.

8
Bobis v. Bobis, 138509 (2000).
Recommendation

As your fiancée claims that she has no knowledge of the marriage

therefore implying that there is an absence of consent which renders the
marriage void ab initio, the proper recourse as plainly stated in the law is for
Gretta to obtain a judicial declaration of the nullity of her marriage to Dave so
that she may enter into a marital union with you.

To invoke Article 40 of the Family Code and obtain said judicial

declaration, Gretta Green must file a petition for declaration of absolute nullity
of void marriages, based on the Supreme Court En Banc Resolution A.M. 02-
11-10-SC which is the Rule on Declaration of Absolute Nullity of Void
Marriages and Annulment of Voidable Marriages. The provision states that:

“Sec. 2. Petition for declaration of absolute nullity of

void marriages. –

(a) Who may file. – A petition for declaration of

absolute nullity of void marriage may be filed
solely by the husband or the wife. (n)

(b) Where to file. – The petition shall be filed in the

Family Court.”9

Moreover, the petition must be filed in the proper venue as provided by

Section 4, which states that:

“Sec. 4. Venue. – The petition shall be filed in the Family

Court of the province or city where the petitioner or the
respondent has been residing for at least six months prior
to the date of filing, or in the case of a non-resident
respondent, where he may be found in the Philippines, at
the election of the petitioner.”10

The petition must make the characteristics of Gretta Green

and Dave Kohl’s alleged marriage clear by following Section 5,
which states:

“Sec. 5. Contents and form of petition. – (1) The

petition shall allege the complete facts constituting the
cause of action.

(2) It shall state the names and ages of the common

children of the parties and specify the regime
governing their property relations, as well as the
properties involved.

9
RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE
MARRIAGES, A.M. No. 02-11-10-SC, Mar. 4, 2003, § 2.
10
Id. § 4.
 xxx

(3) It must be verified and accompanied by a

certification against forum shopping. The verification
and certification must be signed personally by the
petitioner. No petition may be filed solely by counsel
or through an attorney-in-fact.

xxx

(4) It shall be filed in six copies. The petitioner shall

serve a copy of the petition on the Office of the
Solicitor General and the Office of the City or
Provincial Prosecutor, within five days from the date
of its filing and submit to the court proof of such
service within the same period.

Failure to comply with any of the preceding

requirements may be a ground for immediate
dismissal of the petition.”11

Therefore, applying the rule on obtaining a judicial declaration of nullity

of marriage, Gretta Green must file the petition in the Family Court of the
province where she has been residing for six months prior to the date she
would file such petition. She must allege the complete facts that constitute her
petition. She must inform the court of the lack of consent in her marriage to
David Kohl and that she would like to have it annulled to be in capacity to
conduct another marriage without legal impediments that may be entailed by
the prior marriage. She must also state that she has a daughter with her
alleged husband and specify the governing property relations accordingly.

Consequently, the petition must be accompanied by a certification

against forum shopping, which she must personally sign. Lastly, she must file
the petition in six copies where one shall be served to the Office of the
Solicitor General and another to the Office of the City or Provincial Prosecutor
within five (5) days from filing. Within the same period, she must also submit
to the court proof of her service of the petition to the offices mentioned.

I appreciate the opportunity to be of legal assistance to you on this

issue. Please do not hesitate to contact me if you have any other inquiries.
Thank you.

Sincerely yours,

Rea Shanine C. Hermogenes

LEGAL COUNSEL

11
Id. § 5.