“Dear IBP,
hi po atty. tanong k po kung pwdi n po bang mag kasal ang isang tao n hiwalay n po sya s dating asawa nya ng 28 years n po slang walang kumunikasyon at may kanya kanyang kinakasama at pareho n po slang may mga anak naway po atty masagot po nyo ang tanong k god bless po sainyo.
The Hopeful Romantic”
Dear Hopeful Romantic,
Although the person has been separated in fact for 28 years and have no communication with his former spouse, it does not necessarily mean that there is an automatic separation under the eyes of the law. A distinction must be made first between annulment of marriage, declaration of nullity of marriage, and legal separation.
In an annulment of marriage, the law considers the marriage valid and existing until it is annulled based on the grounds of Article 45 of the Family Code, while in the nullity of marriage, it declared that a marriage is void from the beginning due to either the lack of essential or formal requisites of marriage (Article 35 of the Family Code), psychological incapacity (Article 36 of the Family Code), incestuous marriages (Article 38 of the Family Code, bigamous marriages (Article 41 of the Family Code), of non-compliance with the requirements under Article 52 and 53 of the Family Code for subsequent marriages.
Applying the foregoing, it must be understood that once a person has been married, such person is still validly married until a Finality of Judgment of has been made over the marriage. Proof of such issuance of the declaration of nullity of the first marriage is when a Family Court has issued a Certificate of Finality saying that the Decision has become Final and Executory. Until then, a person is still deemed to be married and his/her second marriage will be rendered null and void in addition to him/her committing the crime of bigamy. I must emphasize also that even if the first marriage may eventually be judicially declared void, the fact remains that at the time that the second marriage was obtain, the first marriage was still subsisting. (Castillo vs. De Leon Castillo, G.R. No. 189607, April 18, 2016)
Conversely, if the previous spouse and this person has been granted only legal separation, under one of the grounds under Article 55 of the Family Code, that legal is only separation from bed and board but it does not render such married void or annulled. Thus, the person cannot remarry even with a grant of legal separation. And again if you choose to marry this person, your marriage will be considered void and this person will be again liable for the crime of bigamy.
To help guide you, you must first look into the facts and circumstances therefore of the situation of the person. Do a background check and see if the person is only separated in fact or his/her marriage has been judicially declared void or if he is only legally separated. You don’t want to put yourself in a situation where you will later on regret your choice only because you decided to follow your heart instead of your head.
The above legal opinion is based solely on the appreciation of the facts and problem given and stated above. The opinion may vary when other facts, circumstances, and situations are stated. For more information and for further queries, you may contact the Legal Aid Office of the Integrated Bar of the Philippines Davao City Chapter at ezchua@gmail.com.
