Article 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.
 JUDICIAL DECLARATION OF
NULLITY

It does not follow that if a marriage is void,

the spouses can just remarry. If a marriage
between two contracting parties is void ab
initio, any one of them cannot contract a
subsequent valid marriage without a
previous judicial declaration of nullity of
the previous void marriage.
The Clause “On the Basis Solely of a
Final Judgment Declaring Such
Marriage Void’’

Other instances where a party might well

petition the absolute nullity of a previous
marriage for purposes other than remarriage:
• action for liquidation
• partition
• distribution and separation of property
between the spouses, as well as an action
for the custody and support of their
common children.
People v. Mendoza decided • No need for a judicial
on September 28, 1954 and declaration of nullity
People v. Aragon decided of a void marriage
on February 28, 1957

Gomez v. Lipana decided on

June 30, 1970 and • There was a need for a judicial
Conseguera v. Conseguera declaration of nullity of a void
decided on January 30, 1971 marriage

Odayat v. Amante
decided on June 2, 1977 • No need for a judicial
and in Tolentino v. Paras declaration of nullity
decided on May 30, 1983 of a void marriage

Wiegel v. Sempio Diy • There was a need for a judicial

decided later on August declaration of nullity of a void
19, 1986 marriage

HISTORICAL BACKGROUND Yap v. Court of • No need for a judicial

OF THE NEED FOR A Appeals, decided on declaration of nullity
October 28, 1986 of a void marriage
JUDICIAL DECLARATION OF
NULLITY
August 3,
1988, the
Family Code
took effect
 ARTICLE 40 AND BIGAMY

If the first marriage is void and a party to

that first marriage then remarries without
obtaining a judicial declaration of nullity
of the first marriage, there is no doubt that
the subsequent marriage is also void. It is
void not because it is bigamous but
because it failed to comply with the
requirements under Article 40.

formal requirement namely:

a valid marriage license
 CASE

DOROTHY B. TERRE vs. ATTY. JORDAN TERRE

A.M. No. 2349 July 3, 1992
PER CURIAM, J.:
 FACTS:
Dorothy Terre first met Jordan Terre when they were 4th year
high school classmates in Cadiz City High School. She was then married
to Merlito Bercinilla. Jordan courted her and this continued when they
moved to Manila to pursue their studies. Jordan, a freshman law student,
told Dorothy that her marriage with Bercenilla was void ab initio because
they are first cousins. Believing and with the consent of her mother and
ex-in-laws, she married Jordan on June 14, 1977. Jordan wrote “single”
as Dorothy’s civil status despite the latter’s protests. Jordan said it didn’t
matter because marriage was void. After their marriage, Dorothy
supported Jordan because he was still studying. They had a son, Jason;
however, after she gave birth, Jordan disappeared. She learned that he
married Helina Malicdem.

Dorothy filed charges for abandonment of minor, bigamy and

grossly immoral conduct. Jordan was already member of the Bar.Jordan
claimed that he was unaware of Dorothy’s first marriage and that she
sent her out of the house when he confronted her about it. He contacted
the second marriage, believing that his marriage to Dorothy was void and
ab initio because of her prior subsisting marriage.
 ISSUE:

Whether or not a judicial declaration of

nullity is needed to enter into a
subsequent marriage.
 RULING:

Yes, a judicial declaration of nullity is needed to enter into a

subsequent marriage. The court considered the claim of Jordan
Terre as spurious defense. In the first place, respondent has not
rebutted complainant’s evidence as to the basic fact which
underscores that former was in bad faith. In the second place, the
pretended defense is the same argument by which he inveigled
complainant into believing that the complainant’s prior marriage on
Merlito Bercenilla being incestuous and void ab initio, she was free to
contract a second marriage with the respondent. Applying Article 40
of the Family Code “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” for purpose of
determining whether a person is legally free to contact a second
marriage, a judicial declaration that the first marriage was null and
void ab initio is essential. Since respondent Jordan Terre is a lawyer
he is bound to know about the aforementioned argument ran counter
to the prevailing case law of the Supreme Court.