Article 83, Chapter 3 of the civil code of the Philippines

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court

Explanations/ comment:

1. Query:

         H and W were Filipinos validity married in the Philppines. Later H and W went to America, and obtain a divorced considered valid in Reno, The ground being mental cruelty. Subsequently H married S. A Hollywood actress, the marriage being performed in California, where the marriage was considered as valid. Later, H and S came to the Philippines. Is the marriage valid, and Can H be successfully prosecuted in the Philippines for the crime of bigamy?

         Answer: 

                        a. The marriage  is void, being it considered bigamous. The divorce is not recognized in the Philippines.

                        b. But the husband cannot marry be convicted for the crime of bigamy, for the crime, if any was committed, took place outside the territorial  jurisdiction of the Philippines.

In judicial declaration of presumptive death( a) To validly get married for the second time in case the first spouse has been for more than seven years, is a judicial declaration of said presumptive death required?

Answer:

In the cas eof Jones Vs Hortiguela,  that was held that for the purpose of the civil marriage law, it is not necessary for the absent spouse to be declared an absentee, and that the oonly puspose of the declaration of absence is for the proper administration of the estate of the absentee. Hence, in that case, it was held that  for the celebration of a second valid marriage, all that was necessary  was  that the absent spouse has been unheard from for seven consecutive years at the time of the second marriage is valid and lawful.

2. However, it would seem from the wording of the article of th revised Penal code code that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order that the presnt spouse may not be guilty or bigamy.

                 In conclusion it should seem therefore from this last supreme court that if a spouse has been upheard from for more than seven years, the present spouse cannot yet get married. This anomalous legal situation must be clarified by the supreme court.

                In judicial declaration of absence for the purposes of the civil marriage law, it is not even necessary to have the spouse judicially declaration is made, the period of seven years must be be counted, not from the judicial decree, but from the the time the absent person was last heard from.