By Atty. Eduardo T. Reyes III
The pain that every marital break-up wreaks on the family is profound. But when the husband/ father contracts a second marriage without settling the property matters of the first, the confusion it creates seemingly becomes unfathomable- personally and legally.
In a society permeated by machismo culture like the Philippines, it is not too much of a taboo for a man to have two or more wives and have as many families. And while Philippine society is tolerant of this, it does not make it right. But the point of concern in this column are the far-reaching legal consequences of such multiple affairs.
Thus, when the husband enters into two marriages, may the wife and/ or the children of the first marriage legally question the validity of the subsequent marriage?
The answer lies in a skein of legal principles that must be unraveled.
1)As to the rights of the wife of the first marriage
First, as to the wife of the first marriage, she has all the right to impugn the legality of the second marriage precisely because her marital, property and inheritance rights will necessarily be affected by the second marriage. However, this presupposes that at the time when the second marriage was entered into, the first marriage was or is still subsisting. It goes without saying therefore that if the first marriage had already been terminated (or loosely called “annulled”) then the first wife has no say anymore on the second marriage.
This is known in law as a “direct attack” on the validity of a marriage.
2) As to the children of the first marriage or even the State
But as to the children of the first marriage (or even the State), they have no legal right to file any petition or case to assail the legal efficacy of the second marriage while the husband/ father is still alive. In other words, the children of the first marriage (or even the State), are not authorized by law and jurisprudence to launch a “direct attack” on the validity of a marriage.
In Fujiki v. Marinay, G.R. No. 196049 June 26, 2013, the Court held that “Only the husband or the wife can file a court case to directly attack the validity of their marriage. (S.C. Resolution A.M. No. 02-11-10-SC). “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.” X x x “Only the parties in a subsisting marriage can file a case for declaration of nullity of a subsequent bigamous marriage. The other “spouse” in a subsequent marriage cannot file the case considering that his or her marriage is void.
And in the recent case of Lucila David and the Heirs of Rene F. Aguas, namely: Princess Luren D. Aguas, et al. v. Cherry S. Calilung (G.R. No. 241036), which came down on January 26, 2021, the father/ husband Rene, after his first marriage was declared null and void, without so much as properly liquidating and partitioning the conjugal assets of the first, already contracted a second marriage, the rights of the wife and children of the first marriage were more extensively discussed, viz:
“In explaining why A.M. No. 02-11-10-SC only allows the spouses to file the petition to the exclusion of compulsory or intestate heirs, the Court held:
The Rationale of the Rules on Annulment of Voidable Marriages and Declaration of Absolute Nullity of Void Marriages, Legal Separation and Provisional Orders explicates on Section 2(a) in the following manner, viz.:
- Only an aggrieved or injured spouse may file petitions for annulment of voidable marriages and declaration of absolute nullity of void marriages. Such petitions cannot be filed by the compulsory or intestate heirs of the spouses or by the State.
- Section 2 paragraph a] Only an aggrieved or injured spouse may file a petition for annulment of voidable marriages or declaration of absolute nullity of void marriages. Such petition cannot be filed by compulsory or intestate heirs of the spouses or by the State. The Committee is of the belief that they do not have a legal right to file the petition. Compulsory or intestate heirs have only inchoate rights prior to the death of their predecessor, and hence can only question the validity of the marriage of the spouses upon the death of a spouse in a proceeding for the settlement of the estate of the deceased spouse filed in the regular courts. On the other hand, the concern of the State is to preserve marriage and not to seek its dissolution.(Emphasis and underscoring in the original.)
Simply stated, in so far as the children of the first marriage are concerned, they cannot
directly attack the validity of the second marriage while their father is still alive. The reason is because their rights over their inheritance during the lifetime of their father, is merely inchoate or a mere expectancy- it is still unsure in other words.
But the children are not totally hopeless.
They can still question the validity of the second marriage in the intestate estate proceedings of their father after his death. This is known as an “indirect attack” on the legal status of a marriage. In this case, the children will now have the legal right to attack the second marriage because their inheritance rights will be impinged upon by its validity or subsistence. Stated differently, if the second marriage is void, then the second wife is not an heir of the husband/ father, and therefore the children of the first marriage will get a bigger slice of the estate.
In the end, whichever way we look at it, Tolstoy must be right when he quipped in Anna Karenina that “Happy families are all alike; every unhappy family is unhappy in its own way”.
(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and an author. His website is etriiilaw.com).
