Marriage validity

Dear Atty. Shalie,

I am legally separated from my first husband and that marriage has been annulled 5 years ago. My partner now and I have been living together for more than 8 years, and we have a daughter who is now 7 years old. She keeps asking why she and I have different surnames. My partner and I could not yet get married because he is also married, though separated from his wife for many years. His marriage contract states that he is married to a certain person, but his wife actually carries a name different from that in their contract. He wants to have that marriage annulled but his wife does not want to be part of any of the processes, claiming that she is not married to him, given the name that appears in the marriage contract.

How should my partner go about this? In the event that his marriage is finally annulled, and we get married eventually, would our daughter automatically become a legitimate child?

Pearl

Dear Pearl,

As for your first concern, your partner may file a petition for the annulment of his marriage, on the ground of fraud or false pretenses, that might have vitiated his consent into contracting such marriage, except when after learning of such fraud, he still freely cohabited with his wife. A marriage could be declared invalid, because it was based on a fundamental mistake; one that must be so material and serious, as to undermine the consent of the other party.

As for your daughter, it is not automatic that she would attain legitimate status upon your marriage with your partner, in case he is able to remarry. Your daughter will have to be adopted to be able to acquire the rights pertaining to a legitimate child. Legitimation of a child is a remedy where those in fact were not born in wedlock and should, therefore, be considered legitimate, it being supposed that they were born when the parents were already married, without any legal impediment. Thus the subsequent marriage of the parents and the child’s birth occurred when the parents were not disqualified from marrying each other. In your case, your child was born when your partner is still married with another woman, as a consequence of which, your daughter who was born out of wedlock, would not qualify for legitimation of their status. Atty. Shalimar P. Lazatin-Obinque