Declaring Common-Law Partner Despite Existing Marriage

Below is a comprehensive discussion of the legal considerations, implications, and general understanding in the Philippines regarding “Declaring a Common-Law Partner Despite an Existing Marriage.” This is not legal advice, but rather a consolidation of general information and insights into relevant laws, doctrines, and procedures. For specific concerns, it is best to consult a qualified Philippine attorney.

1. The Legal Concept of Marriage in the Philippines

  1. Indissolubility of Marriage (Generally)

    • Under Philippine law, marriage is considered a permanent union between a man and a woman, subject to very few exceptions or terminations (e.g., annulment, declaration of nullity, or legal recognition of foreign divorce for certain parties).
    • The Family Code of the Philippines (Executive Order No. 209, as amended) is the primary legislation governing marriages. It emphasizes that marriages have legal effects on status, property relations, and succession.

  2. Absence of Divorce for Most Filipinos

    • Unlike many jurisdictions, divorce is not broadly available for Filipino citizens (except for Muslim Filipinos under Presidential Decree No. 1083, the Code of Muslim Personal Laws, or for Filipinos who have obtained valid foreign divorces under certain conditions).
    • Consequently, if a party remains married, they are deemed legally married until and unless they secure a final judgment of annulment, declaration of nullity, or some recognized form of termination of the marriage.

2. Common-Law Relationships: Definition and Status Under Philippine Law

  1. Definition of “Common-Law” Union

    • In some countries, a “common-law marriage” (or “live-in” partnership) can acquire certain legal rights similar to a marriage after cohabitation for a specific period.
    • In the Philippines, cohabitation by itself does not automatically grant marital rights to the parties. Even if the couple is widely considered common-law partners or “live-in partners,” their union has no official status akin to a valid marriage unless the law provides otherwise (e.g., under the Civil Code provisions on property owned in common by unmarried cohabitants, which is a separate concept).

  2. Effects When One Party Is Still Married

    • If one party is still legally married to another person, this existing marriage blocks any legal recognition of a second union.
    • In the Philippines, bigamy occurs when a person contracts a second marriage while still legally married to someone else. Simply cohabiting with a new partner is not the same as contracting a second marriage, but it can carry its own civil and criminal implications (adultery or concubinage), depending on the circumstances.

  3. No “Automatic” Rights for the Common-Law Partner

    • There is no statutory recognition or “upgrade” of cohabiting status to marriage in the Philippines.
    • Hence, there is no direct route for a “common-law partner” to be declared a spouse if the other partner’s existing marriage remains valid.

3. Potential Civil and Criminal Liabilities

  1. Adultery and Concubinage

    • The Revised Penal Code (RPC) characterizes extramarital affairs differently depending on the spouse’s gender.
      • Adultery applies when a married woman has sexual relations with a man who is not her husband. Both the married woman and her partner can be penalized for adultery.
      • Concubinage applies to a married man who cohabits with a woman who is not his wife under scandalous circumstances or maintains a mistress in the conjugal dwelling, among other conditions.
    • If the existing legal spouse files a criminal complaint, the common-law partner could also face charges (as a co-accused in adultery or concubinage), depending on the specifics of the situation.

  2. Bigamy

    • Bigamy (Article 349, Revised Penal Code) is committed when a person contracts a second (or subsequent) marriage without legally terminating or dissolving the first.
    • Cohabiting or merely “declaring” someone as a new partner would not, by itself, constitute bigamy—unless the parties attempt a second formal marriage ceremony or secure a marriage license without properly dissolving the first marriage.

  3. Legal Separation or Annulment

    • If a spouse is cohabiting with someone else while still married, the other spouse could cite this as a ground for legal separation under the Family Code (e.g., sexual infidelity).
    • Note that legal separation does not end the marriage; it only allows separation of bed and board and deals with property arrangement and possible spousal support obligations.

4. Property Relations and Inheritance Implications

  1. Property Relations

    • The lawful (first) marriage is the one recognized for determining the property regime. Unless annulled or declared void, the existing marriage’s property regime (absolute community of property or conjugal partnership, depending on what applies) remains the default.
    • With a common-law partner, any property acquired during the cohabitation that does not fall under the legal spouse’s conjugal regime could be considered separately owned. However, proving separate ownership can become complicated and might require litigation.

  2. Inheritance Rights

    • Under Philippine law on succession, only the legally recognized spouse and legitimate/illegitimate children can inherit as compulsory heirs.
    • A common-law partner is not a compulsory heir. That means they generally have no automatic share in the estate of their partner if their partner remains legally married to someone else, unless certain steps or testamentary dispositions are made (e.g., in a will). Even then, strict rules on legitimes for compulsory heirs limit how much can be given to non-compulsory heirs.

5. Declaring a Common-Law Partner in Government or Legal Documents

  1. Government Benefit Declarations

    • For benefits such as Social Security System (SSS), Government Service Insurance System (GSIS), Philippine Health Insurance Corporation (PhilHealth), etc., the recognized spouse is ordinarily the valid, legally married spouse.
    • A person who is still legally married cannot ordinarily “declare” a new partner as a spouse or dependent for these benefits unless the first marriage has been terminated or voided by a competent court. In many cases, agencies will request a marriage certificate or a judicial decree of nullity/annulment before updating beneficiary records.

  2. Legal Consequences of Misdeclaration

    • Falsely declaring someone as a spouse (e.g., on official documents, birth certificates for children, or insurance forms) may result in criminal, civil, or administrative liabilities for perjury or falsification of documents.
    • The legally married person must be extremely cautious if trying to name a common-law partner as a legal “spouse,” as this can be challenged.

  3. Children with the Common-Law Partner

    • Children born of a union where there is an existing valid marriage to someone else are typically classified as illegitimate children under Philippine law.
    • Illegitimate children have inheritance rights, although smaller in proportion (they are entitled to half of what legitimate children receive under the law). The father’s acknowledgment of the child is relevant for the child’s status (e.g., allowing the child to use the father’s surname, etc.).

6. Social and Practical Considerations

  1. Social Reality vs. Legal Recognition

    • Many Filipinos might informally live with a partner despite a subsisting marriage due to various social, financial, or personal reasons. While socially recognized, these arrangements do not equate to legal recognition akin to a valid marriage.

  2. Potential for Annulment or Declaration of Nullity

    • If the parties truly wish to have a legal union eventually recognized, the only route is to seek a judicial declaration of nullity or an annulment of the existing marriage (if grounds exist under the Family Code) or, if applicable, a legally recognized foreign divorce (for certain situations).
    • Without obtaining a court decree, the law treats the first marriage as valid and bars the party from contracting (or effectively declaring) a second marriage.

  3. Presumption of Cohabitation Under Certain Circumstances

    • Article 34 of the Family Code allows for a marriage without a license for a man and a woman who have lived together as husband and wife for at least five years and are without any legal impediment to marry each other.
    • This clause does not help a party who is already married, because that existing marriage is a “legal impediment” to any new marriage.

7. Remedies and Steps if You Want Legal Recognition of a New Relationship

  1. Seek a Declaration of Nullity or Annulment

    • Identify if there are valid grounds (e.g., psychological incapacity under Article 36 of the Family Code, lack of marriage license, or one of the void/voidable grounds stated by law).
    • Obtain a final court decree. Only then is the previously married individual free to marry someone else lawfully.

  2. Legal Separation as Interim Relief

    • If immediate dissolution is not feasible, the existing spouse can file for legal separation based on grounds such as repeated physical violence, drug addiction, lesbianism or homosexuality, infidelity, and others.
    • Note that legal separation does not restore “single” civil status but can grant some relief on property and possible spousal support.

  3. Protecting Financial and Property Rights

    • For cohabiting couples, the best option to protect each other’s property or rights (while an existing marriage subsists) is through clear documentation: e.g., deeds of sale or donation for property, wills, or trusts for future distribution of assets—while always mindful that forced heirship rules protect the legal spouse and legitimate children.

  4. Children’s Interests

    • Even if parents are not married, the father can acknowledge his children so that they have the appropriate rights and documentation.
    • This acknowledgment typically appears in the birth certificate or through notarized documents in accordance with the rules on recognition of illegitimate children.

8. Conclusion

Declaring a common-law partner despite an existing marriage in the Philippines poses significant legal challenges. Philippine law continues to recognize and protect the first, valid marriage until it is judicially voided or annulled. Consequently:

  • No valid second marriage can be contracted or “declared” as long as the first marriage stands.
  • A common-law partner does not automatically obtain the rights of a legally recognized spouse.
  • Adultery, concubinage, or bigamy charges can arise if the parties violate the boundaries set by family and criminal law.
  • Property and inheritance rights significantly favor the legal (first) spouse and the legitimate children of that marriage.

Ultimately, anyone considering these matters should be aware of potential legal liabilities and the complexities of property, inheritance, and personal status. For those seeking to have a new union legally recognized, the crucial step is to first terminate or nullify the existing marriage by lawful means. Consulting with a qualified attorney is imperative before making any declarations or legal filings involving a new partner while still legally married.

Disclaimer: This information is for general educational purposes and does not replace individualized legal advice. For specific concerns or representation, it is important to consult a licensed Philippine lawyer who can address the details of one’s particular situation.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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