Declaration of presumptive death of a spouse for subsequent marriage

The Family Code clearly provides that a court declaration of presumptive death of a spouse is indispensable before the other spouse may marry again. Failure to comply with this requirement results not only in a void second marriage, but also opens the guilty spouse to a criminal charge of bigamy. Article 41 of the Family Code reads:

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)

In other words, an absence of 4 years, it being unknown whether the other spouse is still alive and the present spouse has a well-founded belief that the missing spouse is already dead, is a ground to ask the court for a declaration of presumptive death (this is a summary proceeding, not a special proceeding). The 4-year period, however, is reduced to 2 years in the following circumstances:

1. A person on board a vessel lost duing a sea voyage, or an aeroplane which is missing, who has not been heard of for [two] years since the loss of the vessel or aeroplane.

2. A person in the armed forces who has taken part in a war, and has been missing for [two] years.

3. A person who has been in danger of death under othe circumstances and his existence has not been known for [two] years.

As mentioned above, failure to seek a judicial declaration of presumptive death opens a party who contracts a second marriage to a charge of bigamy. The reason is this –

“In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse after the lapse of the period provided for under the law. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. Indeed, “men readily believe what they wish to be true,” is a maxim of the old jurists. To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals. Only with such proof can marriage be treated as so dissolved as to permit second marriages. Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance, namely, a judgment of the presumptive death of the absent spouse.”

To be sure, this appears to be a relatively easier way of contracting another marriage. The problem, however, is that the second marriage is easily voided by the appearance of the “absentee” spouse (void ab initio or void from the beginning if both parties to the second marriage contracted the marriage in “bad faith”). The Family Code provides:

Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. (n)

So, is a judicial declaration of presumptive death better than seeking an annulment or a declaration of nullity of the second marriage? There are no hard and fast rules. Suffice it to state that “the automatic termination of the second marriage upon the reappearance of the absent or missing spouse is a risk that the paties to said marriage knew they were taking when they entered into such marriage, so that if it does happen, they have no reason to complain” (Justice Alicia Sempio-Diy, Handbook on the Family Code of the Philippines).

12 comments

  1. Hi.

    May I consult something about Bigamy and Presumptive Death. We just found out that my father-in-law just got married for the 2nd time in August 2008. We already got enough evidences, i.e. marriage contract, mariage license, etc of the said marriage. The reason he was allowed by the church to get married is because he came up with a presumptive death for my mother-in-lay court decision from Tarlac. My mother-in-law is very much alive and we only knew of the infidelity sometime April 2008 (and still he pushed thru with the wedding in August). That was the only time my father-in-law left the family abode. We are set to file the bigamy case against him. However, somebody told us that there is still a chance for my father-in-law to be acquitted because he may use the presumptive death decision as his defense. Although it is known that they have falsified it, still the court ruling stays. It is assumed that the decision stands unless we file a petition to overturn the decision. Is this true? Somebody told us (to be sure that we’d win) to file the petition first then file the bigamy. The downside is that the petition would take 1 – 2 years in the Court of Appeals. This is already a long time. Can we be charged with condonation if we file bigamy only after the decision of the petition would come out? Is there a way for us to do it faster? Please advise. Thanks.

    Rex

  2. @Rex

    Your father-in-law is liable for bigamy. Even if he already got a Judicial Declaration of the Presumptive Death of his wife, the law provides that he still liable for the said crime if he acted in bad faith. You said that he knew that your mother-in-law is definitely alive, that means that he “has no well-founded belief that his wife is already dead.” This is a good evidence that he acted in bad faith. In a case, the Supreme Court held that no one can use the court to legally commit a crime.

  3. I got married in Sept 1998 and gave birth to my son in Oct 1998. My ex-husband left us in December 1998 and we never heard from him since then (which is more than 12 years ago). He has been known in dealing drugs and I have a well-founded belief that he has died. I am trying to start a new life now and wishes to re-marry. I am wondering if I can file a petition for presumptive death with the ground of drug dealing. Is this a viable option? If so, how long will it take? Or would I rather file for an annulment? How much time before it gets granted and how much do you think will it cost me? Please help.

  4. i just want to ask something:

    my friend wants to get married0 but his problem, can he file presumptive death to his ex wife who never seen her for more than 5 years already, because after 7 months of getting married the girl went to her province and she didn’t perform her obligation as wife to his husband.and he don’t know all the whereabouts of his ex wife.

  5. Hi sir. Really need.ur help. My sister’s fiancè said that his wife died 6 yrs ago. We’ve just learned this month that he doesnt know where his wife was buried and he hasn’t seen the grave for all those years. He said that he has a death cert given by his mother in law and we’ve asked for the copy since we need it for their wedding prep. All of a sudden, they told us that the death cert that they hold was a fake accdg to las piñas city hall where they reside. Can my sister’s fiance file for presump death based on that?
    Your response will be greatly appreciated. Thanks in advance.

  6. I’d like to inquire legal procedures as to how I can file presumptive death? I got married year 2000 then, I and my ex-husband parted ways since 2003.

    From then on, I haven’t seen nor communicated with him. He’s a Filipino but born in Iran. I am not sure if he went back to Iran to search for his father. When we were still together he mentioned that he wanted to know why his birth certificate was not registered here in the Philippines. He has no documents proving whatsoever that he’s a Filipino citizen.

    For 3 years that we’ve been together we had serious fights about how he treats me, that lead us to part ways. Like I said, after 2003 I don’t know where he is. Year 2004 I heard he went to Dubai and crossed Iran (I’m not sure if that’s possible last 2004).

    When he went to Dubai, we didn’t have communication whatsoever and don’t know his whereabouts. I can’t find his closest relatives now because last time I heard, all of his relatives went to USA and Italy. We never had kids, which makes it even more frustrating on my part because until now I still carry his surname.

    I now have present partner and we now have two children. We’d like to legalize everything for the sake of our children.

    Please someone help me and provide me procedures on how to file it.

    Thank you for this kind of forum.

    God Bless!

  7. 7 yrs. Na kaming live-in, may 2 anak na kami. Ask ko lang po Atty. May pag asa po ba kaming makasal. Kahit wala silang legal papers for annullment? Unang nag hanap ng iba ang asawa nya may anak na rin sila.

  8. hi atty. 7 yrs. Na kaming live-in, may 2 anak na kami. Ask ko lang po Atty. May pag asa po ba kaming makasal. Kahit wala silang legal papers for annulment? may papers sila na nilagdaan sa brgy. Ma-consider legal papers for annulment? Binasa ko kasi may nakaagaw pansin sa akin isa sa kanilang nilagdaan, nakalagay doon,”wag na tayong magpakialaman sa isat isa….”Unang nag hanap ng iba ang asawa nya may anak na rin sila.

  9. I have a friend in the phillipines, she is seperated from her husband she says. If she has been seperated for a long time because her husband Is irresponsible and would not work and support the family, and always came home drunk and verbally abusive. Also she got married to him because of a sexual encounter and so she married him to keep her reputation, can she get a quick annulment because of the situation of a criminal act against her? And what legality does she have to remarry someone in the USA and how much would the cost be? Can she go to the USA and get a divorce there and remarry there? Thank you very much I advance!

  10. hi,kasal po kami ng asawa ko for 2 years.Sa ngaun po hiwalay n kami ng nasa 3 taon sa kadahilanang nambabae at nambubugbog po siya. Bago po kami ikasal, may kailangan pong pirmahan ang magulang sa munisipyo pero hindi po nkarating ang mama ko that time kaya kumuha n lng po ako ng ibang nanay para makapirma. 21 years old po ako nun. pwede po bang gawing grounds for nullity yun?

    Thanks po!

  11. My friend married in France in 2003 and she suddenly pretend she was going to visit her mother in Russia, she nnever came back, to France that he knows of, he was married 1 year and 10 months, can he automatically desolve his marriage? he wants to married again? what does he need to do?

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