By Atty. Eduardo T. Reyes III
To “render mutual help and support” and “to provide support to the family” are the primordial duties of husband and wife under the law. Resultantly, “As these obligations are enforceable, they concomitantly grant either spouse relief when the other spouse reneges on his or her duty or commits acts that “tend to bring danger, dishonor or injury to the other or to the family”. (Falcis v. Civil Registrar General, G.R. No. 217910. September 3, 2019).
The other day, while helping prepare the Bar reviewees who, in a fortnight, will be taking on one of the toughest examinations there is, the discussion touched upon a marriage where one spouse had disappeared without a trace and is presumed dead. Too, one noted reader of this column sent Legal Harbinger a message requesting for an article on presumptive death.
Thus, this piece.
Owing to the entitlement of the present spouse to be accorded the love, respect, help and support that the other is obliged to render- but could not because of his/ her absence-, can the present spouse seek judicial relief?
The answer is YES.
Article 41 of the Family Code envisages a scenario where one spouse had been absent for a certain period and the present spouse, premised on a “well-founded belief” that the missing spouse is dead, seeks a judicial declaration of presumptive death. Once granted the present spouse will be allowed to remarry without incurring the peril of committing bigamy.
Yet because the death of the missing spouse- albeit judicially declared- is but a mere “presumption”, Articles 42 and 43 of the Family Code welcome the possibility that he/ she may still be alive. Once this happens and the missing spouse executes an Affidavit of Reappearance which is registered with the local civil registry, the subsequent marriage will be automatically terminated.
But before we deal with the status of the first marriage prior to the reappearance of the missing spouse and during the period of absence, let us first tackle the different timeframes that the law had fixed for a missing person to be presumed dead.
Presumption of Death NOT for Purposes of Remarriage
If the purpose of the present spouse or any interested person for that matter, is any other purpose apart from contracting a subsequent marriage (such as, but not limited to, claiming pension or retirement benefits), there is no need for any court order or declaration. The presumption of death that the law mounts suffice. The timelines under this rubric are as follows:
Articles 390 and 391 of the New Civil Code
No need of judicial declaration. Lapse of required period –
7 years under normal circumstances.
10 years- for purposes of opening his succession
5 years- if he disappeared after the age of 75 for purposes of opening his succession
4 years- in respect to a person on board a vessel lost during a sea voyage or a missing airplane; person in armed forces who took part in a war; a person who was in danger of death.
In Estrellita Tadeo-Matias v. Republic (G.R. No. 230751, April 25, 2018) it was held that “Since the petition filed by the petitioner merely seeks the declaration of presumptive death of Wilfredo under the Civil Code, the RTC should have dismissed such petition outright. This is because, in our jurisdiction, a petition whose sole objective is to have a person declared presumptively dead under the Civil Code is not regarded as a valid suit and no court has any authority to take cognizance of the same. X x x Moreover, a court action to declare a person presumptively dead under Articles 390 and 391 of the Civil Code would be unnecessary. The presumption in the said articles is already established by law. The PVAO and AFP can decide claims of death benefits of a missing soldier without requiring the claimant to first produce a court declaration of the presumptive death of such soldier”.
Presumption of Death if the Purpose is for Remarriage
By stark contrast, if the objective of the present spouse is for remarriage, a judicial declaration of presumptive death is necessary pursuant to Article 41 of the Family Code which can be filed after a period of four (4) years of continued absence and hastened to only two (2) years if the disappearance is occasioned by some “danger of death”, like a war, a shipwreck, or an airplane which crashed. Once the Family Court grants the petition, the second marriage will be accorded all the entitlements of a valid marriage. “Since an undisturbed subsequent marriage under Article 42 of the Family Code is valid until terminated, the “children of such marriage shall be considered legitimate, and the property relations of the spouse[s] in such marriage will be the same as in valid marriages”. If it is terminated by mere reappearance, the children of the subsequent marriage conceived before the termination shall still be considered legitimate. Moreover, a judgment declaring presumptive death is a defense against prosecution for bigamy”. (CELERINA J. SANTOS v. RICARDO T. SANTOS, G.R. No. 187061, October 08, 2014).
Then again, it must be stressed that even if the present spouse had already embarked on a second marriage, the incidents relating to the first marriage with the absent spouse still remain in limbo. Normally, when a marriage is annulled or declared void, the liquidation and partition of the common properties of the spouses as well as the delivery of the common children’s presumptive legitimes must be complied and the same must be recorded in the local civil registry and property registry pursuant to Article 52 of the Family Code; otherwise, the subsequent marriage will be void.
But these are not required under Article 41.
Indeed, the scenario envisaged under Article 41 of the Family Code deals with the bizarre: a twilight zone of sorts. While the present spouse had already moved on to a second marriage, there is really no closure in regard to the first.
The first marriage is only in suspended animation, after all.
(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 a book author. His website is etriiilaw.com).
