Judicial declaration of presumptive death of a spouse for subsequent marriage

Flight MH370 

Image source: america.aljazeera.com

Remember Malaysia Airlines Flight MH370?

This was the flight that mysteriously disappeared back in 2014 while on its way to China.

It was then carrying 227 passengers with different nationalities and 12 members of the crew.

Immediately after it disappeared, officials from Malaysia and some other countries began to search for the missing aircraft.

But every effort exerted to locate it proved futile even with the use of the best science available and cutting edge technology.

While debris believed to be from the aircraft were found, there are still no clear signs that it will be located anytime soon.

Of course, until it is found, we will never know what really happened to the aircraft and the people on board.

And why it disappeared without a trace.

Four consecutive years

But let us say one of the passengers is married to a Filipino, who in turn later met and fell in love with another.

Given the facts in Flight MH370, can the Filipino spouse marry again legally?

The answer is YES.

Our laws allow a married individual to marry again if his spouse has been absent for four consecutive years and he has a well-founded belief that his absent spouse is already dead.

Two consecutive years

But if you will take a second look at the facts in Flight MH370, you will notice that the absent spouse has been missing for only three years.

Does it mean then that the Filipino spouse still has to wait for the fourth year before he can marry again?

The answer is NO.

Why? Because his case falls squarely within one of the instances when the four-year period may be reduced to two years.

And these are as follows:

(1) A person on board a vessel lost during 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; and,

(3) A person who has been in danger of death under other circumstances and his existence has not been known for two years.

Judicial declaration of presumptive death

But remember that before the Filipino spouse can marry again, our laws require him to go to court and ask for the declaration of presumptive death of his absent spouse.

This means he can marry again only after the court declares his absent spouse presumptively dead.

Of course, this is without prejudice to the effect of reappearance of the absent spouse.

If the Filipino spouse fails to do so, his second marriage will be deemed void.

Worse, he and his other spouse may even be held criminally liable for bigamy.

Essential requisites

In summary, the following are the essential requisites in order for the Filipino spouse of one of the passengers in Flight MH370 can marry again legally:

(1) The prior spouse has been absent for four consecutive years (or two consecutive years if it falls within any of the instances when the four-year period may be reduced to two years);

(2) The spouse present has a well-founded belief that the absent spouse is already dead;

(3) There must be a summary proceeding for the declaration of presumptive death of the absent spouse; and,

(4) There is a court declaration of presumptive death of the absent spouse.

[References: Article 41 of the Family Code, Article 391 of the Civil Code, Article 42 of the Family Code, Article 35 (4) of the Family Code, Article 349 of the Revised Penal Code, Social Security System vs. Teresita Jarque Vda. De Bailon, G.R. No. 165545, March 24, 2006, and Celerina J. Santos vs. Ricardo T. Santos, G.R. No. 187061, October 8, 2014]

Advertisements

One thought on “Judicial declaration of presumptive death of a spouse for subsequent marriage

  1. SECOND DIVISION

    G.R. No. 187061, October 08, 2014

    CELERINA J. SANTOS, Petitioner, v. RICARDO T. SANTOS, Respondent.

    D E C I S I O N

    LEONEN, J.:

    xxx xxx xxx

    A subsequent marriage contracted in bad faith, even if it was contracted after a court declaration of presumptive death, lacks the requirement of a well-founded belief that the spouse is already dead. The first marriage will not be considered as validly terminated. Marriages contracted prior to the valid termination of a subsisting marriage are generally considered bigamous and void. Only a subsequent marriage contracted in good faith is protected by law.

    Therefore, the party who contracted the subsequent marriage in bad faith is also not immune from an action to declare his subsequent marriage void for being bigamous. The prohibition against marriage during the subsistence of another marriage still applies.

    If, as Celerina contends, Ricardo was in bad faith when he filed his petition to declare her presumptively dead and when he contracted the subsequent marriage, such marriage would be considered void for being bigamous under Article 35(4) of the Family Code. This is because the circumstances lack the element of “well-founded belief” under Article 41 of the Family Code, which is essential for the exception to the rule against bigamous marriages to apply.

    xxx xxx xxx

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s