I endured my husband’s philandering activities for almost five years until I left him in 2003. I discovered in 2013 that my husband contracted a second marriage in 2008, after he declared me as presumptively dead in the same year, so that he could contract the second marriage with his mistress, who was also his secretary. How could this happen when I am very much alive, and I did not receive any notice from the court that there was such a proceeding? My husband is a public officer who will soon retire from government service. I fear that his retirement benefits will all redound to his second wife. What shall I do?
Chief Justice Maria Lourdes Sereno said in Republic of the Philippines vs. Granada (G. R. No. 187512, June 13, 2012) that there are four requisites for the declaration of presumptive death under the Family Code, which are as follows:
1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.
In your case, the proceeding for the declaration of presumptive death that was initiated by your husband and granted by the court is void. Your husband acted in bad faith by making it appear that you have been missing and presumed dead when in fact you are alive. The requisites provided in the first and third enumerations mentioned above were not clearly met.
Your remedy now is to file an action in court to prove reappearance and obtain a declaration of dissolution or termination of the subsequent marriage. In the case of Santos vs. Santos (G.R. No. 187061, October 08, 2014), Supreme Court Associate Justice Marvic Mario Victor Leonen said:
“The provision on reappearance in the Family Code as a remedy to effect the termination of the subsequent marriage does not preclude the spouse who was declared presumptively dead from availing of other remedies existing in law. This court had, in fact, recognized that a subsequent marriage may also be terminated by filing ‘an action in court to prove the reappearance of the absentee and obtain a declaration of dissolution or termination of the subsequent marriage.’ ”
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org.