Reappearance of a wife presumed dead

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Persida Acosta

Dear PAO,
I was married to my husband for four years already when I decided to leave him because of our constant domestic dispute. I went to Manila while he remained in the province. We did not have any communication during our time away from each other. It is only after a decade that I went back to the province in the hope of giving our marriage another shot. To my surprise, I discovered that my husband married another woman already. They told me that they presumed I was dead during my absence and even filed a case to support that presumption so that he can marry again. Is my husband’s second marriage while I was away legal? Can I reverse my husband’s new marriage? What should I do to revive my marriage to my husband since he has a new wife now? Please give me an advice.
Dee Dev

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Dear Dee Dev,
Article 41 of the Family Code of the Philippines allows a spouse to contract another marriage after having the absent spouse declared presumptively dead by the Court. Considering this, if your husband instituted the necessary legal action and obtained a court decision that declares you to be presumptively dead during the time that you were absent, then he can legally marry again.

However, the same cited provision also provides that contracting subsequent marriage after a declaration of the presumptive death of the absent spouse is without prejudice to the reappearance of the absent spouse. (Ibid.) From this provision, it is clear that your reappearance can legally affect the present marriage of your husband to another woman.

Because of your reappearance, you can automatically terminate the subsequent marriage of your husband by recording an affidavit of reappearance before the civil registry of the residence of the parties to the subsequent marriage after due notice to the spouses of the subsequent marriage (Article 42, Family Code of the Philippines).

The law requires the said affidavit of reappearance to contain a sworn statement of the fact and circumstances of your reappearance. (Ibid.) After the recording of the said affidavit of reappearance, the subsequent marriage of your husband shall be automatically terminated and you may resume your previous marriage with him.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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