I have been separated from my husband for six years now. Last year, I met someone whom now I really consider very special to me. We are not living together but we hope that one day we can have a family of our own. My husband and I do not have a child of our own, so I am also looking forward to having a child with my special someone at present. Actually, he already proposed to me just last month. So now, I am contemplating if I should take the plunge.
Is it possible to just have my husband be declared dead? Anyway, I have not heard from him since the time he left me. Whenever I see his relatives and friends, they do not provide me with any information about him. Assuming that my special someone and I get married, what will happen if my husband suddenly shows up? Please advise.
A petition for declaration of presumptive death of a spouse is a remedy that may be availed of by a spouse present in order for him/her to contract a subsequent marriage. Such remedy, however, can only prosper if the spouse present has a well-founded belief that the absent spouse was already dead or there is danger of death on the part of the absent spouse. As provided for under Article 41 of the Family Code of the Philippines:
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.
Applying the foregoing, we believe that you should only file the petition if you truly have a well-founded belief that your husband has already passed away. The fact that you inquired from his relatives and friends and they fail or refuse to provide information about him, we believe, will not suffice to be considered as a “well-founded belief.” You must be able to establish that you really endeavored to determine his whereabouts, his possible circumstances and the probability of his demise. In the alternative, you must be able to prove that there is danger of death under any of the circumstances mentioned under Article 391 of the Civil Code, to wit: “x x x (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 four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.”
Assuming that your petition is granted by the court and you contracted your subsequent marriage but then your first husband reappears, the judicial declaration of your husband’s presumptive death is rendered ineffective or functus officio. It will then result in a situation of you having two (2) subsisting valid marriages. Nevertheless, your subsequent marriage will be terminated by the recording of the Affidavit of Reappearance of your absent spouse before the civil registry. This is clearly stated under Article 42, Family Code:
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.
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 email@example.com