In 2005, I married Paul, a soldier. In 2006, Paul took a vacation leave from his unit and returned home to me in Aklan. After spending his vacation, he said goodbye to me and left Aklan. I have not received any information about him since. I tried hard to know his whereabouts, calling his co-workers and immediate superiors, but they told me that they were also looking for my husband. They said he was AWOL. I also inquired from his relatives in his hometown, friends and even places he frequently visited to no avail.
I have reported the matter to the police and even made a broadcast message through radio that I am looking for him. At present, I am living with someone. Can I file an annulment of marriage, so that I can marry my partner?
Annulment of marriage or declaration of nullity of marriage is not the proper remedy for you to marry your present partner considering that your situation does not fall under any of the grounds provided in the Family Code of the Philippines for annulment or declaration of nullity of marriage.
It is best for you to declare your husband as presumptively dead so that you can remarry. This is governed by the provision of Article 41 of the law, which states:
A marriage contracted by any person during the 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 had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is a 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 a 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.
In your case, you have to present proofs of well-founded belief that your husband was dead. Here are the requisites for the declaration of presumptive death as enumerated in the case of Republic of the Philippines vs Granada (G. R. No. 187512, June 13, 2012), to wit:
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.
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 firstname.lastname@example.org