If the other spouse has been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead, what must the present spouse do in order to remarry?

 Article 41 of the Family Code expressly provides:
"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."
The law is clear and simple. Even if the spouse present has a well-founded belief that the absent spouse was already dead, a summary proceeding for the declaration of presumptive death is necessary in order to contract a subsequent marriage, a mandatory requirement which has been precisely incorporated into the Family Code to discourage subsequent marriages where it is not proven that the previous marriage has been dissolved or a missing spouse is factually or presumptively dead, in accordance with pertinent provisions of law. (Navarro vs. Judge Domagtoy, A.M. No. MTJ-96-1088. July 19, 1996)


What is the effect of failure of the present spouse to institute summary proceeding for the declaration of presumptive death?

Failure of the present spouse to institute summary proceeding for the declaration of presumptive death shall render the subsequent marriage void. Such neglect or ignorance of law shall result in bigamous, and therefore, void, marriage. (Navarro vs. Judge Domagtoy, A.M. No. MTJ-96-1088. July 19, 1996) It also opens the guilty spouse to a criminal prosecution of bigamy.


What are the essential requisites for the declaration of presumptive death? 

Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior spouse had been absent for four consecutive years and the present spouse had a well-founded belief that the prior spouse was already dead. Under Article 41 of the Family Code of the Philippines, there are four (4) essential requisites for the declaration of presumptive death: 

(1) that the absent spouse has been missing for four ( 4) consecutive years, or two (2) consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391 of the 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. (Republic vs. Tampus, G.R. No. 214243, March 16, 2016)


When is the 4-year period reduced to 2-year period?

It is reduced in the following circumstances:

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.

3. A person who has been in danger of death under other circumstances and his existence has not been known for two years. (Art. 391, Civil Code)


Who has the burden of proof to show that all the foregoing requisites exist?

The burden of proof rests on the present spouse to show that all the foregoing requisites under Article 41 of the Family Code exist. Since it is the present spouse who, for purposes of declaration of presumptive death, substantially asserts the affirmative of the issue, it stands to reason that the burden of proof lies with him/her. He who alleges a fact has the burden of proving it and mere allegation is not evidences. (Republic vs. Tampus, ibid.)


What is meant by "well-founded belief"?

The "well-founded belief" in the absentee's death requires the present spouse to prove that his/her belief was the result of diligent and reasonable efforts to locate the absent spouse and that based on these efforts and inquiries, he/she believes that under the circumstances, the absent spouse is already dead. It necessitates exertion of active effort, not a passive one. As such, the mere absence of the spouse for such periods prescribed under the law, lack of any news that such absentee spouse is still alive, failure to communicate, or general presumption of absence under the Civil Code would not suffice. The premise is that Article 41 of the Family Code places upon the present spouse the burden of complying with the stringent requirement of "well-founded belief' which can only be discharged upon a showing of proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouse's whereabouts, but more importantly, whether the latter is still alive or is already dead (Republic vs. Tampus, ibid.).


Instances where the Court ruled that the present spouse failed to prove that he had a well-founded belief that his absent spouse was already dead before he filed his petition:

1. In Republic vs. CA, the present spouse's efforts to locate his absent wife allegedly consisted of the following:

(1) He went to his in-laws’ house to look for her;
(2) He sought the barangay captain’s aid to locate her;
(3) He went to her friends’ houses to find her and inquired about her whereabouts among his friends;
(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his free time;
(5) He went back to Catbalogan and again looked for her; and
(6) He reported her disappearance to the local police station and to the NBI.

Despite these alleged "earnest efforts," the Court still ruled against the present spouse. The Court found that he failed to present the persons from whom he allegedly made inquiries and only reported his wife’s absence after the OSG filed its notice to dismiss his petition in the RTC.

2. Similarly in Granada, the Court ruled that the absent spouse failed to prove her "well-founded belief" that her absent spouse was already dead prior to her filing of the petition. In this case, the present spouse alleged that her brother had made inquiries from their relatives regarding the absent spouse’s whereabouts. The present spouse did not report to the police nor seek the aid of the mass media.

3. In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who had been missing for more than four years. He testified that his efforts to find her consisted of:

(1) Searching for her whenever his ship docked in England;

(2) Sending her letters which were all returned to him; and

(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless. The Court ruled that the present spouse’s investigations were too sketchy to form a basis that his wife was already dead and ruled that the pieces of evidence only proved that his wife had chosen not to communicate with their common acquaintances, and not that she was dead. (Republic vs. Cantor, G.R. No. 184621, December 10, 2013).


What is the rationale for the strict standard prescribed under Article 41?

1. The Court, fully aware of the possible collusion of spouses in nullifying their marriage, has consistently applied the "strict standard" approach. This is to ensure that a petition for declaration of presumptive death under Article 41 of the Family Code is not used as a tool to conveniently circumvent the laws.

In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration of presumptive death of one’s spouse, the degree of due diligence set by this Honorable Court in the above-mentioned cases in locating the whereabouts of a missing spouse must be strictly complied with. There have been times when Article 41 of the Family Code had been resorted to by parties wishing to remarry knowing fully well that their alleged missing spouses are alive and well. It is even possible that those who cannot have their marriages xxx declared null and void under Article 36 of the Family Code resort to Article 41 of the Family Code for relief because of the xxx summary nature of its proceedings.

The application of this stricter standard becomes even more imperative if we consider the State’s policy to protect and strengthen the institution of marriage.24 Since marriage serves as the family’s foundation and since it is the state’s policy to protect and strengthen the family as a basic social institution, marriage should not be permitted to be dissolved at the whim of the parties.

2. It is intended to protect the present spouse from a criminal prosecution of bigamy under Article 349 of the Revised Penal Code which might come into play if he/she would prematurely remarry sans the court's declaration. Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the present spouse's good faith in contracting a second marriage is effectively established. The decision of the competent court constitutes sufficient proof of his/her good faith and his/her criminal intent in case of remarriage is effectively negated (Republic vs. Cantor, ibid).


Is the judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 appealable?

The Family Code was explicit that the court’s judgment in summary proceedings, such as the declaration of presumptive death of an absent spouse under Article 41 of the Family Code, shall be immediately final and executory.

Article 41, in relation to Article 247, of the Family Code provides:
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.

 Art. 247. The judgment of the court shall be immediately final and executory.
With the judgment being final, it necessarily follows that it is no longer subject to an appeal, the dispositions and conclusions therein having become immutable and unalterable not only as against the parties but even as against the courts.8 Modification of the court’s ruling, no matter how erroneous is no longer permissible. The final and executory nature of this summary proceeding thus prohibits the resort to appeal (Republic vs. Cantor, ibid).


What then is the remedy of the losing party?

• A losing party in this proceeding, however, is not entirely left without a remedy. While jurisprudence tells us that no appeal can be made from the trial court's judgment, an aggrieved party may, nevertheless, file a petition for certiorari under Rule 65 of the Rules of Court to question any abuse of discretion amounting to lack or excess of jurisdiction that transpired (Republic vs. Cantor, ibid).

• By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and executory. As a matter of course, it follows that no appeal can be had of the trial court’s judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction (Republic vs. Tango, G.R. No. 161062, July 31, 2001).


Will the reappearance of the absent spouse ipso jure terminate the subsequent marriage?

The appearance of the absentee spouse, per se, does not ipso jure terminate the subsequent marriage.


How then shall the subsequent marriage be automatically terminated?

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. (Art. 42, Family Code)


Who can file an affidavit of reappearance with the local civil registrar?

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. (Par. 2, Art. 42, Family Code)


What if the reappearing spouse or any interested person did not institute any action?

If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or by court action, such absentees mere reappearance, even if made known to the spouses in the subsequent marriage, will not terminate such marriage. Since the second marriage has been contracted because of a presumption that the former spouse is dead, such presumption continues inspite of the spouses physical reappearance, and by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is terminated as provided by law.
(SSS vs. Vda. De Bailon, G.R. No. 165545, March 24, 2006)


What is the effect of  the termination of the subsequent marriage under Art. 42?

The termination of the subsequent (bigamous) marriage under Article 42 shall produce the following effects:

(1) Children of the subsequent marriage - The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;

(2) Property Regime - The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;

(3) Donations property nuptias - Donations  by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) Insurance benefits - The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

(5) Succession rights - The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (Art. 44, Family Code)

(6) Donations - If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (Art. 45, Family Code)


What is the proper remedy if there was fraud in the filing of a petition for declaration of presumptive death of the other spouse? Is the mere filing of an affidavit of reappearance enough? 

Mere filing of an affidavit of reappearance would not suffice for the purpose of not only terminating the subsequent marriage but also of nullifying its effects and the effects of the declaration of presumptive death. Annulment of judgment on the ground of extrinsic fraud is the proper remedy. There is extrinsic fraud when a litigant commits acts outside of the trial which prevents a party from having a real contest or from presenting all of his or her case, or when there is no fair submission of the controversy.

An affidavit of reappearance is not a sufficient remedy because it will only terminate the subsequent marriage but not nullify the effects of the declaration of her presumptive death and the subsequent marriage. 

Since an undisturbed subsequent marriage under Article 42 of the Family Code is valid until terminated, the "children of such marriage shall be considered legitimate, and the property relations of the spouses in such marriage will be the same as in valid marriages." If it is terminated by mere reappearance, the children of the subsequent marriage conceived before the termination shall still be considered legitimate. Moreover, a judgment declaring presumptive death is a defense against prosecution for bigamy.  (Santo vs. Santos, G.R. 187061, October 8, 2014)