Effect of mere reappearance of the absent spouse on the subsequent marriage

Bigamous Subsequent Marriage

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Our laws allow a married individual to marry again legally if the following essential requisites are present:

(1) The prior spouse has been absent for four consecutive years (or two consecutive years if it falls within any of the instances when the four-year period may be reduced to two years);

(2) The spouse present has a well-founded belief that the absent spouse is already dead;

(3) There must be a summary proceeding for the declaration of presumptive death of the absent spouse; and,

(4) There is a court declaration of presumptive death of the absent spouse.

Known as “Bigamous Subsequent Marriage,” such marriage, though bigamous in nature, as its name suggests, is valid.

And the spouse present may not be held criminally liable for bigamy.

Effect of mere reappearance on the subsequent marriage

But what happens to the subsequent marriage if the absent spouse later reappears?

Will the mere reappearance terminate such marriage?

The answer is NO.

Mere reappearance of the absent spouse will not terminate the subsequent marriage.

And this holds true even if the spouses in such marriage are already aware of it.

Termination of the subsequent marriage by reappearance subject to conditions

Why? Because by law the termination of the subsequent marriage by reappearance is subject to the following conditions:

(1) The non-existence of a judgment annulling the previous marriage or declaring it void;

(2) Recording in the civil registry of the residence of the parties to the subsequent marriage of the sworn statement of the fact and circumstances of reappearance (affidavit of reappearance);

(3) Due notice to the spouses in the subsequent marriage of the fact of reappearance; and,

(4) The fact of reappearance must either be undisputed or judicially determined.

This means the reappearance of the absent spouse will terminate the subsequent marriage only when all these conditions are present.

Instances when the subsequent marriage will still exist even with reappearance

It follows then that the subsequent marriage will still exist even with the reappearance of the absent spouse if:

(1) The previous marriage has already been annulled or declared void;

(2) The sworn statement of the fact and circumstances of reappearance (affidavit of reappearance) is not recorded in the civil registry of the residence of the parties to the subsequent marriage;

(3) There is no notice to the spouses in the subsequent marriage of the fact of reappearance; or,

(4) The fact of reappearance is disputed in the proper courts of law and no judgment is rendered yet confirming it.

Court action not precluded

Reappearance coupled with the recording of an affidavit of reappearance with due notice as a remedy to terminate the subsequent marriage does not preclude the use of other legal remedies.

For instance, an action may also be filed in court to prove the reappearance of the absent spouse and obtain a declaration of dissolution or termination of the subsequent marriage.

Proper remedy when the person declared presumptively dead has never been absent 

But what is the proper remedy when the person declared presumptively dead has never been absent?

The proper remedy for a judicial declaration of presumptive death obtained by extrinsic fraud is annulment of judgment.

Reappearance coupled with the recording of an affidavit of reappearance with due notice is not the proper remedy when the person declared presumptively dead has never been absent.

Annulment of judgment

What then is annulment of judgment?

Annulment of judgment is the remedy when the judgment, order, or resolution of the Regional Trial Court has become final and the remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner.

Grounds for annulment of judgment

There are two grounds for annulment of judgment. These are extrinsic fraud and lack of jurisdiction.

Extrinsic fraud as a ground for annulment of judgment

Remember that for fraud to be a ground for annulment of judgment, it has to be extrinsic.

Fraud is extrinsic when a litigant commits acts outside of the trial that prevents a party from having a real contest or from presenting all of his case such that there is no fair submission of the controversy.

And it is intrinsic when the fraudulent acts pertain to an issue involved in the original action or where the acts constituting the fraud were or could have been litigated.

When extrinsic fraud not a valid ground for annulment of judgment

But extrinsic fraud will not be a valid ground for annulment of judgment if it was availed or could have been availed of in a motion for new trial or petition for relief.

Period for filing of annulment of judgment

If based on extrinsic fraud, annulment of judgment must be filed within four (4) years from its discovery.

And if based on lack of jurisdiction, it must be filed before it is barred by laches or estoppel.

Why choice of proper remedy important

The choice of the proper remedy is important because remedies carry with them certain admissions, conditions and presumptions.

For instance, the use of the remedy of reappearance coupled with the recording of an affidavit of reappearance with due notice is an admission on the part of the absent spouse that her marriage with the spouse present was terminated when the court declared her presumptively dead.

Bear in mind that when a subsequent marriage is entered into after a judicial declaration of presumptive death, a presumption arises to the effect that the absent spouse is already dead and such marriage is legal.

The choice of the proper remedy is also important to determine the status of the subsequent marriage and the liabilities of the spouse who in bad faith claimed that the other spouse was absent.

Why an insufficient remedy

When the person declared presumptively dead has never been absent, the remedy of reappearance coupled with the recording of an affidavit of reappearance with due notice is insufficient.

The reason being that while it will terminate the subsequent marriage, it will not nullify the effects of such marriage and the declaration of her presumptive death.

Remember that since an undisturbed subsequent marriage is valid until terminated, the children will be considered legitimate and the property relations of the spouses will be the same as in valid marriages.

If it is terminated through the use of this remedy, the children in the subsequent marriage conceived prior to its termination will still be considered legitimate.

And the spouse who in bad faith claimed that the other spouse was absent may evade criminal liability for bigamy by simply raising as a defense the judicial declaration of presumptive death.

[References: Article 41 of the Family Code, Article 391 of the Civil Code, Article 42 of the Family Code, Article 35 (4) of the Family Code, Article 349 of the Revised Penal Code, Rule 47 (Annulment of Judgments or Final Orders and Resolutions) of the Rules of Court, Social Security System vs. Teresita Jarque Vda. De Bailon, G.R. No. 165545, March 24, 2006, and Celerina J. Santos vs. Ricardo T. Santos, G.R. No. 187061, October 8, 2014]

 

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Author: Pinggoy Lopez

Inspiring others is my greatest passion

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