Presumptive Death under Article 41 of Family Code

20OCT
There is a complicated situation under the Family Code where it allows, as an
exception to the general accepted rule, the validity of two marriages involving a
present spouse and a reappearing absent spouse. In Article 41:

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 danger of death under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence for only two years shall be
sufficient.

For the purposes of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided for
in this Code for the declaration of presumptive death of the absentee, without
prejudice to the reappearance of the absent spouse.

First, let us first establish what is meant by “well-founded belief”. Obviously, it is easy
for a present spouse, especially when the said spouse wishes to remarry, to believe
that the other spouse is already dead. In Republic of the Philippines vs. Court of
Appeals (G.R. No. 159614, December 9, 2005), the Supreme Court said that:
Belief is a state of the mind or condition prompting the doing of an overt act. It may
be proved by direct evidence or circumstantial evidence which may tend, even in a
slight degree, to elucidate the inquiry or assist to a determination probably founded in
truth. Any fact or circumstance relating to the character, habits, conditions,
attachments, prosperity and objects of life which usually control the conduct of men,
and are the motives of their actions, was, so far as it tends to explain or characterize
their disappearance or throw light on their intentions, competence evidence on the
ultimate question of his death.

The belief of the present spouse must be the result of proper and honest to goodness
inquiries and efforts to ascertain the whereabouts of the absent spouse and whether
the absent spouse is still alive or is already dead. Whether or not the spouse present
acted on a well-founded belief of death of the absent spouse depends upon the
inquiries to be drawn from a great many circumstances occurring before and after the
disappearance of the absent spouse and the nature and extent of the inquiries made
by present spouse.

If the well-founded belief within the periods stated under Article 41 is acceptable to
the court, a summary proceeding is to be instituted. Full blown trial is no longer
necessary. Once the Declaration of Presumptive Death is issued by the competent
court, it will be immediately be final and executory. This is not subject to ordinary
appeal. In Republic of the Philippines vs. Tango (G.R. No. 161062, July 31,
2001), the Supreme Court settled the rule regarding appeal judgments rendered in
such proceeding under the Family Code:
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.
Once a decision becomes final and executory, it cannot be directly or collaterally
attacked again by way of appeal other than that resulting from excess or lack of
jurisdiction. In the recent ruling of Chan-Tan vs. Tan (G.R. No. 167139, February
25, 2010):
Nothing is more settled in law than that when a judgment becomes final and
executory, it becomes immutable and unalterable. The same may no longer be
modified in any respect, even if the modification is meant to correct what is perceived
to be an erroneous conclusion of fact or law. The reason is grounded on the
fundamental considerations of public policy and sound practice that, at the risk of
occasional error, the judgments or orders of courts must be final at some definite date
fixed by law. Once a judgment has become final and executory, the issues there
should be laid to rest.

Now suppose the present spouse validly remarry another person after the summary
proceeding. Then after a few years, the absent spouse of the previous marriage
suddenly reappeared. This will now be a case where a present spouse is “validly”
married to two persons. Remember that the marriage with reappearing spouse was
never severed. The subsequent marriage cannot be bigamous either. However, the
conflict may be resolved by the filing of the reappearing spouse of an Affidavit of
Reappearance in accordance with Article 42 of the Family Code. In such case, the
subsequent marriage will automatically be terminated upon the recording of the
Affidavit of Reappearance, except when the previous marriage is declared void ab
initio.
But what will happen if the reappearing spouse, or any interested person, did not
institute any action? Take the case of Social Security System vs. Teresita Jarque
Vda. De Bailon (G.R. No. 165545, March 24, 2006):
If the absentee reappears, but no step is taken to terminate the subsequent marriage,
either by affidavit or by court action, such absentee’s 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 spouse’s
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.
By this ruling of the Supreme Court, the appearance of the absentee spouse, per
se, does not ipso jure terminate the subsequent marriage. This may cause some
complications later. There will be no further issue if the reappearing spouse will
assert locus standi on their marriage. The subsequent marriage will be void after
some administrative procedures. This is without prejudice to the outcome of any
judicial proceeding questioning the reappearance.
An argumentative situation now comes if the reappearing spouse chooses to do
nothing to reclaim the previous marriage. The reappearing spouse cannot contract a
subsequent marriage because of a valid and subsisting marriage with the present
spouse. But can the former maintain a (sexual) relationship with the latter without
being penalized under the law? Technically, yes. Is there no cause of action for the
subsequent spouse to sue the present spouse? The possibility of suing with bigamy
was explained in the case of Manuel vs. People of the Philippines (G.R. No.
165842, November 29, 2005):
Such judgment is proof of the good faith of the present spouse who contracted a
subsequent marriage; thus, even if the present spouse is later charged with bigamy if
the absentee spouse reappears, he cannot be convicted of the crime. As explained
by former Justice Alicia Sempio-Diy:

[S]uch rulings, however, conflict with Art. 349 of the Revised Penal Code providing
that the present spouse must first ask for a declaration of presumptive death of the
absent spouse in order not to be guilty of bigamy in case he or she marries again.
The above Article of the Family Code now clearly provides that for the purpose of the
present spouse contracting a second marriage, he or she must file a summary
proceeding as provided in the Code for the declaration of the presumptive death of
the absentee, without prejudice to the latter’s reappearance. This provision is
intended to protect the present spouse from a criminal prosecution for bigamy under
Art. 349 of the Revised Penal Code because with the judicial declaration that the
missing spouses presumptively dead, the good faith of the present spouse in
contracting a second marriage is already established. (Underscoring supplied.)
A lot of legal conflicts and infirmities will rise from the above scenario. It may also
appear that the subsequent spouse has no cause of action against any right deprived
of him. Take for instance the knowledge of the subsequent spouse of the infidelity of
the present spouse. The former’s claim on either criminal case of adultery or infidelity
as a ground for Legal Separation is questionable. This is from the fact that the
reappearing spouse and the present spouse are still considered to be married for any
or all legal purposes.

In conclusion, Article 41 of the Family Code provides a speedy and efficient way of
declaring absentees especially for the purposes of remarriage. It also provides a
reckoning point in the recovery of civil rights that might have been lost from the
absenteeism. However, there are still gray areas that need to be reinforced. There
can be more impaired or prejudiced rights if the situation will involve presence of
children in both marriages. Such unwanted situations may be avoided if there would
be a more straightforward rule like the case where appearance of the absentee per
se, provided that it is authentic, will cause the judicial declaration of presumptive
death immediately rendered functus officio, concurring to the view of Atty. Mel Sta.
Maria in his book “Persons and Family Relations Law”, Fifth Edition (2010),
pages 282-284.