Dear Atty. Duran-Schulze,
My stepmother married my father. She had a certificate presuming her ex-husband in the Philippines to be dead. She came to England and married my father. But unbeknown to my father, her dead husband turned up alive and well and was looking after her children. We found out that she knew he was alive but still had a certificate to say he was presumed dead. What should we do? My father already passed away and she inherits almost everything. I need legal advice.
Dear Writer,
Article 41 of the Family Code of the Philippines provides that, if a spouse has been absent for four (4) consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead, he or she can file a summary proceeding to have the absent spouse declared presumptively dead, in order to remarry. The period of four (4) years is shortened to two (2) years if the absent spouse was on board a vessel lost during a sea voyage or an airplane which is missing, or a member of the armed forces taking part in a war or in danger of death under similar circumstances.
Under the above-mentioned Article 41, the living spouse can remarry if the absent spouse has not been heard of for two (2) to four (4) years, provided that an official declaration of the presumed death of the spouse is filed in Court.
Now, what would happen if after the declaration by the court of the presumptive death of the absent spouse and the remarriage of the present spouse, the absent spouse suddenly appears?
Article 42 of the Family Code of the Philippines is instructive as to the effects of reappearance of the absent spouse, and enunciates that the subsequent marriage 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.
In short, the reappearance of the absent spouse does not automatically render the subsequent marriage void. A close reading of the entire Article 42 reveals that the termination of the subsequent marriage by reappearance is subject to several conditions: (1) the non-existence of a judgment annulling the previous marriage or declaring it void ab initio; (2) recording in the civil registry of the residence of the parties to the subsequent marriage of the sworn statement of fact and circumstances of reappearance; (3) due notice to the spouses of the subsequent marriage of the fact of reappearance; and (4) the fact of reappearance must either be undisputed or judicially determined.
Reappearance of the absent or presumptively dead spouse will cause the termination of the subsequent marriage only when all the conditions enumerated in the Family Code are present. Hence, the subsequent marriage may still subsist despite the absent or presumptively dead spouse’s reappearance (1) if the first marriage has already been annulled or has been declared a nullity; (2) if the sworn statement of the reappearance is not recorded in the civil registry of the subsequent spouses’ residence; (3) if there is no notice to the subsequent spouses; or (4) if the fact of reappearance is disputed in the proper courts of law, and no judgment is yet rendered confirming, such fact of reappearance.
As instructed by the Supreme Court in the case of Social Security System v. Vda. de Bailon, 520 Phil. 249 (2006) [Per J. Carpio Morales, Third Division], mere reappearance will not terminate the subsequent marriage even if the parties to the subsequent marriage were notified if there was “no step . . . taken to terminate the subsequent marriage, either by [filing an] affidavit [of reappearance] or by court action[.]”
As further held in the case of Santos v. Santos, G.R. No. 187061, October 08, 2014, the reappearance will only terminate the subsequent marriage but not nullify the effects of the declaration of her presumptive death and the subsequent marriage. In order to nullify the effects of the subsequent marriage (children of such marriage shall be considered legitimate, and the property relations of the spouse[s] in such marriage will be the same as in valid marriages), the presumed dead spouse must also file an action for annulment of judgment due to extrinsic fraud and lack of jurisdiction.
Applying the foregoing in your father’s scenario, the reappearance of the presumptive dead spouse does not automatically render your father’s marriage to the Filipina, if the presumed dead spouse did not take any steps to terminate the subsequent marriage (the Filipina wife’s marriage to your father). Therefore, the judicial decision declaring the presumed dead spouse stand and the marriage between your father and the Filipina wife is recognized as valid.
As an heir of your deceased father, what you can do is file a court action to assail the judicial decision declaring the presumed dead spouse on the ground of extrinsic fraud and lack of jurisdiction.
As to your concern regarding inheritance, the inheritance/succession laws follow the nationality of the deceased, in the case of Philippine laws. Based on the facts that you have provided, we can only assume that your deceased father is of British nationality, his law on inheritance/succession should be looked into.
Do you have any further questions that need to be addressed? Talk to our team at Duran & Duran-Schulze Law to know more. You may reach us at (+632) 8478 5826 or +63 917 194 0482 email info@duranschulze.com for more information.
