Kids from marriage on presumed death of first husband legitimate

Dear PAO,
Our parents were married in 1975. Before that marriage, our mother was married to her first husband in 1960 but due to the onslaught of a typhoon in 1963, her first husband went missing. She never heard of him since then and presumed that he was already dead. After 12 years, my mother married our father.  My question is: Are the children of my mother from her second marriage legitimate?
Leona

Dear Leona,
The answer to your question hinges on the validity of the marriage of your mother to her second husband, as under the law, children conceived or born during the marriage of their parents are legitimate (Article 164, Family Code of the Philippines).

According to you, your mother was married twice, first in 1965 and second in 1975. The law that was in effect during those times was the New Civil Code of the Philippines. It is clear from the letter of this law that a bigamous marriage is null and void. By plainly looking at the second marriage of your mother, it appears that it is null and void considering that she was still married to her first husband when she contracted a subsequent marriage.

But since her first husband had been missing for a total of thirteen (13) years before she married again and, according to your letter, she had no inkling whether her first husband was still alive as he was a victim of a typhoon before he went missing and your mother even presumed that her first husband was already dead, then her second marriage is valid. This is according to Article 83 of the New Civil Code of the Philippines, which provides:

“Article 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.”

It is worthy to mention that under Article 390 of the New Civil Code of the Philippines, it is provided that if a person has been missing for seven (7) years and there is no information whether  the person is still alive, the latter is presumed dead for all purposes except for those which have something to do with succession.

Also, Article 391 of the same law provides for the instances when a person is presumed dead for all purposes, to wit:

“Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

(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 four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.”

In addition, there is no need for the interested parties to file a petition in court for the declaration of the presumption of death of the person under the instances mentioned in the above provisions of law, the same presumption having arisen by operation of law. In the case of Angelita Valdez vs. Republic of the Philippines (G.R. No. 180863, September 8, 2009), the Supreme Court enunciated the following:

“For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made in accordance with the provisions of the Civil Code has for its sole purpose to enable the taking of the necessary precautions for the administration of the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her former spouse to be living, that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.”

As can be gleaned from the foregoing, your mother’s marriage to her second husband is valid. Therefore her children from her second marriage are legitimate.

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 guide you with our opinion 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 dearpao@manilatimes.net