Court declaration needed to establish death of ‘absentee’ wife

Dear PAO,
After years of hesitation, I finally found the strength to seek for a CENOMAR from the NSO for my husband. To my dismay, I found out that my husband had been married in 1993. We were married in 2005. When I confronted him about this, he said that he was only with his wife for a week when she left for the province. He said his wife never returned. Since he did not know her relatives, he really had no one to ask of her whereabouts. Is our marriage valid? Please enlighten me on the matter. Thank you.
Katrina

Dear Katrina,
Our laws provide that a marriage which has been contracted during the subsistence of a previous marriage is considered null and void, unless the prior spouse has been declared as presumed dead by the court. Article 41 of the Family Code states:

“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 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 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 effect of reappearance of the absent spouse.”

Therefore, in order for your husband’s first wife to be validly presumed dead and for your marriage to be considered as a valid subsequent marriage, the following must be present: (1) The absent spouse has been missing for four consecutive years or two 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) The present spouse wishes to remarry; (3) The present spouse has a well-founded belief that the absentee is dead; and (4) The present spouse files a summary proceeding for the declaration of presumptive death of the absentee (Republic vs. Nolasco, G.R. No. 94053, 17 March 1993, 220 SCRA 20). The belief that the absent spouse is dead must also be “the result of proper and honest to goodness inquiries and efforts to ascertain the whereabouts of the present spouse and whether the absent spouse is still alive or is already dead” (Republic vs. Court of Appeals and Alegro, 513 Phil. 391, 2005).

In order for your marriage to be valid, your spouse must have obtained an order from the court declaring his first wife as presumptively dead. Even if your husband has reason to believe that his wife is dead, he still has to go to court to have her declared presumptively dead. The validity of your marriage will depend on this.

In addition, without this judicial declaration, you and your spouse may even be prosecuted for bigamy under the Revised Penal Code for contracting a subsequent marriage during the subsistence of a prior valid marriage.

We hope that we were able to enlighten you on the matter. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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