Declaration of presumptive death of missing spouse

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Your spouse has been missing for years, his or her whereabouts unknown.  Then after waiting and perhaps hoping, you finally found someone and would like to marry that person.

What should one do?

Article 41 of the Family Code of the Philippines provides that a person whose spouse has been missing or absent, may remarry without having the present marriage annulled or declared void, provided that all of the following elements are present:

  1. The present spouse wishes to remarry;
  2. The absent spouse has been missing for four (4) consecutive years OR in case of disappearance where there is danger of death, an absence of only two (2) years is sufficient;
  3. The present spouse has a well-founded belief that the absent spouse was already dead; and
  4. The present spouse files a summary proceeding in court for the declaration of presumptive death of the missing spouse;

Now, it is not as easy or as simple as declaring an absent spouse as

presumptively dead after 4 or 2 years of absence. The law states that the present spouse must have a well-founded belief that the absent spouse is dead.  Which means that the present spouse must show the court that diligent and reasonable efforts were exerted in locating the absent spouse.

            In the case of disappearance of only 2 years where there is danger of death, the absent spouse must have been under the following circumstances:

  1.  He/she was on board a vessel lost during a sea voyage;
  2.  He/she was on board an aeroplane which is missing;
  3.  He/she was in the armed forces who has taken part in war; or
  4.  He/she has been in danger of death under other circumstances.

Now that you have remarried, what happens when the spouse who was declared presumptively dead suddenly reappears?

If the missing spouse suddenly reappears and the fact and circumstances of his reappearance is recorded in the civil registry of the residence of the parties to the second marriage, said second or subsequent marriage shall be automatically terminated, without need of judicial declaration.

Some of the significant effects of such reappearance on the second or subsequent marriage are as follows:

  • Children of the subsequent marriage prior to termination shall be considered legitimate;
  • The absolute community of property or conjugal partnership shall be dissolved and liquidated;
  • The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate or intestate succession.

However, where both spouses of the second or subsequent marriage

acted in bad faith, the marriage shall be declared as void from the beginning and its effects being as if no such marriage ever occurred.

            Remember that Article 41 of the Family Code of the Philippines applies only for purposes of remarriage.  A person may be declared presumptively dead for other purposes under Article 390 of the Civil Code of the Philippines.

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