Missing Husband

Many among us believe that one can already re-marry if his or her spouse has been away for
several years. This is not really a misconception, but is actually allowed under the old law,
particularly the Civil Code of the Philippines which recognized the subsequent marriage, for so
long as the absent spouse had been unheard of for seven consecutive years. There was no need to
go to court to get a declaration. But there was a problem with this Civil Code provision, because
it conflicted with the Revised Penal Code (the criminal statute) which makes the remarrying
spouse criminally liable for bigamy unless there is first a judicial declaration that the absent
spouse is presumptively dead.
Since August 3, 1988, it has been the Family Code that governs the case of missing spouses. And
the rules have changed dramatically. First, the period of absence has been shortened from seven
years to four years. The reason given for this amendment is that it is now easier to communicate,
so if nothing is unheard of after four years, it presumably means that the missing spouse is
already dead. This period is further shortened to just two years, if the missing husband was last
seen boarding a plane or ship that went missing, or joined the armed forces and took part in war,
or was otherwise in danger of death. This provision is found under Article 41 of the Family
Code, which provides:
Art. 41. A marriage contracted by any person during 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 has 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 of only
two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse
present must institute a summary proceeding as provided in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse. (83a)
Our hypothetical today concerns Eldah who got married to Joel ten years ago in Pangasinan.
After just a few months, Joel suddenly did not come home anymore, but left behind his clothes
and other personal belongings in their house. Although Eldah has not heard from Joel, she has
received unconfirmed reports from relatives and friends that Joel went to the Middle East. There
was no way for Eldah to really find out what happened to Joel.
Meanwhile, young and beautiful as she still is, Eldah met Richard with whom she has deeply
fallen in love. Eldah approached us for advice on how she can legalize her union with Richard.
As can be gleaned from Article 41 of the Family Code which we cited above, three conditions
must be present before Eldah can legally marry Richard. First is that her first husband Joel must
have been absent for a period of at least four years. Here, Joel left Eldah and has not contacted
her since ten years ago. Therefore, the first condition appears to have been satisfied.
The second condition is that Eldah must have a well-founded belief that Joel was already dead.
In our case, although Eldah has not heard from Joel, she has nonetheless received news that Joel
is in the Middle East. With such information, Eldah cannot sincerely claim that she honestly
believes Joel to be already dead.
But let as assume for the moment that the last thing Eldah heard about Joel was that he was
kidnapped by some outlaws in Mindanao. This situation would appear to satisfy the second
requirement, since it is public knowledge that many kidnap victims in Mindanao are killed by
their abductors. Nonetheless, still under this assumed scenario, Eldah must comply with another
requirement, which is to go to court to get a declaration that Joel is presumed dead. She cannot
just by herself make such a declaration. There must be a court order to that effect.
After Eldah finally gets the court decision declaring Joel to be presumptively dead, she and
Richard can lawfully wed, without having to worry about being charged with bigamy. Again,
without the final court declaration of presumptive death, the marriage between Eldah and
Richard would be void, and they even face the risk of being charged with bigamy. (As a side
note, this is the same rationale behind Article 40 of the Family Code which requires a final court
decree of nullity of a previous void marriage).
But there is still one problem here. If one day Joel returns and executes and submits an affidavit
of his reappearance to the local civil register, Eldahs marriage to Richard will automatically
lapse. In lieu thereof, Eldahs previous marriage to Joel will be resurrected. Although Eldah is
already with Richard, she will still be shackled to Joel. Imagine the confusion such a situation
would bring! Unbelievable, isnt it? But this is really in Article 42 of the Family Code:
Art. 42. The subsequent marriage referred to in the preceding Article 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. (n)
So, whats the best option for Eldah if she wants lasting peace? Our advice is for her to file a
petition in Court to declare her marriage to Joel as null and void ab initio, not on the ground that
Joel is already dead, but because Joel suffers from psychological incapacity under Article 36 of
Family Code, or on other grounds that would void their marriage. From what we have learned
about Joels behaviour, it appears that he was already incapable of performing his marital
obligations to Eldah from the very start. His sudden departure without the knowledge of Eldah
and without informing her where he was going and his future whereabouts, betrays the absence
of the necessary psychological capacity to enter into and sustain a marital relationship.
http://asianjournalusa.com/missing-husband-p11089-154.htm
atty. Rogelio karagdag jr. aug. 20, 2014