Factually alive but legally dead spouse

By Atty. Eduardo T. Reyes III

 

Round like a circle in a spiral, like a wheel within a wheel

 Never-ending or beginning on an ever spinning reel

 Like a snowball down a mountain, or a carnival balloon

 Like a carousel that’s turning running rings around the moon

 Like a clock whose hands are sweeping past the minutes of its face

 And the world is like an apple whirling silently in space

 Like the circles that you find in the windmills of your mind!

Thus goes the lyrics of the song entitled “The Windmills of Your Mind” which shot to popularity in the late ’60s. The song tells of many things foremost of which is how difficult it could be at times to wrap your head around certain events that occur in life.

Judging by the swirling busyness of the crowd that has reclaimed the streets and the malls over the long weekend, it is undeniable that the people are inoculated by the sanguine disposition that finally, the vaccine for covid-19 had been discovered by leading pharmaceutical companies and will be made available very soon in this part of the world.

Yet it is not cause for instant rejoicing because not everyone was able to emerge unscathed from the lockdown. Many had been forced to veer away from their planned course, while others had fallen.

And since a pandemic is not an ordinary occurrence to every generation (the last one happened in the 1920s), confusion abounds on how to deal with the new normal as everyone seems flummoxed.

Then there are those that had failed to keep in touch and eventually vanished altogether.

It would be extra painful when the one who evaporates is someone’s spouse. When a husband or wife disappears without a trace, Article 41 of the Family Code of the Philippines licenses the present spouse to petition the court to declare that missing spouse as “presumptively dead” in order that he/ she can remarry. It states:

“Art. 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 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.”

It is primordial however that the spouse petitioning the court to declare the absent spouse as “presumptively dead”, must proceed from a “well-founded belief” that indeed the missing spouse is dead. In Republic v. Nilda B. Tampus, G.R. No. 214243, March 16, 2016, the Supreme Court tossed out a petition for declaration of presumptive death by ruling that: 

“The “well-founded belief” in the absentee’s death requires the present spouse to prove that his/ her belief was the result of diligent and reasonable efforts to locate the absent spouse and that based on these efforts and inquiries, he/ she believes that under the circumstances, the absent spouse is already dead. It necessitates exertion of active effort, not a passive one. As such, the mere absence of the spouse for such periods prescribed under the law, lack of any news that such absentee spouse is still alive, failure to communicate, on general presumption of absence under the Civil Code would not suffice. The premise is that Article 41 of the Family Code places upon the present spouse the burden of complying with the stringent requirement of “well-founded belief” which can only be discharged upon a showing of proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but more importantly, whether the latter is still alive or is already dead.”

The law indeed acknowledges that raising children and running a household are no easy feat. The enormous task is better shared with a spouse as partner such that when one spouse is judicially presumed dead, the present spouse can remarry and move on with his/ her life with the new spouse.

But the plot thickens when the spouse who had been presumed dead reappears. This is envisaged in Article 42 of the Family Code, thus:

“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.”

So just when the present spouse had thought all along that he/ she had already moved on to a new marriage and is looking forward to a new life, like a ghost from the past, the former spouse emerges back again.

What will be the legal effect of such reappearance on the second marriage?

In Social Security System v. Jarque Vda. De Bailon (G.R. No. 165545, 24 March 2006) it was held that “such absentee’s mere reappearance, even if made known to the spouses in the subsequent marriage, will not terminate such marriage”. This is because the former spouse who reappears is required to execute and file an Affidavit of Reappearance with the civil registry of the place where the spouse and his/ her new partner are residing in order that the second marriage will be deemed terminated. Inversely stated, if there is no compliance with the submission of the Affidavit of Reappearance, then the second marriage subsists even if the original spouse turns out to be still alive.

It can be said that this latter scenario where one person is married to two spouses at the same time is hedged around a legal paradox which can be described as: “a valid bigamous marriage”. This is an instance where the law against bigamy is considered to have been outfoxed.

This is indeed a legally mesmerizing scenario that evokes of the lyrics of the song, thus: “a carousel that’s turning running rings around the moon, like a clock whose hands are sweeping past the minutes of its face, and the world is like an apple whirling silently in space,

 like the circles that you find- in the WINDMILLS OF YOUR MIND”.

 

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).