Proper and adequate remedy

In order to terminate the effects of a subsequent marriage contracted after a court has wrongfully declared the presumptive death of a spouse of the first marriage, what is the proper remedy of the first spouse? Is the mere filing of an affidavit of reappearance enough? This is answered in this case of Nina.

Nina has been married to Ricky for almost 27 years already when the latter left their conjugal dwelling to cohabit with another woman. Five months later, she learned that Ricky has already remarried the woman. On further verification she also discovered that in order to remarry, Ricky filed a petition in the Regional Trial Court (RTC) for declaration of her absence and presumptive death.

In the petition, Nina found out that Ricky made the following false allegations: that after their marriage they first resided in San Juan City but later on moved to Tarlac City where they engaged in buy and sell business; that when the business did not prosper, Nina convinced him to allow her to work in Hong Kong as a domestic helper; that while he initially refused he allowed her to work because of her insistence; that she supposedly left Tarlac after living together as husband and wife for almost 15 years and was never heard from again; that he exerted efforts to locate her by inquiring from her parents but they too did not know her whereabouts; that he also inquired about her from other relatives and friends but no one gave him any information; and that it is only after almost 12 years since she left that she filed the petition.

Nina also discovered that the notice of hearing of the petition was never published in a newspaper of general circulation and that the RTC already rendered a decision declaring her as presumptively dead only one month after filing the petition, thus enabling Ricky to remarry the other woman three months after the RTC decision.

Nina learned about Ricky’s petition and the RTC decision more than a year later when she could no longer avail of the remedies of new trial, appeal or petition for relief from judgment. So what she did was to file a petition before the Court of Appeals (CA) for annulment of the RTC decision on the ground of extrinsic fraud and lack of jurisdiction. She claimed she never resided in Tarlac; she never left their conjugal dwelling in QC and worked abroad but it was Ricky who left her and their children to cohabit with another woman. She argued that she was deprived of her day in Court when Ricky misrepresented their conjugal dwelling to be in Tarlac despite the fact that, all the time, they were residing in QC.

But the CA dismissed Nina’s petition for being the wrong remedy. According to the CA, the proper remedy was to file a sworn statement before the civil registry declaring her reappearance. Was the CA correct?

No. Mere filing of an affidavit of reappearance would not suffice for the purpose of not only terminating the subsequent marriage but also of nullifying its effects and the effects of the declaration of presumptive death. Annulment of judgment on the ground of extrinsic fraud is the proper remedy. There is extrinsic fraud when a litigant commits acts outside of the trial which prevents a party from having a real contest or from presenting all of his or her case, or when there is no fair submission of the controversy.

Nina’s allegations in her petition for annulment of judgment constitute extrinsic fraud and lack of jurisdiction. In fact there was even no publication of the notice of hearing of Ricky’s petition in a newspaper of general circulation.

Nina does not admit to have been absent so it would be inappropriate to file an affidavit of reappearance if she did not disappear in the first place. Besides, she seeks not merely the termination of the subsequent marriage but also the nullification of its effects. So an affidavit of reappearance is not a sufficient remedy because it will only terminate the subsequent marriage but not nullify the effects of the declaration of her presumptive death and the subsequent marriage.

Since an undisturbed subsequent marriage under Article 42 of the Family Code is valid until terminated, the “children of such marriage shall be considered legitimate, and the property relations of the spouses of such marriage will be the same as in valid marriage. If it is terminated by mere affidavit of reappearance, the children of the subsequent marriage conceived before the termination shall still be considered legitimate. Moreover, the judgment declaring presumptive death if not annulled is a defense against prosecution for bigamy (Santo vs. Santos, G.R. 187061, October 8, 2014).

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