Presumed dead

Can a married person legally marry again simply because she presumes that her spouse is already dead after being absent and unheard from for seven years? This is the question raised and answered in this case of Sofia.

Sofia married Alex in 1971. After giving birth to their only child, the couple argued constantly because Alex remained unemployed and did not bring home any money. After more than one year of marriage Alex left their conjugal dwelling. Sofia and her child waited for him to return but when Alex did not show up, Sofia decided to go back to her parents’ home in the province. Three years later, Alex showed up and after a serious talk for several hours the couple agreed to separate, executing a document to that effect.

Since then, Sofia did not see Alex again or hear from him or had any news about him or his whereabouts or whether he was alive or not. Finally after disappearing for almost ten years and believing that Alex was already dead, Sofia married Max in 1985. Considering however that her marriage to Alex was still subsisting, Sofia filed a Petition before the Regional Trial Court (RTC) seeking the presumptive declaration of Alex’s death.

The RTC however dismissed her petition for lack of merit holding that Sofia was not able to prove the well grounded belief that her husband is already dead based on a proper and honest to goodness inquiries and efforts to ascertain his whereabouts, pursuant to Article 41 of the Family Code (FC). In fact Sofia herself admitted that she did not try to find to look for Alex anymore in the light of their mutual agreement to live separately said the RTC. Was the RTC correct?

The RTC is correct in dismissing the petition but erred in applying Article 41 of the FC and holding that Sofia needed to prove a well founded belief that Alex was already dead. It is readily apparent that the two marriages of Sofia, first in 1971 to Alex, and in 1985 to Max, were both celebrated before the FC took effect on August 4, 1988. So the applicable law was still Article 83 (1) and (2) in relation to Article 390 of the Civil Code (CC). The said provisions only require for purposes of the civil marriage: that the former spouse has been absent for seven consecutive years at the time of the second marriage, that the spouse present does not know his or her spouse to be living, and that such former spouse is generally reputed to be dead and the spouse present so believes when she or he got married again.

So under the CC, the presumption of death is established by law and no court declaration is needed for the presumption to arise. Since death is presumed to have taken place by the seventh year of absence, Alex is presumed to be dead already by the time Sofia married Max in 1985. Consequently, at the time of Sofia’s marriage to Max, there existed no impediment to Sofia’s capacity to marry so her marriage to Alex is valid under paragraph 2 of Article 83 of the CC. The enactment of the FC in 1988 does not change this conclusion because it has retroactive effect only insofar as it does not prejudice or impair vested or acquired rights in accordance with the CC or other laws.

Hence Sofia’s petition should be dismissed because it is no longer necessary as the presumption of Alex’ death has arisen by operation of law. But Sofia was capacitated to marry Max in 1985, so said marriage is legal and valid (Valdez vs Republic, G.R. 180863, September 3, 2009).

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