Tuesday, December 08, 2009

If a husband and wife have not seen each other for more than seven years, is their marriage void?

Notes: (1) Pastors should beware of giving advice on this topic. I have been told that some pastors are advising their church members that if a husband and wife have not seen each other or have had no communication for more than seven years, then the marriage is void. This is wrong as you can read from the post below.

(2) Click the picture to download a free PDF newsletter on this topic.

It is wrong to say that if spouses have not seen or communicated with each other for more than seven years that the marriage is terminated automatically or is considered void. In situations where one spouse has not seen for a number of years or does not know what has happened to the other spouse, he or she must file a petition asking the court to declare the missing spouse as presumptively dead for purposes of remarriage.

The Family Code, specifically Articles 41 to 44, deals with the declaration of presumptive death for purposes of remarriage. There are a lot of misconceptions however about this part of the Family Code. Please let me explain.

[1] Article 40 provides that persons cannot take the law into their own hands and simply declare by themselves that their marriage is null and void. A person wanting to remarry must first obtain a court decision declaring the previous marriage null and void before getting married again.

[2] The Family Code only provides for a period of two years (extraordinary absence like in war, shipwreck, storm, etc) or four years (ordinary absence) for a person to be able to go to court and file a petition for declaration of presumptive death of the missing spouse. The seven years separation that people usually refer to was previously provided for by the New Civil Code.

[3] The court will however require the petitioner to present proof that he or she exerted earnest and diligent efforts to locate the whereabouts of the missing spouse. These efforts include asking the police or NBI for help in locating the missing spouse, using the media like newspapers or radio, etc. The court will deny the petition if the petitioner cannot present such evidence of earnest and diligent efforts to locate the missing spouse.

[4] If the court declares the missing spouse as presumptively dead, then the petitioner will be able to remarry.

[5] But the problem is if any person (friend, relative, barangay official, etc) discovers that the missing spouse is really alive, then that person can file an affidavit of reappearance with the Local Civil Registrar. If the petitioner had already gotten married, then that subsequent marriage is automatically terminated. This is provided for by Article 42 of the FC.

Posted below are the specific provisions of the Family Code on this matter:
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

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.

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.

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and

(5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession.

Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law.

Free PDF newsletters on legal matters affecting the Filipino family and local Baptist churches

Issue no. 001 June 17, 2008
"Can a husband and wife in a notarized document declare that they are free to marry other persons and that they will not file charges against each other?"

Issue no. 002 June 31, 2008 "Adultery, concubinage, psychological violence and marital infidelity"

Issue no. 004 July 31, 2008 "Financial support for abandoned woman and her children"

Issue no. 005 August 15, 2008 "What surname should illegitimate children use? Problems and issues with RA 9255 and its implementing guidelines"

Issue no. 006 August 30, 2008 "The right of a divorced Filipino spouse to remarry under Article 26 of the Family Code"

Issue no. 007 September 15, 2008 "SEC registration of local Baptist churches; corporation sole and religious society or aggregate"

Issue no. 008 September 30, 2008 "Visitation rights over illegitimate children"

Issue no. 009 October 15, 2008 "Due process in the termination of employment; employee must be given five days to answer charges against him"

Issue no. 010 November 15, 2008 "Property rights of foreigners married to Filipino citizens; Can foreign citizens own lands or houses in the Philippines?

Issue no. 011 December 15, 2008 Primer on Republic Act No. 9439 Hospital Detention Law

Issue no. 012 January 15, 2009 Procedures in domestic and inter-country adoption; simulation of birth is illegal

Issue no. 013 February 15, 2009 Can a mother be deprived of custody of her child? What determines the fitness of a parent in custody batlles over children?

Issue no. 014 March 15, 2009 Miss, Ms. or Mrs? Philippine law on surnames for married women

Issue no. 015 April 30, 2009 How to compute the legitime (share in the inheritance) of illegitimate children

Issue no. 016 May 31, 2009 Philippine law on household helpers

Issue no. 017 June 30, 2009 RA 9485 Anti-Red Tape Act of 2007

Issue no. 018 July 31, 2009 Void marriages

Issue no. 019 August 31, 2009 Voidable marriages

Issue no. 020 September 30, 2009 If a woman gets pregnant by a man not her husband, will the child be legitimate or illegitimate?

Issue no. 021 October 31, 2009 Can nephews and nieces inherit from grandparents, unmarried uncles or aunts?

No comments: