Presumption of Death and Its Effect on the Nullity of Marriage
Philippine Legal Perspective
I. Conceptual Framework
| Key Concept | Source Provision | Core Idea |
|---|---|---|
| Presumption of Death | Civil Code arts. 390–391 (still in force unless modified) | A person missing for 7 yrs (ordinary) or 4 yrs (extraordinary peril) is presumed dead for “all purposes.” |
| Presumptive Death for Remarriage | Family Code art. 41 | A spouse who has been absent for 4 yrs (2 yrs if in danger of death) may be judicially declared presumptively dead so that the present spouse can remarry “validly.” |
| Void (Null) Marriage | Family Code art. 35(1) | “Bigamous or polygamous” unions are void ab initio—they never produce a valid marital bond. |
| Termination of Subsequent Marriage | Family Code art. 42 | If the “absent” spouse reappears and the spouses in the second marriage opt to resume life with the first spouse, the subsequent marriage is automatically terminated. |
II. How Presumption of Death “Cures” Bigamy
Without a Judicial Declaration
- If a spouse contracts a second marriage without first obtaining a judicial declaration of presumptive death of the first spouse, the second union is bigamous and void.
- The regular presumption of death under the Civil Code (art. 390) is not enough; art. 41 of the Family Code expressly requires a prior court declaration.
With a Judicial Declaration
- The declaration eliminates the subsisting-marriage impediment at the moment it becomes final and executory.
- Consequently the subsequent marriage is valid from the start (it is neither “voidable” nor “conditionally valid”) unless and until the requirements of art. 42 are triggered by reappearance.
Effect on Nullity Proceedings
- Before declaration: a case to declare the second marriage void (Nullity of Marriage under art. 35) will prosper.
- After declaration: no ground for nullity exists; instead, any contest would relate to later termination (art. 42) rather than “nullity.”
III. Procedural Requirements Under Article 41
| Step | Detail |
|---|---|
| 1. Verified Petition | Filed in the Regional Trial Court (RTC)–Family Court where the petitioner resides. |
| 2. Summary Proceeding | Governed by A.M. No. 02-11-10-SC (“Rule on Declaration of Presumptive Death”)—meant to be expeditious. |
| 3. Due Diligence Standard | Petitioner must prove “well-founded belief” that the absentee is dead, e.g., exhaustive search efforts, inquiries with authorities, Red-Cross, military, media, etc. (see Republic v. Nolasco, G.R. No. 94053, 17 Mar 1993). |
| 4. Registry & Publication | Decision must be recorded in the civil registry; absence of entry does not void the judgment but may affect notice to third parties. |
IV. Interaction with Property Relations
| Scenario | Governing Rule | Effect |
|---|---|---|
| Prior Absolute Community/Conjugal Partnership subsists at disappearance | Family Code arts. 96, 124 | Management by present spouse continues; no liquidation occurs merely due to absence. |
| After Judicial Declaration + Remarriage | art. 43(2) | Liquidation of the property regime of the first marriage must precede the remarriage; failure does not void the new marriage but may expose the spouse to solidary liability for debts. |
| Reappearance of Absent Spouse | arts. 42–43 | Income & acquisitions of each marriage are treated separately; if the “present” spouse chooses the reappearing spouse, property regime with the second spouse is liquidated as if dissolved. |
V. Reappearance and “Automatic” Effects (Articles 42–44)
Automatic Termination or Continuance
- Within a reasonable time after knowledge of the reappearance, the spouse in the subsequent marriage must choose which spouse to live with.
- Non-choice defaults to continuing with the second marriage; the first marriage is thereby terminated.
No Retroactive Nullity
- The second union does not revert to void; it simply ends prospectively if the spouses opt to revive the first marriage.
- Children conceived prior to termination remain legitimate (art. 54).
Penal Liability for Bigamy?
- If the second marriage was valid (judicial declaration obtained), no bigamy liability exists even if the absentee later reappears (see People v. Court of Appeals, G.R. No. 119190, 29 Aug 2000).
- If no declaration was procured, criminal bigamy attaches, and the civil marriage is void.
VI. Key Jurisprudence
| Case | G.R. No. | Held | Significance |
|---|---|---|---|
| Republic v. Nolasco | 94053 (1993) | Affirmed that “well-founded belief” demands diligent search. | First authoritative interpretation of art. 41. |
| San Luis v. San Luis | 133743 (2007) | Second marriage w/out declaration is void; property issues can still be litigated. | Clarified void ab initio nature despite parties’ good faith. |
| Cantor v. Benguet Corp. | 184236 (2010) | Workers’ compensation: presumption of death (art. 390) can attach independently of art. 41. | Shows dual tracks of “civil” vs “marital” presumptions. |
| People v. CA (Abapo) | 119190 (2000) | No bigamy where judicial declaration was obtained before remarriage, even if spouse later returns. | Confirms protective purpose of art. 41. |
VII. Comparative Notes
Civil Code vs. Family Code
- Art. 390 applies for all purposes (succession, insurance, contracts) but does not suffice to remarry.
- Art. 41 introduces a stricter, marriage-specific hurdle to guard against collusion and hasty remarriages.
Presumptive Death vs. Annulment/Nullity
- Presumptive death removes an impediment; it does not “invalidate” the first marriage.
- Nullity adjudicates that a marriage never existed in law (e.g., bigamy, psychological incapacity).
- Thus, a declaration under art. 41 is preventive, whereas a nullity decree is curative after the fact.
VIII. Practical Take-Aways for Practitioners
- Secure the Court Order First – Always advise clients not to remarry until the presumptive-death judgment is final.
- Document the Search – sworn affidavits, police reports, letters to hospitals, even social-media sweeps can evidence diligence.
- Record & Publish – ensure entry in the civil registry; notify the Philippine Statistics Authority.
- Address Property Early – commence liquidation of the first marriage’s regime once the decision becomes final; bank on art. 43(2).
- Protect against Bigamy Charges – remember that “good faith” does not excuse bigamy absent the judicial declaration.
- Advise on Reappearance Options – explain the “election” mechanism under art. 42; prepare for property consequences either way.
IX. Conclusion
The presumption of death under Article 41 of the Family Code acts as a legal safety valve that lets an abandoned spouse rebuild a family life without courting bigamy. Its effect on nullity is decisive: obtain the declaration and the new marriage is safe; skip it and the union is void from inception. Understanding this pivot—together with the procedural safeguards and property ramifications—is indispensable for both family-law counsel and judges administering justice in the Philippines.