Introduction

In the Philippines, marriage is a sacred institution governed by strict legal principles under the Family Code of the Philippines (Executive Order No. 209, as amended). One of the fundamental rules is the prohibition against bigamy, which renders any subsequent marriage void if entered into while a prior marriage subsists. However, exceptions exist for cases where a spouse is presumed dead due to prolonged absence. The key question arises: What happens if someone enters into a second marriage based on the presumption of death of the first spouse but without obtaining a judicial declaration? This article explores the legal framework, requirements, implications, and relevant jurisprudence surrounding this issue, emphasizing that such a second marriage is generally considered void under Philippine law.

Legal Basis in the Family Code

The Family Code provides the primary statutory foundation for marriages and their validity. Article 35 declares certain marriages void from the beginning, including those that are bigamous or polygamous (Article 35(4)). A marriage is bigamous if contracted by a person whose previous marriage has not been legally dissolved or annulled, or where the absent spouse has not been declared presumptively dead by a court.

Article 41 specifically addresses remarriage after the absence of a spouse:

"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."

This provision underscores that while presumptive death can allow for remarriage, it is not automatic. The law mandates a judicial process to declare the absentee presumptively dead. Without this declaration, the second marriage violates the prohibition against bigamy and is void ab initio (from the beginning).

The rationale behind this requirement is to prevent abuse, ensure due process, and protect the sanctity of marriage. The state has a vested interest in regulating marital status to avoid conflicts in property rights, inheritance, and family relations.

Requirements for Judicial Declaration of Presumptive Death

To validly remarry under the presumption of death, the present spouse must satisfy specific conditions and follow a procedural path:

Period of Absence: The absent spouse must have been missing for at least four consecutive years under ordinary circumstances. If the disappearance occurred under extraordinary conditions involving danger of death (e.g., shipwreck, airplane crash, or armed conflict as per Article 391 of the Civil Code), the period is reduced to two years.
Well-Founded Belief: The present spouse must genuinely believe, based on reasonable grounds, that the absent spouse is dead. This belief should be supported by diligent efforts to locate the absentee, such as inquiries with relatives, authorities, or through public notices.
Summary Judicial Proceeding: The spouse must file a petition for declaration of presumptive death in the Regional Trial Court (RTC) of the place where the petitioner resides. This is a summary proceeding under Article 41, in conjunction with Articles 238 to 253 of the Family Code, which govern summary judicial proceedings in family law matters.
- The petition must include affidavits or evidence supporting the absence and the belief in death.
- Notice must be published in a newspaper of general circulation for two consecutive weeks.
- The court will issue the declaration if satisfied with the evidence, but this declaration is without prejudice to the reappearance of the absent spouse, which would automatically terminate the subsequent marriage (Article 42).

Failure to obtain this judicial declaration means the second marriage is entered into without legal basis, rendering it void. Even if the absent spouse is later confirmed dead, the lack of prior judicial action invalidates the remarriage retroactively.

Consequences of Contracting a Second Marriage Without Declaration

A second marriage without the required judicial declaration carries severe legal repercussions:

Void Marriage: The marriage is null and void ab initio. It produces no legal effects, except for the legitimacy of children born or conceived during the marriage (Article 54). The parties are considered never to have been married to each other.
Criminal Liability: The person who contracts the second marriage may be criminally liable for bigamy under Article 349 of the Revised Penal Code. Bigamy is punishable by imprisonment (prision mayor, ranging from 6 years and 1 day to 12 years). Prosecution requires proof that the first marriage was valid and subsisting, and that the second was contracted without dissolution or declaration.
Civil Consequences:
- Property Relations: Any property acquired during the void marriage is governed by co-ownership rules under Article 147 or 148 of the Family Code, depending on good or bad faith.
- Support and Inheritance: The "spouses" in the void marriage have no right to support or inheritance from each other as married persons.
- Children: Children are considered legitimate if conceived or born before the declaration of nullity, but parental authority and custody may be contested.
Reappearance of the Absent Spouse: If the absent spouse reappears, they can file for the termination of the subsequent marriage (Article 42). However, since the marriage was void from the start without declaration, reappearance merely confirms the invalidity. The reappearing spouse may also pursue criminal charges for bigamy.
Good Faith Defense: In some cases, if the second marriage was contracted in good faith (e.g., genuine belief in death without negligence in seeking declaration), the court may mitigate penalties or recognize certain civil effects. However, jurisprudence emphasizes that good faith alone does not validate the marriage without judicial action.

Relevant Jurisprudence

Philippine Supreme Court decisions have consistently upheld the necessity of judicial declaration:

Republic v. Nolasco (G.R. No. 94053, March 17, 1993): The Court ruled that the declaration of presumptive death requires strict compliance with procedural requirements, including diligent search. Mere absence is insufficient; evidence of well-founded belief must be presented.
Valdez v. Republic (G.R. No. 180864, September 8, 2009): Emphasized that the judicial declaration is mandatory for the validity of the subsequent marriage. Without it, the marriage is void, even if the absentee is later found dead.
Republic v. Cantor (G.R. No. 184621, December 10, 2013): The Court clarified that the summary proceeding is not a mere formality but a safeguard against fraudulent remarriages. It reiterated that the four-year (or two-year) absence must be continuous and unexplained.
Republic v. Sareñogon (G.R. No. 199194, February 10, 2016): Highlighted that the petitioner's failure to prove diligent efforts to locate the absentee invalidates the declaration, underscoring the high evidentiary threshold.
In more recent cases, such as Republic v. Dayot (G.R. No. 175581, March 28, 2008), the Court has stressed that psychological incapacity or other grounds for nullity cannot retroactively validate a bigamous marriage; the presumptive death route must be judicially pursued.

These cases illustrate the judiciary's strict interpretation to preserve marital integrity and prevent circumvention of the law.

Exceptions and Special Considerations

While the rule is stringent, certain nuances apply:

Extrajudicial Belief Insufficient: Even if the absence exceeds the required period and death is presumed in fact, without court intervention, remarriage is invalid. This distinguishes Philippine law from some jurisdictions where presumptive death may be factual rather than judicial.
Muslim Marriages: Under Presidential Decree No. 1083 (Code of Muslim Personal Laws), similar rules apply, but with adaptations for Islamic practices. However, judicial declaration remains essential for validity in civil contexts.
Foreign Marriages: If the second marriage occurs abroad, Philippine courts may recognize it under comity principles, but if it violates Philippine public policy (e.g., bigamy), it remains void for Filipino citizens (Article 15, Civil Code).
Annulment or Nullity as Alternatives: If grounds exist (e.g., lack of consent), the first marriage could be annulled separately, but this does not excuse bypassing the presumptive death procedure.

Practical Advice and Remedies

For individuals facing this situation:

Seek Legal Counsel: Consult a family law attorney to file for declaration if applicable.
File for Nullity: If already in a void second marriage, petition the RTC for a declaration of nullity to clarify status.
Preventive Measures: Always verify marital status through the Philippine Statistics Authority (PSA) or court records before remarrying.

In cases of reappearance, the innocent spouse may seek damages or file for legal separation from the first marriage if grounds exist.

Conclusion

In the Philippine legal system, a second marriage contracted without a judicial declaration of presumptive death of the absent spouse is unequivocally void. This rule, enshrined in the Family Code and reinforced by Supreme Court jurisprudence, serves to uphold the monogamous nature of marriage and prevent legal chaos. While the law provides a pathway for remarriage through summary proceedings, skipping this step exposes parties to criminal, civil, and familial consequences. Understanding these principles is crucial for anyone navigating marital issues involving absentee spouses, ensuring compliance with the law to protect rights and obligations.