Legal Issues and Family Matters Number 003 July 16 2008 PDF

No. 003 July 16, 2008 www.familymatters.org.ph and www.famli.blogspot.com By Atty. Gerry T.
Galacio
If a husband and wife have not seen [2] The Family Code only provides for a period of two
each other for seven years, is their years (extraordinary absence like in war, shipwreck,
marriage automatically void? storm, etc) or four years (ordinary absence) for a per-
son to be able to go to court and file a petition for
It is not accurate to say that if spouses have not
declaration of presumptive death of the missing
seen or communicated with each other for more
spouse. The seven year period of separation that
than seven years that the marriage is terminated
people usually refer to was previously provided for by
automatically or is considered void. In situations
the New Civil Code of the Philippines.
where one spouse has not seen for a number of
years or does not know what has happened to the [3] The court will however require the petitioner to
other spouse, he or she must file a petition asking present proof that he or she exerted earnest and dili-
the court to declare the missing spouse as pre- gent efforts to locate the whereabouts of the missing
sumptively dead for purposes of remarriage. spouse. These efforts include asking the police or NBI
for help in locating the missing spouse, using the me-
The Family Code, specifically Articles 41 to 44,
dia like newspapers or radio, etc. The court will deny
deals with the declaration of presumptive death
the petition if the petitioner cannot present such evi-
for purposes of remarriage. There are a lot of mis-
dence of earnest and diligent efforts to locate the
conceptions however about this portion of the
missing spouse.
Family Code. Please let me explain.
[4] If the court declares the missing spouse as pre-

[1] Article 40 provides that persons cannot take the
sumptively dead, then the petitioner will be able to
law into their own hands and simply declare by them-
remarry.
selves that their marriage is null and void. A person
who wants to remarry must first obtain a court decision [5] But the problem is, if any person (friend, relative,
declaring the previous marriage null and void before barangay official, etc) discovers that the missing
he or she can get married again. spouse is really alive, then that person can file an
1/2
2/2
affidavit of reappearance with the Local Civil Registrar. (3) Donations by reason of marriage shall remain valid,
If the petitioner had already gotten married, then that except that if the donee contracted the marriage in
subsequent marriage is automatically terminated, as bad faith, such donations made to said donee are
provided for by Article 42 (below). This can however revoked by operation of law;
be disputed in court by the spouse who remarried:

(4) The innocent spouse may revoke the designation
The subsequent marriage referred to in the pre- of the other spouse who acted in bad faith as bene-
ceding Article shall be automatically terminated by ficiary in any insurance policy, even if such designation
the recording of the affidavit of reappearance of the be stipulated as irrevocable; and
absent spouse, unless there is a judgment annulling

(5) The spouse who contracted the subsequent mar-
the previous marriage or declaring it void ab initio.
riage in bad faith shall be disqualified to inherit from
the innocent spouse by testate and intestate succes-
A sworn statement of the fact and circumstances of
sion.
reappearance shall be recorded in the civil registry
of the residence of the parties to the subsequent Note: Please surf to http://www.familymatters.org.ph
marriage at the instance of any interested person, to read Articles 40 to 44 of the Family Code.
with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of reap-
How to be saved and go to heaven
pearance being judicially determined in case such
fact is disputed. Accept that you are a sinner and that your good
works, ethical conduct or religion cannot save
you. Romans 3:10, Romans 3:23
Article 43 enumerates some of the effects of the
termination of the subsequent marriage: Believe on the Lord Jesus Christ that He alone
can save you. Romans 6:23, Romans 10:13, Acts
16:31
(1) The children of the subsequent marriage conceived
Confess and repent of your sins. Luke 13:3,
prior to its termination shall be considered legitimate;
Isaiah 1:18
(2) The absolute community of property or the conjugal Delay not in receiving Jesus Christ into your
heart. 2 Corinthians 6:2, Proverbs 27:1
partnership, as the case may be, shall be dissolved
and liquidated, but if either spouse contracted said Pray and ask the Lord to save you now: “Dear
Lord, I believe that Christ died and shed His pre-
marriage in bad faith, his or her share of the net profits cious blood to save my soul. Be merciful to me a
sinner, forgive my sins and save me in Jesus’ name.
of the community property or conjugal partnership pro- Lord Jesus, I now accept you as my Savior. Amen.”
perty shall be forfeited in favor of the common children
For more info, please contact Pastor Gerry Nable,
or, if there are none, the children of the guilty spouse Bethany Baptist Church; 1718 Dian corner Emilia
Sts. Palanan, 1235 Makati City, Philippines; 831-
by a previous marriage or in default of children, the 7734, 833-4576 to 77; [email protected]
innocent spouse;

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No. 003 July 16, 2008 www.familymatters.org.ph and www.famli.blogspot.com By Atty. Gerry T.

[4] If the court declares the missing spouse as pre-

be disputed in court by the spouse who remarried:

the recording of the affidavit of reappearance of the be stipulated as irrevocable; and

absent spouse, unless there is a judgment annulling

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