Bar Q and A #8

Either or both of the parties cannot contract marriage in the Philippines with another person without committing bigamy, unless there is compliance with the requirements of Art. 52 Family Code, namely: there must be a judgment of annulment or absolute nullity of the marriage, partition and distribution of the properties of the spouses and the delivery of their children’s presumptive legitimes, which shall be recorded in the appropriate Civil Registry of Property, otherwise the same shall not affect third persons and the subsequent marriage shall be null and void. (Arts. 52 and 53, FamilyCode)

The issue hinges on whether or not the missing husband was dead or alive at the time of the secondmarriage.

If the missing husband was in fact dead at the time the second marriage was celebrated, the second marriage was valid. Actual death of a spouse dissolves the marriage ipso facto whether or not the surviving spouse had knowledge of such fact. A declaration of presumptive death even if obtained will not make the marriage voidable because presumptive death will not prevail over the fact of death.

If the missing husband was in fact alive when the second marriage was celebrated, the second marriage was void ab initio because of a prior subsisting marriage. Had Ana obtained a declaration of presumptive death the second marriage would have been voidable.

In both cases, the fact that the German misrepresented his citizenship to avoid having to present his Certificate of Legal Capacity, or the holding of ceremony outside the church or beyond the territorial jurisdiction of the solemnizing officer, are all irregularities which do not affect the validity of the marriage.

Judicial declaration of presumptive death is only used for the purpose of contracting a subsequent marriage. Article 41 of the Family Code provides that for the purpose of contracting a subsequent marriage contracted by a person who had a well-founded belief that his/her prior spouse who had been absent for four consecutive years was already dead, the spouse present must institute a summary proceeding for the declaration of presumptive death of the absentee.

The contention of the AFP is incorrect. Because the Court has declared that the AFP can decide claims of death benefits of a missing soldier without requiring the claimant to first produce a court declaration of the presumptive death of such soldier and the claimant need only present any “evidence” which shows that the concerned soldier had been missing for such number of years and/or under the circumstances prescribed under Articles 390 and 391 of the Civil Code. Article 391 of the Civil Code provides that a person in the armed forces who has taken part in war and has been missing for four years shall be presumed dead for all purposes. Here, W informed the AFP that her husband had been declared missing since 1995, 23 years before the filing of her claim in 2018. There is, thus,  no need for a judicial declaration of presumptive death before the AFP can act on the claim of W.

a. The marriage is voidable for lack of parental At the time of their marriage, Solenn and Sonny were only 19 and 20 years old, respectively. Assuming their marriage was under the Family Code, Article 14 provides that parental consent is required where either or both of the parties are between 18 and 21 years old at the time of marriage. In the absence of such parental consent, Article 45 of the Family Code provides that the marriage is voidable. Since the marriage was against their parents’ wishes, their marriage is voidable. Unlike in the Civil Code, their being step-siblings is immaterial under the Family Code and will not render the marriage void since such is not considered incestuous nor against public policy.

b. Yes, it can be ratified by free Article 45(1) of the Family Code provides that such voidable marriage may be ratified by free cohabitation of the party/ies over 18 years old but below 21 who married without the consent of his/her parents, by living together as husband and wife after attaining the age of 21. Here, Solenn and Sonny freely cohabitated and lived as husband and wife after attaining 21 years, then the marriage is considered ratified, provided that the parents have not filed an action for annulment before the parties reached 21 years old.

i. Since AIDS is a serious and incurable sexually-transmissible disease, the wife may file an action for annulment of the marriage on this ground whether such fact was concealed or not from the wife, provided that the disease was present at the time of the marriage. The marriage is voidable even though the husband was not aware that he had the disease at the time of marriage.

ii. If the wife refuses to come home for three
(3) months from the expiration of her contract, she is presumed to have abandoned the husband and he may file an action for judicial separation of property. If the refusal continues for more than one year from the expiration of her contract, the husband may file an action for legal separation under Article 55(10) of the FC on the ground of abandonment of petitioner by respondent without justifiable cause for more than one year. The wife is deemed to have abandoned the husband when she leaves the conjugal dwelling without any intention of returning. (Art. 101, FC) The intention not to return cannot be presumed during the three-year period of her contract.

iii. If the husband discovers after the marriage that his wife was a prostitute before they got married, he has no remedy. No misrepresentation or deceit as to character, health, rank, fortune or chastity shall constitute fraud as legal ground for an action for the annulment of marriage. (Art. 46, FC)

iv. The wife may file an action for legal separation. The husband’s sexual infidelity is a ground for legal separation. (Art. 55 FC) She may also file an action for judicial separation of property for failure of her husband to comply with his marital duty of fidelity. (Art. 135 (4), 101, FC)

v. The wife may file an action for legal separation on the ground of repeated physical violence on her person (Art. 55 (1), FC). She may also file an action for judicial separation of property for failure of the husband to comply with his marital duty of mutual respect. [Art. 135 (4), 101, FC] She may also file an action for declaration of nullity of the marriage if the husband’s behaviour constitute psychological incapacity existing at the time of the celebration of marriage.