7/28/2019 Art 41-44

1/4

2. MARRIAGE WHEN ONE SPOUSE IS ABSENT

Art. 41. A marriage contracted by any person during subsistence of aprevious marriage shall be null and void, unless before the celebrationof the subsequent marriage, the prior spouse had been absent for four

consecutive years and the spouse present has a well-founded beliefthat the absent spouse was already dead. In case of disappearancewhere there is danger of death under the circumstances set forth in theprovisions of Article 391 of the Civil Code, an absence of only twoyears shall be sufficient.

For the purpose of contracting the subsequent marriage under thepreceding paragraph the spouse present must institute a summaryproceeding as provided in this Code for the declaration of presumptivedeath of the absentee, without prejudice to the effect of reappearanceof the absent spouse. (83a)

Art. 42. The subsequent marriage referred to in the preceding Articleshall be automatically terminated by the recording of the affidavit ofreappearance of the absent spouse, unless there is a judgmentannulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shallbe recorded in the civil registry of the residence of the parties to thesubsequent marriage at the instance of any interested person, with duenotice to the spouses of the subsequent marriage and withoutprejudice to the fact of reappearance being judicially determined in

case such fact is disputed. (n)

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

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

(2) The absolute community of property or the conjugalpartnership, as the case may be, shall be dissolved and

liquidated, but if either spouse contracted said marriage in badfaith, his or her share of the net profits of the communityproperty or conjugal partnership property shall be forfeited infavor of the common children or, if there are none, the childrenof the guilty spouse by a previous marriage or in default of

children, the innocent spouse;

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

(4) The innocent spouse may revoke the designation of theother spouse who acted in bad faith as beneficiary in anyinsurance policy, even if such designation be stipulated asirrevocable; and

(5) The spouse who contracted the subsequent marriage in badfaith shall be disqualified to inherit from the innocent spouseby testate and intestate succession. (n)

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 ofmarriage and testamentary dispositions made by one in favor of theother are revoked by operation of law. (n)

Art. 349, RPC. Bigamy. The penalty of prision mayor shall beimposed upon any person who shall contract a second or subsequent

marriage before the former marriage has been legally dissolved, orbefore the absent spouse has been declared presumptively dead bymeans of a judgment rendered in the proper proceedings.

http://www.chanrobles.com/civilcodeofthephilippines.htmhttp://www.chanrobles.com/civilcodeofthephilippines.htm

7/28/2019 Art 41-44

2/4

Jones V. Hortiguela

Marciana Escano died and a proceeding regarding her estate wascommenced. Her second husband Felix Hortiguela, the petitioner anddaughter of her first marriage, Angelita Jones, the respondent, were

appointed as the heirs.The partition of her estate was approved by the court. A year

later, Jones filed a motion to declare her the only heir, since she claimsthat the marriage between her mother and the petitioner were null andvoid.

In 1914, deceased wife and first husband got married. In January1918, the first husband went abroad and thereafter nothing was heard ofhim.

On October 1919, deceased wife asked the CFI that her husbandbe declared an absentee. It was said that declaration would take effect sixmonths after its publication.

On April 1921, the court declared that the judicial decree hastaken effect.

On May 1927, deceased wife and the petitioner were married.Jones contends that the declaration of absence must be

understood to have been made not on October 1919, but on April 1921,and from this latter date until the date of the second marriage, only 6years and 14 days had passed; accdg to Sec 3, parag 2, GO 68, themarriage was null and void.

ISSUE: WON the second marriage was void

HELD. No, the marriage was not void.For the purposes of the civil marriage law, it is not necessary tohave the former spouse judicially declared an absentee. The declarationof absence made was to enable the taking of the necessary precautionsfor the administration of the estate of the absentee.

The law requires that the former spouse be absent for 7consecutive years at the time of the second marriage. The date thatshould be considered, therefore, is January 1918, when Arthur left andwas never heard from again. Therefore, when the second marriage wascelebrated, Arthur was 9 years absent. Marriage is valid.

While it is submitted that the marriage contract does not appearrecorded in the marriage register of the municipality, such fact does notaffect the validity of marriage because such certificate was not the onlyproof of the existence of marriage.

Furthermore, deceased wife and Jones (daughter_ both believed

that Arthur was dead.

SSS V. Jarque de Bailon

Petitioner, SSS, seeks recovery of the funeral and death benefitsfrom the respondent. The SSS incorrectly gave the benefits to thepetitioner believing that she was the legitimate spouse and primarybeneficiary of the deceased SSS member.

After the Social Security Commissions finding that the deceasedhad a subsisting marriage, it declared the second marriage void.Deceaseds first wife was never absent. SSS asserts that the death benefits

should be given to the legitimate wife, who is the first wife.

ISSUE: WON the second marriage was valid

HELD: The second marriage was valid.

Having been solemnized before the Family Code, the applicablelaw is the Civil Code.

Art. 83. Any marriage subsequently contracted by any person

during the lifetime of the first spouse of such person with any person

other than such first spouse shall be illegal and void from itsperformance, unless:

(1) The first marriage was annulled or dissolved; or

(2.a) The first spouse had been absent for seven consecutiveyears at the time of the second marriage without the spousepresent having news of the absentee being alive

7/28/2019 Art 41-44

3/4

(2.b.) absentee, though he has been absent for less than sevenyears, is generally considered as dead and believed to be so bythe spouse present at the time of contracting such subsequentmarriage

(2.c) absentee is presumed dead according to Articles 390 and391.

Art. 390. After an absence of seven years, it being

unknown whether or not the absentee still lives, he shall

be presumed dead for all purposes, except for those of

succession.

The absentee shall not be presumed dead for the purposeof opening his succession till after an absence of ten years.If he disappeared after the age of seventy-five years, anabsence of five years shall be sufficient in order that his

succession may be opened. (n)

Art. 391. The following shall be presumed dead for allpurposes, including the division of the estate among theheirs:

(1) A person on board a vessel lost during a seavoyage, or an aeroplane which is missing, whohas not been heard of for four years since theloss of the vessel or aeroplane;

(2) A person in the armed forces who has takenpart in war, and has been missing for four years;

(3) A person who has been in danger of deathunder other circumstances and his existence hasnot been known for four years. (n)

The marriage so contracted shall be valid in any of the threecases until declared null and void by a competent court. (29a)

It bears noting that the marriage under any of these cases is

deemed valid until declared null and void by a competent court. (Note:

First wife had been absent for 15 years). The burden is on the partyattacking the validity of the second marriage to prove that the firstmarriage had not been dissolved.

Since the second marriage has been contracted because of apresumption that the former spouse is dead, such presumption

continues in spite of the spouses physical reappearance, and by fictionof law, he or she must still be regarded as legally an absentee untilsubsequent marriage is terminated as provided by law.

If the subsequent marriage is dissolved by the death of eitherspouse, the effects of dissolution of valid marriages shall arise. Good orbad faith of either spouse cannot be raised because the marriage cannotbe questioned except in a direct action for annulment, and that the actionfor annulment be brought during the lifetime of any one of the partiesinvolved (Art 87, par 2, Civil Code).

In the case at bar, as no step was taken to nullify the secondmarriage prior to the husbands death, respondent is rightfully the

dependent spouse-beneficiary of the deceased.

7/28/2019 Art 41-44

4/4

Valdez V. Republic

Angelita Valdez was married to Sofio in January 1971. Theyargued constantly because Sofio was unemployed and did not bringhome any money. In March 1972, the latter left their house. In October

1975, the husband showed up and they agreed to separate and executeda document to that effect. It was the last time they saw each other andhad never heard of ever since.

Believing that Sofio was already dead, petitioner marriedVirgilio Reyes in June 1985. Virgilios application for naturalization inUS was denied because petitioners marriage with Sofio was subsisting.Hence, in March 2007, petitioner filed a petition seeking declaration ofpresumptive death of Sofio.

ISSUE: Whether or not petitioners marriage with Virgilio is validdespite lack of declaration of presumptive death of Sofio.

HELD:

The court ruled that no decree on the presumption of Sofios death isnecessary because Civil Code governs during 1971 and not Family Codewhere at least 7 consecutive years of absence is only needed. Thus,petitioner was capacitated to marry Virgilio and their marriage is legaland valid.