A wife was able to validly obtain a judicial declaration of her husband’s presumptive death after he had disappeared for 10 years. She then remarried in accordance with law. To her surprise, a few years after her remarriage, her first husband reappeared. Does the first husband’s reappearance automatically, without need of any further act, terminate the second marriage? Explain briefly.
Suggested answer only. Not an official answer and not legal advice.
No, the first husband's reappearance does not automatically terminate the second marriage.
Under Article 42 of the Family Code, a subsequent marriage contracted after a declaration of presumptive death is automatically terminated only by recording an affidavit of reappearance in the proper civil registry. As held in SSS v. Vda. de Bailon, the mere physical reappearance of the absent spouse, without recording an affidavit or court action, does not terminate the subsequent marriage.
Here, the first husband merely reappeared without executing and recording an affidavit of reappearance in the civil registry. In the absence of such recording, his physical reappearance alone cannot terminate the second marriage.
Therefore, the first husband's reappearance does not automatically terminate the second marriage.
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Quick check
Under Article 42 of the Family Code, what is required to legally terminate a subsequent marriage contracted after a declaration of presumptive death?
Article 42 provides that a subsequent marriage is terminated only by recording an affidavit of reappearance in the proper civil registry.
Under Article 41 of the Family Code, what judicial remedy must a spouse obtain before contracting a valid subsequent marriage during the spouse's absence?
Article 41 requires a summary judicial proceeding for the declaration of presumptive death before contracting a second marriage.
In SSS v. Vda. de Bailon, what was the ruling of the Supreme Court regarding the physical reappearance of an absent spouse?
The Supreme Court held that physical reappearance alone without recording an affidavit of reappearance does not terminate the second marriage.
Where must the affidavit of reappearance be officially recorded to terminate a subsequent marriage under Article 42?
Article 42 requires the affidavit of reappearance to be recorded in the civil registry of the residence of the parties to the subsequent marriage.
Why was the first husband's contention that his physical reappearance automatically terminated his wife's second marriage legally incorrect?
The contention was incorrect because Article 42 requires recording an affidavit of reappearance in the civil registry to dissolve the second marriage.
Learn more about these topics
1. Presumptive Death Declaration
Under Article 41 of the Family Code, a marriage contracted by any person during the subsistence of a previous marriage is generally void. However, a subsequent bigamous marriage is valid if contracted after a spouse has been absent for four consecutive years, or two years in cases of danger of death, and the present spouse has a well-founded belief that the absent spouse is dead. To contract a valid subsequent marriage, the present spouse must institute a summary judicial proceeding for the declaration of presumptive death of the absent spouse without prejudice to the latter's unexpected reappearance.
2. Affidavit of Reappearance
Under Article 42 of the Family Code, the physical reappearance of the absent spouse does not automatically invalidate or terminate the subsequent marriage. For the subsequent marriage to be legally terminated, an affidavit of reappearance must be executed by the reappearing absent spouse or any interested person and recorded in the civil registry of the residence of the parties to the subsequent marriage. Statutory recording serves as notice to the public and the spouses, formally operating to dissolve the second marriage and restore the legal effects of the first marriage.
3. Presumption of Validity
In SSS v. Vda. de Bailon, the Supreme Court clarified that the physical reappearance of the absent spouse, even if known to the spouses, does not produce the legal effect of terminating the subsequent marriage in the absence of an affidavit of reappearance duly recorded in the proper civil registry. Until the statutory requirement of recording is complied with, or unless the second marriage is judicially annulled or declared void in a proper proceeding, the second marriage enjoys the presumption of validity, and the second spouse retains all rights appertaining to a lawful spouse.