FREE LEGAL ADVICE IN DEAR PAO COLUMN
Dear PAO,
My husband abandoned me 10 years ago. I have not heard from him since then, but his siblings told me that he is living in Mindanao. I want to get married again but I could not do so since my marriage is still recorded in the NSO. What may be the best option for me to re-marry: File for a case to declare my husband dead or file for an annulment case? The suggestion of my acquaintances is to have my husband declared dead because it is easier and less expensive.
Dea Dear Dea,
An order declaring the presumptive death of the husband or an order annulling the marriage or declaring it as null and void has the effect of allowing the petitioner in the first case and the spouses in the second to re-marry.
In the declaration of presumptive death, the present spouse may institute a summary proceeding for the purpose of declaring the presumptive death of his/her spouse who has been absent for four consecutive years and the former has a well-founded belief that the absent spouse was already dead, or after the absence of only two years if the said spouse disappeared where there is danger of death. However, it is stated under Article 42 of the Family Code that marriage contracted by a person who has declared his spouse as dead shall be automatically terminated by the recording of the Affidavit of Reappearance of the absent spouse. It is further stated under the law that any interested person may file a Sworn Statement of the fact and circumstance of reappearance in the civil registry of the residence of the parties to the subsequent marriage without prejudice to judicial determination of such fact in case the same is disputed.
On the other hand, a married person may contract a second marriage if his previous marriage is annulled or declared as null and void. Here, the respondent-spouse shall be notified of the filing of the petitioner-spouse through summons, wherein the former shall be ordered to file his answer within 15 days from receipt of summon. The court shall only issue an order after hear- ing and presentation of evidence of the parties. An order annulling a marriage or declaring it null and void becomes final when no appeal is being filed. After its finality, the same can no longer be set aside unless the order is being annulled on grounds of extrinsic fraud or lack of jurisdiction ( A.M. 02-11-10-SC, RE: Proposed Rule on Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable Marriages; Section 2, Rule 47, Rules of Court).
The declaration of presumptive death involves an expedient proceeding wherein the court may render an order thereto within the short period of time compared to the proceeding for annulment or declaration of nullity of marriage, which involves a full-blown trial in court. Indeed, the person whose spouse is declared dead may remarry soon. Despite this, you may not be able to avail of the process of having your husband declared presumptively dead because, although he has abandoned you, you stated that his siblings know that he is living in Mindanao. Such process would put you in a situation whereby your subsequent marriage may be declared void by the re-appearance of your husband. It is still best that you file for annulment or declaration of nullity of marriage for purpose of re-marriage. You need to obtain information of his whereabouts in Mindanao for the courts to be able to send summons to him.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have written us. The opinion may vary when other facts are stated.