Article 42 of the Family Code: When the absent spouse reappears

In Santos v. Santos (2014), the Supreme Court read Article 42 as a whole and listed four conditions. The second marriage ends by reappearance only when all of them are present:

1. There is no judgment annulling the first marriage or declaring it void ab initio.
2. A sworn statement of the fact and circumstances of reappearance is recorded in the civil registry of the residence of the parties to the second marriage.
3. The spouses of the second marriage receive due notice of the reappearance.
4. The fact of reappearance is undisputed, or a court has decided it.

So the second marriage may still exist after the absent spouse returns, for example if the sworn statement was never recorded or if no notice was given. The Court also recalled that a second marriage may be ended by a court action to prove the reappearance and obtain a declaration that the second marriage is dissolved.

Article 43 lists the effects:

• Children. Children of the second marriage conceived before it ended are legitimate.
• Property. The absolute community or conjugal partnership of the second marriage is dissolved and liquidated. A spouse who entered it in bad faith forfeits his or her share of the net profits in favor of the common children; if there are none, the children of the guilty spouse by a previous marriage; and if there are no children, the innocent spouse.
• Donations. Donations by reason of marriage stay valid, but those made to a donee who married in bad faith are revoked by operation of law.
• Insurance. The innocent spouse may revoke the designation of a spouse in bad faith as beneficiary in an insurance policy, even if the designation was stipulated as irrevocable.
• Inheritance. The spouse who contracted the second marriage in bad faith is disqualified to inherit from the innocent spouse, with or without a will.

If both spouses of the second marriage acted in bad faith, Article 44 says the second marriage is void ab initio, and the donations by reason of marriage and the testamentary dispositions between them are revoked by operation of law.

In Santos v. Santos (2014), a wife said her husband had obtained a declaration that she was presumptively dead through fraud, although she had never left. The Court held:

• An affidavit of reappearance is not the proper remedy when the person declared presumptively dead was never absent. The filing of such an affidavit would be an admission that the first marriage ended when the declaration was made.
• The proper remedy for a declaration obtained by extrinsic fraud is an action to annul the judgment. It can undo both the second marriage and the effects of the declaration.
• Only a second marriage contracted in good faith is protected by law. A marriage contracted in bad faith lacks the well-founded belief that the absent spouse is already dead, even after a court declaration.

The Court sent the case back to the Court of Appeals to decide whether there was extrinsic fraud. It also said that a judgment declaring presumptive death is a defense against prosecution for bigamy.