What Happens If a Spouse Declared Dead Comes Back?

A spouse may remarry while the first spouse is missing only after a court declares the absent spouse presumptively dead (Article 41). The declaration is made "without prejudice to the effect of reappearance of the absent spouse". Article 42 sets that effect:

"Automatically terminated" refers to the recording, not to the return itself. Until the sworn statement is recorded, the second marriage continues.

In Santos v. Santos (2014), the Supreme Court read Article 42 as setting four conditions:

1. there is no judgment annulling the first marriage or declaring it void;
2. the 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 are given due notice of the reappearance; and
4. the fact of reappearance is undisputed or decided by a court.

The Court said reappearance ends the second marriage "only when all the conditions enumerated in the Family Code are present." So the second marriage may still stand if the first marriage was already annulled or declared void, if no sworn statement is recorded, if the second couple was not notified, or if the reappearance is disputed in court and not yet decided.

The Court also noted that a second marriage may be ended through a court action to prove the reappearance and obtain a declaration that the second marriage is dissolved.

Article 42 says the recording is made "at the instance of any interested person". It does not limit this to the spouse who came back. The Family Code does not set the forms or fees for the recording.

They stay legitimate. Article 43(1) says the children of the second marriage conceived before its termination are considered legitimate, and Santos v. Santos repeated this for a marriage ended by reappearance.

When the second marriage ends, Article 43 sets these effects:

• the absolute community or conjugal partnership of the second marriage is dissolved and liquidated; a spouse who married in bad faith forfeits his or her share of the net profits, in favor of the common children, or if none, the children of the guilty spouse by a previous marriage, or if none, the innocent spouse;
• donations by reason of marriage stay valid, but those to a spouse who married in bad faith are revoked by operation of law;
• the innocent spouse may revoke the designation of the bad-faith spouse as beneficiary in an insurance policy, even if it was stipulated as irrevocable;
• the spouse who married in bad faith cannot inherit from the innocent spouse, with or without a will.

If both spouses of the second marriage acted in bad faith, the marriage was never valid:

A second marriage during an existing marriage can be bigamy under Article 349 of the Revised Penal Code. In Santos v. Santos, the Court said "a judgment declaring presumptive death is a defense against prosecution for bigamy." The Court added that only a second marriage contracted in good faith is protected: a spouse who knew the first spouse was alive lacks the "well-founded belief" that Article 41 requires. See Bigamy in the Philippines.

Santos v. Santos involved a wife who said she was never absent and that her husband obtained the declaration of her presumptive death by fraud. The Court said: "An affidavit of reappearance is not the proper remedy when the person declared presumptively dead has never been absent." The proper remedy for a declaration obtained by extrinsic fraud is an action to annul the judgment. The Court explained that recording an affidavit would only end the second marriage; it would not erase the declaration of presumptive death. The Court sent the case back to the Court of Appeals to decide whether there was fraud.

These are made-up examples to show how the rules work. They are not advice for any real case.

Nena and Rico. Nena left and was not heard from for four years. A court declared her presumptively dead, and Rico remarried in good faith. Nena comes back. The second marriage ends when a sworn statement of her reappearance is recorded in the civil registry of Rico's residence, with notice to Rico and his second wife. A child Rico and his second wife conceived before that stays legitimate.

Dina and Paul. Paul obtained a declaration that Dina was presumptively dead, although he knew where she lived. Dina was never absent. Under Santos v. Santos, her remedy is a court action to annul the judgment, not an affidavit of reappearance.

Talk to a lawyer if you are the returning spouse, the remarried spouse or the second spouse, especially if the reappearance is disputed, if there are children and property, or if someone says the declaration of presumptive death was obtained by fraud. These situations can also raise criminal questions such as bigamy.

If you cannot afford a lawyer, see Free legal help in the Philippines for the Public Attorney's Office (PAO) and other options.