November 22, 2017

Mrs. Maria Santos-Cruz

108 Rockwell Drive, Rockwell Center
Makati

Dear Mrs. Santos-Cruz:

This legal opinion seeks to answer your question as to what is the possible consequence if
your husband Jose didn’t file for presumptive death declaration in court.

The Facts
Per our discussion, the following are the pertinent facts:
On January 20, 2017 you married Jose Cruz believing he was a widower. Ana Borja his
first wife all of sudden showed herself and all of you found out that she wasn’t dead after all.
Anna Borja leaving her 6 months old baby and Jose his husband to work in Kuwait but
after their last conversation six years ago his husband never heard from her. Jose despite all his
efforts to reach Ana, searching for her, going to Kuwait two times with the recruiter but going
back to Philippines yielding no information, Jose having a well founded belief
that Ana was already dead conducted a second marriage.

The Applicable Law

The applicable law is paragraph 1 and 2 of Article 41 of the Family Code. It provides
that:

“A marriage contracted by any person during the

subsistence of a previous marriage shall be null and void, unless
before the celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive years and the spouse
present had a well-founded belief that the absent spouse was
already dead. In case of disappearance where there is danger of
death under the circumstances set forth in the provisions of
Article 391 of the civil code, an absence of only two years shall
be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph, the spouse present must institute
 a summary proceeding as provided in the code for the declaration
of presumptive death of the absentee, without prejudice to the
effect of reappearance of the absent spouse.”

On the above mention law, the foregoing provision is very much related and can be applied
to your situation that’s why your husband should obtain the Declaration of Presumptive Death
Declaration before conducting a subsequent marriage. Failing to do the required documents in
Article 41 of the Family Code, will make your marriage null and void without force and effect and
might be subject to the crime Bigamy or entering into a marriage with one person while still legally
married to another.
The Applicable Jurisprudence

For purpose of remarriage, the period of absence, the period of absence to be able to
presume an absentee dead has been shortened to a normal period of 4 years and 2 consecutive
years , if the disappearance occurred under circumstances describe in Art. 391 of family code
which is the danger of death is high. Declaration of Presumptive Death is the best evidence of the
well founded belief on the part of the present spouse that the absent spouse is dead. It immunizes
the present spouse from being charged of bigamy, adultery or concubinage. (Manuel v. people)