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Case in Point| What is the remedy if there was fraud in the filing of a Petition for Declaration of Presumptive Death of the other spouse?
If there is a prior existing marriage whether valid or void, the spouses cannot contract subsequent marriages even if the marriages are contracted abroad. If one of the spouses cannot just get marriage. If there is no ground for annulment or nullity of the marriage, the remedy is to file a petition for declaration of presumptive death of the absent spouse. In a previous case, we pointed out that there must be a well-founded belief that the absent spouse is dead. The present case reminds us of another situation where if there was fraud in the filing of the petition for declaration of presumptive death of the other spouse, the remedy is to file a petition to declare the decision void. It also gives us the effects of reappearance of the absent spouse.
The Spouses Santos have been married for 27 years until the man left the conjugal dwelling to cohabit with another woman and later on got married. He filed a petition for declaration of her absence and presumptive death alleging that for a while the lived in San Juan City and move to Tarlac where they engaged in a buy & sell business which did not prosper. It was alleged that the wife went to Hongkong to work after the business failed. He further alleged that she left the conjugal dwelling and despite efforts to locate her, she could not be located. She discovered that the notice of hearing was never published, but the court rendered a judgment declaring her presumptively dead, thus enabling the man to remarry. She learned about the filing of the petition and the decision after one year. She filed a petition to annul the RTC judgment with the CA on the ground of extrinsic fraud and lack of jurisdiction. She claimed that the allegations of her husband that she left the conjugal dwelling and that she worked in Hongkong were all false. Instead it was her husband who left the conjugal dwelling to cohabit with another woman. The CA dismissed the petition for being the wrong remedy and held that the appropriate remedy is to file a sworn statement before the Local Civil Registrar declaring her reappearance. Is the CA’s ruling correct? Why?
Answer: No. Mere filing of an affidavit of reappearance would not suffice. Annulment of judgment on the ground of extrinsic fraud is the proper remedy. There is extrinsic fraud when a litigant commits acts outside of the trial which prevents a party from having a real contest or from presenting all of his or her case, or when there is no fair submission of the controversy.
Her allegations in her petition for annulment of judgment constitute extrinsic fraud and lack of jurisdiction. In fact there was even no publication of the notice of hearing of her husband’s petition in a newspaper of general circulation.
She did not admit to have been absent so it would be inappropriate to file an affidavit of reappearance if she did not disappear in the first place. Besides, she sought not merely the termination of the subsequent marriage but also the nullification of its effects. So an affidavit of reappearance is not a sufficient remedy because it will only terminate the subsequent marriage but not nullify the effects of the declaration of her presumptive death and the subsequent marriage.
Since an undisturbed subsequent marriage under Article 42 of the Family Code is valid until terminated, the “children of such marriage shall be considered legitimate, and the property relations of the spouses of such marriage will be the same as in valid marriage. If it is terminated by mere affidavit of reappearance, the children of the subsequent marriage conceived before the termination shall still be considered legitimate. Moreover, the judgment declaring presumptive death if not annulled is a defense against prosecution for bigamy.
Annulment of judgment is the remedy when the Regional Trial Court's judgment, order, or resolution has become final, and the "remedies of new trial, appeal, petition for relief are no longer available through no fault of the petitioner." (Sec. 1, Rule 47, Rules of Court).
The grounds for annulment of judgment are extrinsic fraud and lack of jurisdiction. The court defined extrinsic fraud in Stilianopulos v. City of Legaspi: (Stiliana-Pulos v. City of Legaspi, 374 Phil. 879).
For fraud to become a basis for annulment of judgment, it has to be extrinsic or actual. It is intrinsic when the fraudulent acts pertain to an issue involved in the original action or where the acts constituting the fraud were or could have been litigated, It is extrinsic or collateral when a litigant commits acts outside of the trial which prevents a party from having a real contest, or from presenting all of his case, such that there is no fair submission of the controversy.
There was also no other sufficient remedy available to Celerina at the time of her discovery of the fraud perpetrated on her.
The choice of remedy is important because remedies carry with them certain admissions, presumptions, and conditions.
The Family Code provides that it is the proof of absence of a spouse for four consecutive years, coupled with a well-founded belief by the present spouse that the absent spouse is already dead, that constitutes a justification for a second marriage during the subsistence of another marriage.
The Family Code also provides that the second marriage is in danger of being terminated by the presumptively dead spouse when he or she reappears. Thus:
Article 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.
A sworn statement of the facts and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.
In other words, the Family Code provides the presumptively dead spouse with the remedy of terminating the subsequent marriage by mere reappearance.
The filing of an affidavit of reappearance is an admission on the part of the first spouse that his or her marriage to the present spouse was terminated when he or she was declared absent or presumptively dead.
Moreover, a close reading of the entire Article 42 reveals that the termination of the subsequent marriage by reappearance is subject to several conditions: (1) the non-existence of a judgment annulling the previous marriage or declaring it void ab initio; (2) recording in the civil registry of the residence of the parties to the subsequent marriage of the sworn statement of fact and circumstances of reappearance; (3) due notice to the spouses of the subsequent marriage of the fact of reappearance; and (4) the fact of reappearance must either be undisputed or judicially determined.
The existence of these conditions means that reappearance does not always immediately cause the subsequent marriage's termination. Reappearance of the absent or presumptively dead spouse will cause the termination of the subsequent marriage only when all the conditions enumerated in the Family Code are present.
Hence, the subsequent marriage may still subsist despite the absent or presumptively dead spouse's reappearance (1) if the first marriage has already been annulled or has been declared a nullity; (2) if the sworn statement of the reappearance is not recorded in the civil registry of the subsequent spouses' residence; (3) if there is no notice to the subsequent spouses; or (4) if the fact of reappearance is disputed in the proper courts of law, and no judgment is yet rendered confirming, such fact of reappearance.
When subsequent marriages are contracted after a judicial declaration of presumptive death, a presumption arises that the first spouse is already dead and that the second marriage is legal. This presumption should prevail over the continuance of the marital relations with the first spouse. The second marriage, as with all marriages, is presumed valid. The burden of proof to show that the first marriage was not properly dissolved rests on the person assailing the validity of the second marriage.
The court recognized the conditional nature of reappearance as a cause for terminating the subsequent marriage in Social Security System v. Vda. de Bailon. (520 Phil. 249 ). The mere reappearance will not terminate the subsequent marriage even if the parties to the subsequent marriage were notified if there was "no step . . . taken to terminate the subsequent marriage, either by [filing an] affidavit [of reappearance] or by court action." "Since the second marriage has been contracted because of a presumption that the former spouse is dead, such presumption continues inspite of the spouse's physical reappearance, and by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is terminated as provided by law."
The choice of the proper remedy is also important for purposes of determining the status of the second marriage and the liabilities of the spouse who, in bad faith, claimed that the other spouse was absent.
A second marriage is bigamous while the first subsists. However, a bigamous subsequent marriage may be considered valid when the following are present:
1. The prior spouse had been absent for four consecutive years;
2. The spouse present has a well-founded belief that the absent spouse was already dead;
3. There must be a summary proceeding for the declaration of presumptive death of the absent spouse; and
4. There is a court declaration of presumptive death of the absent spouse.
A subsequent marriage contracted in bad faith, even if it was contracted after a court declaration of presumptive death, lacks the requirement of a well-founded belief that the spouse is already dead. The first marriage will not be considered as validly terminated. Marriages contracted prior to the valid termination of a subsisting marriage are generally considered bigamous and void. Only a subsequent marriage contracted in good faith is protected by law.
Therefore, the party who contracted the subsequent marriage in bad faith is also not immune from an action to declare his subsequent marriage void for being bigamous. The prohibition against marriage during the subsistence of another marriage still applies. (Arts. 35(4) and 41; Santos v. Santos, G.R. No. 187061, October 8, 2014).
Dean Ed Vincent S. Albano is the Bar Review Director of Albano Bar Review Center. He authored books/reviewers in Civil Law, Political, Law, Remedial Law, and Legal Ethics.