Family Code Article 41 in part states: “A marriage contracted by any person during 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 has a well-founded belief that the absent spouse was already dead…”. In this situation, the present spouse is allowed to marry another even if the first marriage has not been dissolved yet. In normal circumstances, the only way for a married person to marry again is when the marriage is dissolved by reason of death or court order. Here no actual dissolution of the marriage happens. According to Article 42 the subsequent marriage “shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse”. As early as 1988 when the Family Code came into effect, a case involving Article 41 was filed and for which the Supreme Court rendered a decision defining the requirements for the declaration of presumptive death of an absent spouse.
Republic vs. Nolasco
Gregorio Nolasco was a seaman who encountered Janet Monica Parker in a bar in England when their ship docked there. Janet then lived with Gregorio in his ship for six months and the latter brought Janet home to Antique where they eventually married. After some time, Gregorio found another work and left Janet in Antique. After some time, Nolasco received a letter from his mother saying that after giving birth, Janet left their house without giving any information where she went. Thereafter, Gregorio filed a petition for the declaration of the presumptive death of Janet with the Regional Trial Court after failing to locate the latter. During the trial he testified that all his letters addressed to the bar in Liverpool, England where Janet worked before were returned to him unopened. Janet’s friends were not also able to give any information on her whereabouts and Gregorio roamed around London but was not able to find Janet during the times their ship would dock there. The RTC granted the petition and declared Janet presumptively dead, capacitating Gregorio to remarry. The Solicitor General appealed to the Court of Appeals which affirmed the decision. The case was then elevated to the Supreme Court.
The RTC Erred
The Supreme Court reversed the decision of the RTC. The Court declared that Nolasco did not actually have a well founded belief that his wife was already dead. Gregorio’s act of roaming around London whenever they dock there and inquiring from Janet’s friends as to her whereabouts cannot satisfy the requirement of the law that the petitioning spouse should have a “well founded belief” that she is already dead. The SC said: “We do not consider that walking into a major city like Liverpool or London with a simple hope of somehow bumping into one particular person there — which is in effect what Nolasco says he did — can be regarded as a reasonably diligent search.”(Republic vs. Nolasco, G.R. No. 94053 March 17, 1993) The failure of Gregorio to find Janet by the means employed by him as he has claimed was not enough to satisfy the requirement of the law that the belief on the death of the absent spouse must be “well founded”. Being so, the Court cannot sustain the findings of the RTC and the CA.
