Basic ignorance

Can a spouse marry the second time merely because of a well founded belief that the absent spouse was already dead? If a marriage is solemnized by a Judge outside the area of his jurisdiction, is the marriage invalid? These are the two questions raised in an administrative case against Municipal Circuit Trial Court (MTCC) Judge HD whose jurisdiction covers the Municipality of Sta. Monica and Burgos, Surigao del Norte.

On September 27, 1994, Judge HD solemnized the wedding of Bert and Lyn. Bert listed his status in the marriage contract as “separated” but Judge HD still proceeded to solemnize their wedding on the basis of an affidavit acknowledged before the MTC Judge of Basey, Samar by two witnesses who attested: that they knew Bert to have been civilly married to Ina in September 1983; that after thirteen years of cohabitation and having borne five children, Ina left the conjugal dwelling; and that she has not returned nor been heard of for almost seven years thereby giving rise to the presumption that she is already dead.

Then on October 27, 1994, Judge HD also performed the marriage ceremony between Dan and Emmy. Upon the written request of Emmy, the wedding was solemnized not in his office but in his residence which is located in another Municipality of Dapa, Surigao del Norte that does not fall within his jurisdictional area.

Based on these two specific acts, an administrative complaint was filed against Judge HD for gross misconduct, inefficiency and ignorance of the law. Was Judge HD guilty?

Yes. Under Article 41 of the Family Code (FC), even if the spouse present has a well founded belief that the absent spouse was already dead, a summary proceeding for the declaration of presumptive death is necessary in order to contract a subsequent marriage. This is a mandatory requirement which has been precisely incorporated into the FC to discourage subsequent marriage where it is not proven that the previous marriage has been dissolved or that a missing spouse is factually or presumptively dead in accordance with pertinent provisions of law.

In the case of Bert, he did not institute a summary proceeding for the declaration of his first wife Ina’s presumptive death. Absent this judicial declaration, he remains marriage to Ina. It was therefore manifest error for Judge HD to accept and rely only on the joint affidavit submitted by Bert. Such neglect or ignorance of the law has resulted in a bigamous and thus void marriage between Bert and Lyn.

In the second wedding between Dan and Emmy, Article 3 of the FC requires as a formal requisite the “authority of the solemnizing officer”. Judges, who are appointed to specific jurisdictions, may officiate weddings only within said areas and not beyond (Article 7 FC). They perform wedding beyond their jurisdiction only at the point of death, in remote places or upon request of both parties in a written sworn statement to this effect (Article 8, FC). Where a judge solemnizes a marriage outside of his court’s jurisdiction, there is a resultant irregularity in the formal requisite laid down by Article 3, FC. This irregularity does not affect the validity of the marriage but subjects the solemnizing official to administratively liability.

Here Judge HB’s territory covers only Sta. Monica and Burgos. He was not clothed with authority to solemnize a marriage in Dapa where he resides. He cannot cite the exceptions in Article 8 because the request was only made by Emma and was not even a sworn statement. By citing Article 8 as grounds for the exercise of his misplaced authority, Judge HB again demonstrated a lack of understanding of the basic principles of civil law.

While magistrates may at times commit mistakes in judgment, for which they are not penalized, Judge HB exhibited ignorance of elementary provisions of law in an area which has greatly prejudiced the status of married persons. So he should be suspended for six months and given a stern warning that a repetition of the same or similar act will be dealt with more severely (Navarro vs. Domagtoy, A.M. MTJ 96-1088, July 19, 1998).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call Tel. 7249445.

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