Manifest error

Can a married person marry again merely because of a well founded belief that his absent spouse is already dead? This is the question resolved in this case of Ben.

In September 1973, Ben married Lina. The couple seemed to be happy in their marriage as out of their cohabitation were born five children, three girls and two boys. But after thirteen years of marriage, Lina left the conjugal dwelling without Ben’s knowledge or consent. Since that time, she has not returned home. In his loneliness, Ben met Emmy an attractive lass in their hometown. Eventually the two fell in love with each other and decided to get married. At that time, Lina has been absent and has not been heard of for almost seven years already.

So on September 25, 1994, Ben and Emmy got married in a wedding solemnized by the Municipal Judge of their hometown. Ben listed his status in the marriage license and the marriage contract as “separated”. Apparently the Judge still proceeded to solemnize their wedding on the basis of an affidavit of two witnesses acknowledged before the Judge of a nearby municipality. In said affidavit the two witnesses attested: that they knew Ben to have been civilly married to Lina in September 1973; that after thirteen years of cohabitation and having borne five children, Lina left the conjugal dwelling; and that she has not returned nor has she been heard of for almost seven years thereby giving rise to the presumption that she is already dead. Was the Judge correct in solemnizing their marriage?

No. 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 Ben, he did not institute a summary proceeding for the declaration of his first wife Lina’s presumptive death. Absent this judicial declaration, he remains married to Lina. It was therefore manifest error for the judge to accept and rely only on the joint affidavit of two witnesses submitted by Ben. Such neglect or ignorance of the law has resulted in a bigamous and thus void marriage between Bert and Emmy.

The judge here 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. Ben’s case is in accordance with the ruling in the administrative case entitled “Navarro vs. Domagtoy”, A.M. MTJ 96-1088, July 19, 1998.

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