Wrong remedy

In order to terminate the effects of a subsequent marriage contracted after a court has wrongfully declared the presumptive death of a spouse of the first marriage, what is the proper remedy of the first spouse? Is the mere filing of an affidavit of reappearance enough? This is answered in this case of Gina.

Gina has been married to Dick for almost 27 years when the latter left their conjugal dwelling to cohabit with another woman. Five months later, she learned that Dick had already remarried the woman. On further verification she also discovered that Dick filed a petition in the Regional Trial Court (RTC) for declaration of her absence and presumptive death, in order to remarry.

In the petition, Gina found out that Dick made the following false allegations: that after their marriage they first resided in San Juan City but later moved to Tarlac City where they engaged in buy-and-sell business; that when the business did not prosper, Gina convinced Dick to allow her to work in Hong Kong as a domestic helper; that while he initially refused, he allowed her to work because of her insistence; that she supposedly left Tarlac after living together as husband and wife for almost 15 years and was never heard from again; that he exerted efforts to locate her by inquiring from her parents but they too did not know her whereabouts; that he also inquired about her from other relatives and friends but no one gave him any information and that it is only after almost 12 years since she left that he filed the petition.

Gina also discovered that the notice of hearing of the petition was never published in a newspaper of general circulation and that the RTC already rendered a decision declaring her as presumptively dead only one month after filing the petition, thus enabling Dick to remarry another woman three months after the RTC decision.

Gina learned about Dick’s petition and the RTC decision more than a year later when she could no longer avail of the remedies of new trial, appeal or petition for relief from judgment. So what she did was to file a petition before the Court of Appeals (CA) for annulment of the RTC decision on the ground of extrinsic fraud and lack of jurisdiction. She claimed she never resided in Tarlac; she never left their conjugal dwelling in QC and worked abroad but it was Dick who left her and their children to cohabit with another woman. She argued that she was deprived of her day in Court when Dick misrepresented their conjugal dwelling to be in Tarlac despite the fact that, all the time, they were residing in QC.

But the CA dismissed Gina’s petition for being the wrong remedy. According to the CA, the proper remedy was to file a sworn statement before the civil registry declaring her reappearance. Was the CA correct?

No. Mere filing of an affidavit of reappearance would not suffice for the purpose of terminating the subsequent marriage and nullifying its effects and the effects of the declaration of presumptive death. Annulment of judgment on the ground of extrinsic fraud is the proper remedy. There is extrinsic fraud when a litigant commit acts outside of the trial which prevent 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.

Gina’s 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 Dick’s petition in a newspaper of general circulation.

Gina does not admit to have been absent so it would be inappropriate to file an affidavit of reappearance if she did not disappear. Besides, she seeks 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 (Santo vs. Santos, G.R. 187061, Oct. 8, 2014).