Thursday, February 2, 2017

Legal Counselling and Social Responsibility - Legal Advice

LADIAO, John Paul C.             Legal Counselling and Social Responsibility - USPF Law


Below is a brief summary pertaining another letter received by your law office from Mr. Joe dela Cuesta seeking for legal advice:

“I am separately living from my wife for seven years now. I want to file an annulment but I don’t know her whereabouts and I haven’t heard from her since we last met. I am currently working on board a cruise ship, thus I only have 2 to 3 months as vacation every year. Another thing is that if I ever purchase a lot under my name, will she still have a claim on this property as conjugal even if we are already separated?”


Mr. Joe dela Cuesta,

            Season’s greetings of joy!

Living separately from your wife for seven years now, having no personal knowledge of her whereabouts and never heard since last you met her, according to our Family Code, will not terminate or void your marriage. The termination and voiding of your previous marriage can only be declared on the basis solely by obtaining a final judgment by our Courts in order to get married again.

Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.

The Family Code provides a period of four years of ordinary absence or two years of extraordinary absence like natural calamities, war and etc., for a surviving spouse to file a petition for declaration of presumptive death of the missing spouse in Court.

Art. 41. 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 case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.

Filing an annulment is not the advisable legal action in your situation. The filing for petition for declaration of presumptive death for purposes of remarriage would be the proper legal action for you. If the court declares, that your wife, the missing spouse is presumptively dead, then you as the petitioner will be able to remarry again.

    Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

    (1) xxx

    (2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;

I would also like you to know that if any interested person, who is a relative or friend, obtains personal knowledge that your wife, who is the missing spouse, is alive, then that interested person can file an affidavit of reappearance with the Civil Registry. If you had already gotten married again on that moment, then that new subsequent marriage is automatically terminated as provided by the Family Code:

  Art. 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 fact 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.

As a general rule, you are required to attend the hearings when you file a petition for declaration of presumptive death for purposes of remarriage. Since you are currently working on board a cruise ship, and have only 2 to 3 months as vacation every year, it is possible to ask the court with the aid of your lawyer to schedule the hearings at the time of your vacation when you are physically here in the Philippines.

With the aid of your lawyer, the remedy available even if you are out of the country in which certain portions of your petition for declaration of presumptive death for purposes of remarriage can be held by the Courts, Modes of Discovery on Rules of Court, Depositions before action; petition:


Depositions Before Action or Pending Appeal

Section 1.         Depositions before action; petition. — A person who desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines may file a verified petition in the court of the place of the residence of any expected adverse party.

Section 2.         Contents of petition. — The petition shall be entitled in the name of the petitioner and shall show: (a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition for the purpose of perpetuating their testimony.

Your marriage now is still valid as of the moment even though you don’t know her whereabouts and don’t hear from her since you last met. If you ever purchase now a lot under your name, she will still have a claim on the property as conjugal even if you are already separated. If your wife appears again anytime, she will have rights to claim her ownership share of the property, as stated in the Family Code:

Chapter 3. System of Absolute Community
Section 2. What Constitutes Community Property

Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.

But with strong evidence of documents, items and witnesses that you purchased and acquired a lot under your name with your own personal exclusive money without a single centavo contribution from your wife, in which you have not seen or communicated with each other for more than seven years, it is possible that it cannot be part of the conjugal property, as stated in an analogous situation of facts in a case held by the Supreme Court, that the spouse did not contribute a single centavo in the acquisition of the properties, was an exception:

Borromeo vs. Descallar, G.R. No. 159310, February 24, 2009.

Certificates of title are not a source of right. The mere possession of a title does not make one the true owner of the property. Thus, the mere fact that respondent has the titles of the disputed properties in her name does not necessarily, conclusively and absolutely make her the owner. The rule on indefeasibility of title likewise does not apply to respondent. A certificate of title implies that the title is quiet, and that it is perfect, absolute and indefeasible. However, there are well-defined exceptions to this rule, as when the transferee is not a holder in good faith and did not acquire the subject properties for a valuable consideration. This is the situation in the instant case. Respondent did not contribute a single centavo in the acquisition of the properties. She had no income of her own at that time, nor did she have any savings. She and her two sons were then fully supported by Jambrich.

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