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2. MARRIAGE WHEN ONE SPOUSE IS ABSENT 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. (83a) 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. (n) Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects: (1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate; (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; (3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law; (4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession. (n) Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n) Art. 349, RPC. Bigamy. The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.

Jones V. Hortiguela Marciana Escano died and a proceeding regarding her estate was commenced. Her second husband Felix Hortiguela, the petitioner and daughter of her first marriage, Angelita Jones, the respondent, were appointed as the heirs. The partition of her estate was approved by the court. A year later, Jones filed a motion to declare her the only heir, since she claims that the marriage between her mother and the petitioner were null and void. In 1914, deceased wife and first husband got married. In January 1918, the first husband went abroad and thereafter nothing was heard of him. On October 1919, deceased wife asked the CFI that her husband be declared an absentee. It was said that declaration would take effect six months after its publication. On April 1921, the court declared that the judicial decree has taken effect. On May 1927, deceased wife and the petitioner were married. Jones contends that the declaration of absence must be understood to have been made not on October 1919, but on April 1921, and from this latter date until the date of the second marriage, only 6 years and 14 days had passed; accdg to Sec 3, parag 2, GO 68, the marriage was null and void. ISSUE: WON the second marriage was void HELD. No, the marriage was not void. For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. The declaration of absence made was to enable the taking of the necessary precautions for the administration of the estate of the absentee. The law requires that the former spouse be absent for 7 consecutive years at the time of the second marriage. The date that should be considered, therefore, is January 1918, when Arthur left and was never heard from again. Therefore, when the second marriage was celebrated, Arthur was 9 years absent. Marriage is valid.

While it is submitted that the marriage contract does not appear recorded in the marriage register of the municipality, such fact does not affect the validity of marriage because such certificate was not the only proof of the existence of marriage. Furthermore, deceased wife and Jones (daughter_ both believed that Arthur was dead. SSS V. Jarque de Bailon Petitioner, SSS, seeks recovery of the funeral and death benefits from the respondent. The SSS incorrectly gave the benefits to the petitioner believing that she was the legitimate spouse and primary beneficiary of the deceased SSS member. After the Social Security Commissions finding that the deceased had a subsisting marriage, it declared the second marriage void. Deceaseds first wife was never absent. SSS asserts that the death benefits should be given to the legitimate wife, who is the first wife. ISSUE: WON the second marriage was valid HELD: The second marriage was valid. Having been solemnized before the Family Code, the applicable law is the Civil Code. Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any person other than such first spouse shall be illegal and void from its performance, unless: (1) The first marriage was annulled or dissolved; or (2.a) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive

(2.b.) absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage (2.c) absentee is presumed dead according to Articles 390 and 391.
Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession. The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n) Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs: (1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n)

First wife had been absent for 15 years). The burden is on the party attacking the validity of the second marriage to prove that the first marriage had not been dissolved. Since the second marriage has been contracted because of a presumption that the former spouse is dead, such presumption continues in spite of the spouses physical reappearance, and by fiction of law, he or she must still be regarded as legally an absentee until subsequent marriage is terminated as provided by law. If the subsequent marriage is dissolved by the death of either spouse, the effects of dissolution of valid marriages shall arise. Good or bad faith of either spouse cannot be raised because the marriage cannot be questioned except in a direct action for annulment, and that the action for annulment be brought during the lifetime of any one of the parties involved (Art 87, par 2, Civil Code). In the case at bar, as no step was taken to nullify the second marriage prior to the husbands death, respondent is rightfully the dependent spouse-beneficiary of the deceased.

The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court. (29a) It bears noting that the marriage under any of these cases is deemed valid until declared null and void by a competent court. (Note:

Valdez V. Republic Angelita Valdez was married to Sofio in January 1971. They argued constantly because Sofio was unemployed and did not bring home any money. In March 1972, the latter left their house. In October 1975, the husband showed up and they agreed to separate and executed a document to that effect. It was the last time they saw each other and had never heard of ever since. Believing that Sofio was already dead, petitioner married Virgilio Reyes in June 1985. Virgilios application for naturalization in US was denied because petitioners marriage with Sofio was subsisting. Hence, in March 2007, petitioner filed a petition seeking declaration of presumptive death of Sofio. ISSUE: Whether or not petitioners marriage with Virgilio is valid despite lack of declaration of presumptive death of Sofio. HELD: The court ruled that no decree on the presumption of Sofios death is necessary because Civil Code governs during 1971 and not Family Code where at least 7 consecutive years of absence is only needed. Thus, petitioner was capacitated to marry Virgilio and their marriage is legal and valid.