Al Cheeno O.

Añonuevo

Trial Memorandum:

Statement of Facts:

1.) Petitioner, Anna Vasquez, got married to Andrew Garcia through a civil ceremony before
Judge Alberto Cruz of the Regional Trial Court of Legazpi, Branch 1.
2.) As a seaman, Andrew Garcia immediately got back to sea after a month from our
wedding date;
3.) On 10 May 1999, MV Alfredo, the vessel where Andrew was working at, sunk at the
Pacific Ocean and no one was found to have survived.
4.) On 20 June 2009, I filed for a Petition for the Declaration of Presumptive Death of
Andrew before Branch 1 of the Regional Trial Court of Legazpi
5.) On 10 December 2010 my said Petition was granted and Andrew was declared
presumptively dead
6.) On January 1, 2011, I got married to Herbert Vasquez and bore 3 children from said
marriage
7.) At my utmost suprise, Andrew reappeared at our house on 02 January 2011, after 12
years of being gone
8.) Andrew wants to get back with me on the ground that we are still validly married and can
cause the invalidation of my marriage with Herbert.
9.) I believe that my marriage with Herbert is valid and done in utmost good faith on our part
10.) Respondent, Andrew Garcia, of legal age, married, Filipino Citizen and a resident of
Legazpi City, after having been sworn in accordance with law hereby depose and state ,
that on 19 March 1999, I got married to Anna L. Garcia, now known as Anna L. Vasquez,
through a civil ceremony before Judge Alberto Cruz of the Regional Trial Court of
Legazpi Branch 1;
11.) On May 10 1999, MV Alfredo, the vessel where I was working as a Marine Engineer,
sunk at the Pacific Ocean;
12.) I survived said unfortunate event when Chinese fishermen saw me and took me to China;
13.) However due to trauma caused to my brain by the incident, Chinese medical doctors
diagnosed me with amnesia
14.) I was taken in a by a fine Chinese family and I was properly treated like their own son
15.) For ten years, I believed that I was Chinese and lived my life as my new family there
treated me
16.) However on April 10, 2010, when I saw the Philippine Flag at the Philippine Embassy in
China, I suddenly remembered everything from eleven years back;
 17.) Thus, on 01 December 2010, I decided to go back to the Philippines to search for my
family
18.) On January 2, 2011, I finally went to the house of my wife Anna but to my suprise, she is
already married living together with another man.
19.) I want to get back together with my wife because I believe that I am still her lawful
husband.

STATEMENT OF ISSUES

1.) Whether or not the marriage of petitioner to defendant is still valid

2.) Whether or not petitioner acted in good faith

Arguments:

1.) No.The marriage of the petitioner to defendant is no longer valid on the grounds that
“The Family Code clearly provides that a court declaration of presumptive death of a
spouse is indispensable before the other spouse may marry again. Failure to comply with
this requirement results not only in a void second marriage, but also opens the guilty
spouse to a criminal charge of bigamy. Article 41 of the Family Code reads:” (Source:
Law Forum/Secondary Authority)

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.

In other words, an absence of 4 years, it being unknown whether the other spouse is still alive
and the present spouse has a well-founded belief that the missing spouse is already dead, is a
ground to ask the court for a declaration of presumptive death (this is a summary proceeding, not
a special proceeding). The 4-year period, however, is reduced to 2 years in the following
circumstances:
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 [two] years since the loss of the vessel or aeroplane.

There are 4 requisites for the declaration of presumptive death under Article 41 of the Family
Code:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years
if the disappearance occurred where there is danger of death under the circumstances laid down
in Article 391, Civil Code.

2. That the present spouse wishes to remarry.

3. That the present spouse has a well-founded belief that the absentee is dead.

4. That the present spouse files a summary proceeding for the declaration of presumptive death
of the absentee.

This is also seen in the case of Republic v. Granada (G.R. No. 187512, June 13, 2012) (was
able to prove her “well-founded belief” that her absent spouse was already dead, such order
already final and can no longer be modified or reversed. Indeed, nothing is more settled in law
than that when a judgment becomes final and executory, it becomes immutable and unalterable.

Secondary Authorities
“A marriage contracted by any person during the 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 had a well-founded belief that the
absent spouse was already dead.” Manila Law Journal

“If a husband has been declared by the court presumptively dead, his wife shall be eligible to
remarry.” Atty. Persida Acosta, PAO. “Atttorney and General Opinion”

In case the disappearance or absence of the spouse happened under dangerous circumstances,
such as sinking of a ship, a period of two years is sufficient (Art. 41, Family Code of the
Philippines in relation to Art. 391, Civil Code of the Philippines).

Therefore, in order to validly file such a petition, your husband must be absent without any news
as to his whereabouts for the period stated above, and that you must truly believe him to be dead.
Manila Law Forum

… Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the
present spouse must first ask for a declaration of presumptive death of the absent spouse in order
not to be guilty of bigamy in case he or she marries again. Law Review Article – Carpio Dela
Cruz Law Ofice
Republic of the Philippines, vs Edna Orcelino-Villanueva (G.R. No. 210929, July 29, 2015.)
The well-founded belief in the absentee's death requires the present spouse to prove that his/her
belief was the result of diligent and reasonable efforts to locate the absent spouse and that based
on these efforts and inquiries, he/she believes that under the circumstances, the absent spouse is
already dead.

Republic v. Nolasco (G.R. No 94503, March 17, 1993)

It requires a "well-founded belief" that the absentee is already dead , in which petiotioner Anna
Vasquez have done, on a well founded belief that her husband is dead.
The previous cases in Republic v. Granada and in Edna Orcelino-Villanueva vs Republic of the
Philippines show relation to this case since Anna, contracted a second marriage in a well founded
belief that her husband is dead.

2.) Yes, petitioner acted in good faith, since the records show that it’s been that she
contracted a second marriage after 10 years of a well founded belief that her husband is
dead. Same also in the case of:
Republic v. Cantor (G.R. No.184621, December 10, 2013) “after more than four years
of not seeing or hearing from her spouse did she contracted a second marriage”
Eduardo Manuel, Plaintiff, v. People of the Philippines (G.R. No. 165842, November
29, 2005) he did so in good faith and without any malicious intent. He maintained that at
the time that he married the private complainant, he was of the honest belief that his first
marriage no longer subsisted.
Morigo vs. People (G.R. No. 145226, February 6, 2004) “That petitioner acted in good
faith before contracting a second marriage”
G.R. No. 145226, February 6, 2004 (Lucio Morigo y Cacho, v People of the
Philippines), G.R. No. 201061, July 3, 2013 (Sally Go-Bangayan v Benjamin
Bangayan) That in acting a second marriage good faith must be established.
Eduardo P. Diego, vs Judge Silverio Castillo, A.M. No. RTJ-02-1673 that in
contracting a second marriage to be valid, it should be done in good faith.

PRAYER
WHEREFORE, it is respectfully prayed for this Honorable Court that Judgement be
rendered ordering that petitioner’s marriage to respondent may be rendered invalid.