M&M Law Firm

Mataro Compound, San Isidro Street

Brgy. Sta. Cruz, Municipality of Palo, Leyte, Philippines
____________________________________________

November 2, 2016

Madam:

Greetings!

This has reference to your legal inquiry with respect to your intention to contract
marriage including your concerns of your marriage with Al Pacino. In this letter, I will
provide you with my legal opinion and analysis so you can make a qualified decision
regarding your inquiry. I will first restate the facts, for you to confirm their accuracy.
Likewise, I will provide you with an explanation of the law as it applied in your case, and
lastly, give you my opinion on what possible remedies you can take.

I. FACTS OF THE CASE

Sometime in January 2010, you met Al Pacino. After few weeks of courtship, you
both decided to contract marriage before the City Mayor of Tacloban on March 03, 2010.

Regrettably, your married life only lasted for three (3) months, by reason of Al
Pacino’s unexplained absence. Sometime on October 2011, he left your conjugal house
without a word. From then on he did not show anymore.

You even went to his parents to inquire of his whereabouts and/or convince him
to go back home. However, it turned out that he was not there instead you were advised
to wait for him. However, after five years of waiting, still no Al Pacino ever showed.
Thus, this inquiry on the possibility of contracting a subsequent valid marriage.

II. ISSUE/S FOR RESOLUTION

The core and primary issue to be resolved in the above-given circumstances is

whether or not Greta Garbo can still validly and legally remarry considering her
subsisting marriage to Al Pacino, the whereabouts of the latter being unknown for more
than five (5) years already.

III. FACTUAL AND LEGAL DISCUSSION

The pertinent provision of law which finds application to this particular case is
Article 41 of the Family Code. Under the afore-mentioned provision it provides that:

Art. 41. 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 (4) consecutive years and the spouse present
had 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 (2) years shall be sufficient.

For the purpose of contracting the subsequent marriage under the

preceding paragraph, the spouse present must institute a summary

1
 proceeding as provided for in this Code for the declaration of
presumptive death of the absentee, without prejudice to the effect
of the reappearance of the absent spouse. (Emphasis supplied)

Applying the above provision of law, Greta Garbo can legally and validly contract
a subsequent marriage after she has properly complied with the requirements set forth by
law. For purposes of contracting a subsequent marriage under this provision of law, the
following legal requisites must first be properly complied as follows1:

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.

In the case at hand, Al Pacino, who is sought to be declared as presumptively

dead, has been absent for more than five (5) consecutive years already. He left the
conjugal dwelling sometime on October 2011 and until now, he has not reappeared.
Aside from his whereabouts being unknown, whether he is still alive is also in question.
This legal remedy is being resorted to by the petitioner (Greta Garbo) for purposes of
contracting another marriage. Glaringly, both the first and second requisite has been
complied with.

In so far as the third requisite is concerned, the High Court2 has laid down some
criteria in establishing compliance with the requisite that the present spouse must have “
well-founded belief that the absentee is dead ” as required by Article 41 of the Family
Code as follows:

The belief of the present spouse must be the result of proper and
honest to goodness inquiries and efforts to ascertain the whereabouts of
the absent spouse and whether the absent spouse is still alive or is already
dead. Whether or not the spouse present acted on a well-founded belief of
death of the absent spouse depends upon the inquiries to be drawn from a
great many circumstances occurring before and after the disappearance of
the absent spouse and the nature and extent of the inquiries made by
present spouse.

The petitioner should believe in good faith that the absentee is presumably dead.
Such good faith is established by the diligent efforts exerted by the petitioner in
ascertaining the whereabouts of the absentee spouse. Here, Greta Garbo went to the place
of Al Pacino’s parents to inquire the latter’s whereabouts but such effort proved futile. In
fact, she waited for the latter for more than five years in high hopes that Al Pacino would
return back home. But still no Al Pacino showed. For purposes of filing a petition for the
declaration of Al Pacino’s presumptive death, it would be proper for Greta to have this
matter recorded with the Police Station of the absentee spouse last known address. She
may as well ask for the assistance of different government authorities in searching for his

1
Republic vs. Cantor, G.R. No. 184621, December 10, 2013 citing Republic v. Nolasco, G.R. No. 94053,
March 17, 1993, 220 SCRA 20, 22-26
2
Republic v. Granada, G.R. No. 187512, June 13, 2012 citing Republic v. CA and Alegro
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absentee husband. In the like manner, Greta may even have the fact of his husband’s
disappearance be broadcasted and/or published if only for purposes of proving to the
court her diligent efforts to locate Al Pacino. These efforts are resorted considering the
stringent rule on establishing the well-founded belief of the present spouse for purposes
of availing the remedy granted by Article 41 of the Family Code.

The mere absence of the spouse (even for such period required by law), lack of
any news that such absentee is still alive, failure to communicate or general presumption
of absence under the Civil Code will not suffice. This conclusion proceeds from the
premises that Article 41 of the Family Code places upon the present spouse the burden of
proving the additional and more stringent requirement of “well-founded belief ” which
can only be discharged upon a showing of proper and honest to goodness inquiries and
efforts to ascertain not only the absent spouse’s whereabouts but, more importantly, that
the absent spouse is still alive or is already dead.3

Finally, the Family Code clearly provides that a court declaration of presumptive
death of a spouse is indispensable before the other/present 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. After establishing the
diligent efforts exerted by the present spouse, a summary proceeding for the declaration
of the absentee spouses as presumptively dead should be filed with the proper court. The
preparation and filing of this petition should you desire will be facilitated by the
undersigned counsel.

IV. RECOMMENDATION/S

Pursuant to Article 41 of the Family Code of the Philippines, Greta Garbo can
validly and legally remarry after proper compliance with the requirements set forth by
law. There is a need to institute a summary of proceedings for the declaration of
presumptive death of the absentee – Al Pacino. However, this judicial remedy is without
prejudice to the subsequent reappearance and filing of an affidavit of reappearance of Al
Pacino.

BHELL G. MENDIOLA
Law -1A

3
Republic v. CA (Tenth Division), 513 Phil. 391, 397-398(2005)
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