The proper remedy for a judicial declaration of presumptive death obtained by extrinsic fraud is an action to annul the judgment. An affidavit of reappearance is not the proper remedy when the person declared presumptively dead has never been absent.
This is a petition for review on certiorari filed by Celerina J. Santos, assailing the Court of Appeals' resolutions dated November 28, 2008 and March 5, 2009. The Court of Appeals dismissed the petition for the annulment of the trial court's judgment declaring her presumptively dead.
On July 27, 2007, the Regional Trial Court of Tarlac City declared petitioner Celerina J. Santos (Celerina) presumptively dead after her husband, respondent Ricardo T. Santos (Ricardo), had filed a petition for declaration of absence or presumptive death for the purpose of remarriage on June 15, 2007.1
Ricardo remarried on September 17, 2008.2chanrobleslaw
In his petition for declaration of absence or presumptive death, Ricardo alleged that he and Celerina rented an apartment somewhere in San Juan, Metro Manila; after they had gotten married on June 18, 1980.3
After a year, they moved to Tarlac City. They were engaged in the buy and sell business.4chanrobleslaw
Ricardo claimed that their business did not prosper.5
As a result, Celerina convinced him to allow her to work as a domestic helper in Hong Kong.6
Ricardo initially refused but because of Celerina's insistence, he allowed her to work abroad.7
She allegedly applied in an employment agency in Ermita, Manila, in February 1995. She left Tarlac two months after and was never heard from again.8chanrobleslaw
Ricardo further alleged that he exerted efforts to locate Celerina.9
He went to Celerina's parents in Cubao, Quezon City, but they, too, did not know their daughter's whereabouts.10
He also inquired about her from other relatives and friends, but no one gave him any information.11chanrobleslaw
Ricardo claimed that it was almost 12 years from the date of his Regional Trial Court petition since Celerina left. He believed that she had passed away.12chanrobleslaw
Celerina claimed that she learned about Ricardo's petition only sometime in October 2008 when she could no longer avail the remedies of new trial, appeal, petition for relief, or other appropriate remedies.13chanrobleslaw
On November 17, 2008, Celerina filed a petition for annulment of judgment14
before the Court of Appeals on the grounds of extrinsic fraud and lack of jurisdiction. She argued that she was deprived her day in court when Ricardo, despite his knowledge of her true residence, misrepresented to the court that she was a resident of Tarlac City.15
According to Celerina, her true residence was in Neptune Extension, Congressional Avenue, Quezon City.16
This residence had been her and Ricardo's conjugal dwelling since 1989 until Ricardo left in May 2008.17
As a result of Ricardo's misrepresentation, she was deprived of any notice of and opportunity to oppose the petition declaring her presumptively dead.18chanrobleslaw
Celerina claimed that she never resided in Tarlac. She also never left and worked as a domestic helper abroad.20
Neither did she go to an employment agency in February 1995.21
She also claimed that it was not true that she had been absent for 12 years. Ricardo was aware that she never left their conjugal dwelling in Quezon City.22
It was he who left the conjugal dwelling in May 2008 to cohabit with another woman.23
Celerina referred to a joint affidavit executed by their children to support her contention that Ricardo made false allegations in his petition.24chanrobleslaw
Celerina also argued that the court did not acquire jurisdiction over Ricardo's petition because it had never been published in a newspaper.25
She added that the Office of the Solicitor General and the Provincial Prosecutor's Office were not furnished copies of Ricardo's petition.26chanrobleslaw
The Court of Appeals issued the resolution dated November 28, 2008, dismissing Celerina's petition for annulment of judgment for being a wrong mode of remedy.27
According to the Court of Appeals, the proper remedy was to file a sworn statement before the civil registry, declaring her reappearance in accordance with Article 42 of the Family Code.28chanrobleslaw
Celerina filed a motion for reconsideration of the Court of Appeals' resolution dated November 28, 2008.29
The Court of Appeals denied the motion for reconsideration in the resolution dated March 5, 2009.30chanrobleslaw
Hence, this petition was filed.
The issue for resolution is whether the Court of Appeals erred in dismissing Celerina's petition for annulment of judgment for being a wrong remedy for a fraudulently obtained judgment declaring presumptive death.
Celerina argued that filing an affidavit of reappearance under Article 42 of the Family Code is appropriate only when the spouse is actually absent and the spouse seeking the declaration of presumptive death actually has a well-founded belief of the spouse's death.31
She added that it would be inappropriate to file an affidavit of reappearance if she did not disappear in the first place.32
She insisted that an action for annulment of judgment is proper when the declaration of presumptive death is obtained fraudulently.33chanrobleslaw
Celerina further argued that filing an affidavit of reappearance under Article 42 of the Family Code would not be a sufficient remedy because it would not nullify the legal effects of the judgment declaring her presumptive death.34chanrobleslaw
In Ricardo's comment,35
he argued that a petition for annulment of judgment is not the proper remedy because it cannot be availed when there are other remedies available. Celerina could always file an affidavit of reappearance to terminate the subsequent marriage. Ricardo iterated the Court of Appeals' ruling that the remedy afforded to Celerina under Article 42 of the Family Code is the appropriate remedy.
The petition is meritorious.
Annulment of judgment is the remedy when the Regional Trial Court's judgment, order, or resolution has become final, and the "remedies of new trial, appeal, petition for relief (or other appropriate remedies) are no longer available through no fault of the petitioner."36chanrobleslaw
The grounds for annulment of judgment are extrinsic fraud and lack of jurisdiction.37
This court defined extrinsic fraud in Stilianopulos v. City of Legaspi
For fraud to become a basis for annulment of judgment, it has to be extrinsic or actual. It is intrinsic when the fraudulent acts pertain to an issue involved in the original action or where the acts constituting the fraud were or could have been litigated, It is extrinsic or collateral when a litigant commits acts outside of the trial which prevents a parly from having a real contest, or from presenting all of his case, such that there is no fair submission of the controversy.39 (Emphasis supplied)
Celerina alleged in her petition for annulment of judgment that there was fraud when Ricardo deliberately made false allegations in the court with respect to her residence.40
Ricardo also falsely claimed that she was absent for 12 years. There was also no publication of the notice of hearing of Ricardo's petition in a newspaper of general circulation.41
Celerina claimed that because of these, she was deprived of notice and opportunity to oppose Ricardo's petition to declare her presumptively dead.42chanrobleslaw
Celerina alleged that all the facts supporting Ricardo's petition for declaration of presumptive death were false.43
Celerina further claimed that the court did not acquire jurisdiction because the Office of the Solicitor General and the Provincial Prosecutor's Office were not given copies of Ricardo's petition.44chanrobleslaw
These are allegations of extrinsic fraud and lack of jurisdiction. Celerina alleged in her petition with the Court of Appeals sufficient ground/s for annulment of judgment.
Celerina filed her petition for annulment of judgment45
on November 17, 2008. This was less than two years from the July 27, 2007 decision declaring her presumptively dead and about a month from her discovery of the decision in October 2008. The petition was, therefore, filed within the four-year period allowed by law in case of extrinsic fraud, and before the action is barred by laches, which is the period allowed in case of lack of jurisdiction.46chanrobleslaw
There was also no other sufficient remedy available to Celerina at the time of her discovery of the fraud perpetrated on her.
The choice of remedy is important because remedies carry with them certain admissions, presumptions, and conditions.
The Family Code provides that it is the proof of absence of a spouse for four consecutive years, coupled with a well-founded belief by the present spouse that the absent spouse is already dead, that constitutes a justification for a second marriage during the subsistence of another marriage.47chanrobleslaw
The Family Code also provides that the second marriage is in danger of being terminated by the presumptively dead spouse when he or she reappears. Thus:chanRoblesvirtualLawlibrary
Article 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. (Emphasis supplied)
In other words, the Family Code provides the presumptively dead spouse with the remedy of terminating the subsequent marriage by mere reappearance.
The filing of an affidavit of reappearance is an admission on the part of the first spouse that his or her marriage to the present spouse was terminated when he or she was declared absent or presumptively dead.
Moreover, a close reading of the entire Article 42 reveals that the termination of the subsequent marriage by reappearance is subject to several conditions: (1) the non-existence of a judgment annulling the previous marriage or declaring it void ab initio
; (2) recording in the civil registry of the residence of the parties to the subsequent marriage of the sworn statement of fact and circumstances of reappearance; (3) due notice to the spouses of the subsequent marriage of the fact of reappearance; and (4) the fact of reappearance must either be undisputed or judicially determined.
The existence of these conditions means that reappearance does not always immediately cause the subsequent marriage's termination. Reappearance of the absent or presumptively dead spouse will cause the termination of the subsequent marriage only when all the conditions enumerated in the Family Code are present.
Hence, the subsequent marriage may still subsist despite the absent or presumptively dead spouse's reappearance (1) if the first marriage has already been annulled or has been declared a nullity; (2) if the sworn statement of the reappearance is not recorded in the civil registry of the subsequent spouses' residence; (3) if there is no notice to the subsequent spouses; or (4) if the fact of reappearance is disputed in the proper courts of law, and no judgment is yet rendered confirming, such fact of reappearance.
When subsequent marriages are contracted after a judicial declaration of presumptive death, a presumption arises that the first spouse is already dead and that the second marriage is legal. This presumption should prevail over the continuance of the marital relations with the first spouse.48
The second marriage, as with all marriages, is presumed valid.49
The burden of proof to show that the first marriage was not properly dissolved rests on the person assailing the validity of the second marriage.50chanrobleslaw
This court recognized the conditional nature of reappearance as a cause for terminating the subsequent marriage in Social Security System v. Vda. de Bailon
This court noted52
that mere reappearance will not terminate the subsequent marriage even if the parties to the subsequent marriage were notified if there was "no step . . . taken to terminate the subsequent marriage, either by [filing an] affidavit [of reappearance] or by court action[.]"53
"Since the second marriage has been contracted because of a presumption that the former spouse is dead, such presumption continues inspite of the spouse's physical reappearance, and by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is terminated as provided by law.
The choice of the proper remedy is also important for purposes of determining the status of the second marriage and the liabilities of the spouse who, in bad faith, claimed that the other spouse was absent.
A second marriage is bigamous while the first subsists. However, a bigamous subsequent marriage may be considered valid when the following are present:chanRoblesvirtualLawlibrary
The prior spouse had been absent for four consecutive years;
The spouse present has a well-founded belief that the absent spouse was already dead;
There must be a summary proceeding for the declaration of presumptive death of the absent spouse; and
There is a court declaration of presumptive death of the absent spouse.55
A subsequent marriage contracted in bad faith, even if it was contracted after a court declaration of presumptive death, lacks the requirement of a well-founded belief56
that the spouse is already dead. The first marriage will not be considered as. validly terminated. Marriages contracted prior to the valid termination of a subsisting marriage are generally considered bigamous and void.57
Only a subsequent marriage contracted in good faith is protected by law.
Therefore, the party who contracted the subsequent marriage in bad faith is also not immune from an action to declare his subsequent marriage void for being bigamous. The prohibition against marriage during the subsistence of another marriage still applies.58chanrobleslaw
If, as Celerina contends, Ricardo was in bad faith when he filed his petition to declare her presumptively dead and when he contracted the subsequent marriage, such marriage would be considered void for being bigamous under Article 35(4) of the Family Code. This is because the circumstances lack the element of "well-founded belief under Article 41 of the Family Code, which is essential for the exception to the rule against bigamous marriages to apply.59chanrobleslaw
The provision on reappearance in the Family Code as a remedy to effect the termination of the subsequent marriage does not preclude the spouse who was declared presumptively dead from availing other remedies existing in law. This court had, in fact, recognized that a subsequent marriage may also be terminated by filing "an action in court to prove the reappearance of the absentee and obtain a declaration of dissolution or termination of the subsequent marriage."60chanrobleslaw
Celerina does not admit to have been absent. She also seeks not merely the termination of the subsequent marriage but also the nullification of its effects. She contends that 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.
Celerina is correct. 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 spouse[s] in such marriage will be the same as in valid marriages."61
If it is terminated by mere reappearance, the children of the subsequent marriage conceived before the termination shall still be considered legitimate.62
Moreover, a judgment declaring presumptive death is a defense against prosecution for bigamy.63chanrobleslaw
It is true that in most cases, an action to declare the nullity of the subsequent marriage may nullify the effects of the subsequent marriage, specifically, in relation to the status of children and the prospect of prosecuting a respondent for bigamy.
However, "a Petition for Declaration of Absolute Nullity of Void Marriages may be filed solely by the husband or wife."64
This means that even if Celerina is a real party in interest who stands to be benefited or injured by the outcome of an action to nullify the second marriage,65
this remedy is not available to her.
Therefore, for the purpose of not only terminating the subsequent marriage but also of nullifying the effects of the declaration of presumptive death and the subsequent marriage, mere filing of an affidavit of reappearance would not suffice. Celerina's choice to file an action for annulment of judgment will, therefore, lie.WHEREFORE
, the case is REMANDED
to the Court of Appeals for determination of the existence of extrinsic fraud, grounds for nullity/annulment of the first marriage, and the merits of the petition.SO ORDERED.cralawlawlibraryCarpio, (Chairperson), Del Castillo, Mendoza
, and Perlas-Bernabe,* JJ.
* Designated acting member per Special Order No. 1829 dated October 8, 2014.
1Rollo, pp. 23, 27-29, 35-36.
2 Id. at 62.
3 Id. at 27.
9 Id. at 28.
10 Id. at 27-28.
11 Id. at 28.
13 Id. at 18.
14 Id. at 37-45.
15 Id. at 40.
16 Id. at 40, 42.
18 Id. at 40-41.
19 Id. at 42.
22 Id. at 43.
25 Id. at 41.
27 Id. at 23.
28 Id. at 23-24.
29 Id. at 25.
31 Id. at 16.
34 Id. at 16-17.
35 Id. at 57-67.
36 RULES OF COURT, Rule 47, Sec. 1.
37 RULES OF COURT, Rule 47, Sec. 2.
38Stilianopulos v. City of Legaspi, 374 Phil. 879 (1999) [Per J. Panganiban, Third Division].
39 Id. at 890.
40Rollo, pp. 39^0.
41 Id. at 39.
42 Id. at 40-41.
43 Id. at 41-43.
44 Id. at 41.
45 Id. at 37-45.
46 RULES OF COURT, Rule 47, Sec. 3.
47 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.
48See also A. TOLENTINO, CIVIL CODE OF THE PHILIPPINES: COMMENTARIES AND JURISPRUDENCE, vol. 1, 282 (2004).
51 520 Phil. 249 (2006) [Per J. Carpio Morales, Third Division].
52 The applicable law in Social Security System v. Vda. de Bailon was the Civil Code, although there was a short discussion on the relevant Family Code provisions.
53 Id. at 264.
54 Id., citing A. TOLENTINO, CIVIL CODE OF THE PHILIPPINES: COMMENTARIES AND JURISPRUDENCE, vol. 1, 285-286 (1999); See also A. TOLENTINO, CIVIL CODE OF THE PHILIPPINES: COMMENTARIES AND JURISPRUDENCE, vol. 1, 285-286 (2004).
55 Family CODE, art. 41. (A declaration of presumptive death must be based on good faith and on a well-founded belief that the absent spouse is already dead.)
56 FAMILY CODE, art. 41.
57 FAMILY CODE, art. 41.
58 FAMILY CODE, Art. 35(4) and 41; Rev. Pen. Code, art. 349.
59 See A. TOLENTINO, CIVIL CODE OF THE PHILIPPINES: COMMENTARIES AND JURISPRUDENCE, vol. 1, 283 (2004).
60 520 Phil. 249, 264 (2006) [Per J. Carpio Morales, Third Division], citing A. TOLENTINO, CIVIL CODE OF THE PHILIPPINES: COMMENTARIES AND JURISPRUDENCE, vol. 1, 282 (1999); See also A. TOLENTINO, CIVIL CODE OF THE PHILIPPINES: COMMENTARIES AND JURISPRUDENCE vol. 1, 284 (2004).
61 A. TOLENTINO, CIVIL CODE: OF THE PHILIPPINES: COMMENTARIES AND JURISPRUDENCE, vol. 1, 284 (2004).
62 FAMILY CODE, art. 43
The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:chanroblesvirtuallawlibrary
(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate, and their custody and support in case of dispute shall be decided by the court in a proper proceeding. . .
63Manuel v. People, 512 Phil. 818, 833-835, 836-837 (2005) (Per J. Callejo, Sr., Second Division].
64See A.M. No. 02-11-10-SC (March 4, 2003)
RE: PROPOSED RULE ON DECLARATION OF ABSOLUTE NULLITY OF VOID MARRIAGES AND ANNULMENT OF VOIDABLE MARRIAGES
. . . .
Section 2. Petition for declaration of absolute nullity of void marriages.
(a) Who may file. - A petition for declaration of absolute nullity of void marriage may be filed solely by the husband or the wife, (n)
. . . .
See also Ablaza v. Republic, G.R. No. 158298, August 11, 2010, 628 SCRA 27, 34 [Per J. Bersamin, Third Division] wherein this court explained that:
A.M. No. 02-11-10-SC extends only to marriages covered by the Family Code, which took effect on August 3, 1988, but, being a procedural rule that is prospective in application, is confined only to proceedings commenced after March 15, 2003. (Emphasis in the original)The subsequent marriage in this case took place in 2008.
65 (In Amor-Catalan v. Court of Appeals, 543 Phil. 568, 577 (2007) [Per J. Ynares-Santiago, Third Division], this court ruled that a real party in interest may file an action to nullify a marriage.)