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presumptive death

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1 presumptive death on Wed May 25, 2016 2:44 am

roja


Arresto Menor
Hi,

I am hoping for some guidance regarding my case.
I am married with my first wife, 2 years after our marriage she gave birth to our daughter, 3 months after she left us and went to the US.
I assume that she is a US citizen as her entire family is.
We've never heard from her for the past 15 years.
5 years ago I got married without filing a presumptive death case.
Will my second marriage by null and void?

Please advise.

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2 Bigamous = void ab initio on Wed May 25, 2016 10:12 am

loueli2013


Arresto Menor
Hi. Not yet a lawyer but I am confident in my answer. Sorry to say that the second marriage is void for being bigamous. The law says, contracting a subsequent marriage while first marriage is subsisting is bigamous. On presumptive death - there is need for JUDICIAL DECREE of presumptive death before ka magpakasal. In fact even if kumuha ka ng decree, if si first wife will appear the second marriage is automatically dissolved.

Legal consequences:
1. your second marriage is bigamous (void)
2. your first marriage subsists (you are still marriage to her)
3. you can be prosecuted for bigamy (you can be put to jail)

The circumstances surrounding such as she left you or abandon you and your child will not help you. Sana, before you marry again, you went to court and asked your marriage declared void ab initio or have it annulled (2 different things).

Anyway, the best thing you can do now is see a lawyer. Make it right with your first wife, get an annulment or whatever suits your case. You can marry your second wife again. Pero make clean with your first wife muna.

God Bless you.

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3 Re: presumptive death on Wed May 25, 2016 4:43 pm

Steh


Arresto Menor
as i mentioned in your other post, how come you were able to re-marry? CENOMAR is a requirement to obtain marriage license, it must indicate that you are married. well, that is if your 1st marriage is a legal in the 1st place.

i agree with Loueli2013

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4 Re: presumptive death on Wed May 25, 2016 8:15 pm

roja


Arresto Menor
Hi,

Thank you for the response.

We are currently waiting for the progress of the filed case for 15 years of abandonment of our 15 year old daughter with my first wife and after that will proceed with the presumptive death.

I have no contact at all with my 1st wife as they are all american citizens now. I have never heard anything from her for the past 15 years. I could not find her on FB or any other social medias. I would assume she has her own family now and has forgotten about me and her first child.

For my second wife, will it automatically be null and void?no further actions needed? We were married by the judge since we had a 6 yo daughter and for some reasons he did not request for any CENOMAR.

We are hoping if all gets well I could have things in order.

Thank you in advance and God Speed.

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5 Re: presumptive death on Wed May 25, 2016 10:24 pm

loueli2013


Arresto Menor
Hi. A disclaimer: I would like to reiterate that I am not "yet" a lawyer.

Like I have said, since there was no annulment, nor declaration of nullity of your first marriage, then the legal consequence is that your second marriage is void. Even if you were married by a judge. No doubt about that.

Is there a legal cure regarding your second marriage? No. You cannot cure something that is void in the first place.

Your claim re: presumptive death of your first wife is a matter of proof. You have to establish in court that you have no whereabouts or whatsoever. This is a matter of evidence. It is not what you can claim (re: presumptive death) but what you can prove.

Now, is it a good thing to ask for a decree of presumptive death for you to remarry? I think it is a matter that your lawyer can best advise. Personally, it is quite a waste to seek judicial decree of presumptive death while the Family Code provides that your first spouse can reappear ANYTIME  and your subsequent (this time the third - because you have to remarry the second spouse) marriage will be dissolved.

And, I will stick with my first stand. Make it right with your first spouse. I mean, make a diligent effort in finding her. I was also wondering about the abandonment thing. Your facts are quite conflicting. You cannot sue someone for abandonment then ask the court to declare her presumed dead.

Anyway, I hope you can find the answer that you were looking for. I end my comment here. God Bless you.

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6 Re: presumptive death on Thu May 26, 2016 3:47 pm

Steh


Arresto Menor
well, i myself have filed have an approved presumptive death to my absentee spouse since 2004, have not remarried so i know the process very well.

just my personal opinion. Stand by your 2nd wife, though null and void in the 1st place. with or without a presumptive death, if the 1st wife reappear, your 2nd marriage will be dissolved. the advantage of having a presumptive death on hand is, if she reappear, she will have to appear in court too, to claim her legal rights as your spouse, she has to reverse the court decision, it has to undergo legal process too. Depending on her reason why she did not communicate with you for years, MAY be used against her.

My lawyer told me few reasons my absentee spouse can get away a case filed against him are like he had amnesia,  he was held hostage, he was in a comatose, he was under a spell or was stuck in an island etc.. that no means of communication to reach his family of his whereabouts.

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7 Re: presumptive death on Thu May 26, 2016 4:21 pm

loueli2013


Arresto Menor
I beg to disagree sir that you have to get the court decree reversed before your 1st wife can demand her legal standing, the law is clear:

"Art. 42 of the Family Code, 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."

Thus, a mere affidavit of reappearance is required. She need not go to court.

While it is much easier to get a Decree of Presumptive Death than to get an Annulment or Decree that the marriage is void, it is wiser to have the marriage annulled. Otherwise, the subsequent marriage will be in legally complicated situation: technically, when your first wife reappears (mere recording in a Civil Registry is required), you are still married to her.

The jest in getting a decree of presumptive death is really to protect the spouse from being prosecuted for bigamy before contracting a subsequent marriage.

But well, to each his own. Personally, I would want the first marriage annulled or declared void before I would marry again. Because, really, getting such a decree will not stop from any legal complications later on: how to deal with the properties of both marriages. And the second wife is placed in a position where she cannot even prosecute for bigamy because technically, she is not married.

Smile

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8 Re: presumptive death Today at 3:56 am

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