five ways to leave your lover - part 2 ... declaration of presumptive death

the return of the living dead

not every marriage is a "they live happily ever after" affair. some unions, beds of roses, certainly are not. the shelf life of some marital relationships are too short, they should be appended with "perishable goods, do not delay"

some husbands, not the majority, i suppose, wish their wives dead because, they reason out, they are as cold as a corpse in bed anyway, only uglier. some wives have already killed their husbands in their fantasies because apparently they are as useful as a carcass when they are drunk (and as useless when they are sober.)

but for the initiated, they simply do the next best thing. they ask the court to declare their absentee spouses presumptively dead for the purpose of ahem... the proverbial second heaven, also known as marrying the post man or the meter reader or the tricycle driver or whoever is waiting in the wings.

the legal basis for the forsaken and forlorn spouse to finally stop gazing at the horizon in search of the ship carrying his long lost love can be found in Article 41 of the Family Code which provides:

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.

the above quoted paragraph provides for yet another reference to a bigamous marriage, that is, one that is contracted during the subsistence of another. while as a rule the subsisting marriage should first be annuled or declared a nullity before one can contract a second "life sentence", this law provides an exception, a different take, a novel approach.

why different you may ask. different in such a way, that the first marriage, is not declared a nullity by the court. it remains perfectly valid and without defect even after the petition is granted by the court. the first marriage however is automatically dissolved not by the fiat of the court but as a natural consequence of the death (presumptive) of one of the spouse. marriage, being "a special contract of permanent union between a man and a woman" it is axiomatic that it autoexpires when any of the contractors die, albeit presumptively, because a union requires two living and breathing individuals. no one can maintain a union by himself. it takes two, not only to tango, but to maintain a marriage.

in order to avail of this remedy however, there are certain requirements to be satisfied.

first. that the prior spouse, has been absent for four consecutive years.

the law is very clear and unambiguous in its requirement that the period of disappearance must be consecutive, meaning continuous, uninterrupted and unbroken. the law does not consider cumulative absences, otherwise half of the self-annointed lotharios in our land would have been declared dead already for their occasional disappearances while having their high noon trysts.

the four consecutive years may be shortened to two consecutive years if the absentee spouse disappeared under fhe following circumstances:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing,


(2) A person in the armed forces who has taken part in war,

(3) A person who has been in danger of death under other circumstances a

note: this abbreviated periods of four years and two years are applicable only for purposes of remarriage. for other purposes, longer periods are required. but that's another story altogether.

second. that the spouse present has a well-founded belief that the absent spouse was already dead.

the key word here is well-founded belief. many a petition of this nature has been denied because of failure to prove the well founded belief that the absent spouse was already dead. belief, being a state of mind, is subjective, difficult to concretize and still harder to describe to the court. petitioners, in order to prove this well founded belief, have invariably alleged the almost superhuman efforts they have exerted, the unceasing inquiries they have previously made, the fruitless journeys to the ends of the earth and back, the almost futile exercise of writing letters to the last known addresses of their lost loves. that radio, print and tv advertisements have also been resorted to is underscored for the appreciation of the court. suspicion, after all, is not equivalent to well founded belief.

third. a summary proceedings for the declaration of presumptive death is filed in court and it was granted.

as the law provides, the present spouse can only remarry after the court has declared the absentee spouse to be presumptively dead. otherwise, the present spouse would be committing bigamy.

fourth. that the absentee spouse does not rise from the grave and reappear

this route however is not without its pitfalls. the law cautions that the second marriage would automatically be terminated by the reappearance of the presumptively dead spouse. all he/she has to do is to file an "affidavit of reaapearance" in the local civil registry and the second marriage would be automatically terminated as provided in Article 42 which states:

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

then..... hell hath no fury like a spouse declared presumptively dead.

five ways to leave your lover - part 1. recognition of foreign divorce

The buzzword among couples whose marriage is on the rocks is ANNULMENT OF MARRIAGE. For most couples, the ANNULMENT of their marriage is the control-alt-del keys of their lives. The reboot. The reshuffling of the deck. It is likewise the proverbial bridge that they have to cross to reach the promised haven of the life anew.

In pursuance of the second heaven (yes Virginia, there is “pangalawang gloria”), so many couples have resorted to this process that it would not have been totally inappropriate for them to have included the following phrase in their marital vows:

“Till death and ....annulment do us part”

But nobody can blame some of these couples for wanting to escape their domestic purgatory. Nobody could begrudge them for quitting on saving their dying marriage, for throwing in the towel, so to speak, for stopping to care at all and for wanting to start afresh. Not me. Nor should you.

Because nobody could feel the depths of despair of the battered housewife who is being brutally abused day in and day out by the husband whose idea of exercise is to probe the breaking point of his wife's flesh. No one could approximate the gnawing pain of the cuckolded husband whose jealousy is slowly eating away at his sanity. And how can one be judgmental when it is not one’s children who is exposed to the daily spectacle of marital shouting and shoving and strangling match.

But ANNULMENT is not the one all and be all of dissolution of marriage. In fact, on paper it requires the satisfaction of the most stringent of requirements before it is granted. It likewise entails the most cost. However, there are other alternative processes with which couples could unshackle the bonds of the loveless and decaying marriage but which the common lay men are not familiar with. If the immediately preceding paragraph has hit you like a brick in the head, then read on…


FIVE WAYS TO LEAVE YOUR LOVER (with apologies to SIMON & GARFUNKEL).

1. RECOGNITION OF FOREIGN DIVORCE
2. DECLARATION OF PRESUMPTIVE DEATH OF ONE'S SPOUSE
3. LEGAL SEPARATION
4. DECLARATION OF NULLITY OF MARRIAGE
5. ANNULMENT OF MARRIAGE

This humble blogger will try to dissect the different ways of legally dissolving your unhappy and hopeless marital bondage. I'll give you the road map, you choose the preferred escape route.

1. RECOGNITION OF FOREIGN DIVORCE.

Previously, a foreign divorce was not recognized in our jurisdiction. As it was then, a foreigner husband who had successfully obtained a divorce outside of the Philippines can freely remarry his next trophy wife while the Filipino spouse is still at the mercy of our laws being married to the spouse who is no longer married to her. It was really an an unfair and questionable rule. But dura lex sed lex. (the law is harsh but it is the law)

Then came this law:

Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. (17a)

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227)

The rationale for the passage of the above quoted law is to equalize the right of the foreign spouse with that of the Filipino spouse. Now, the spurned Filipino spouse can remarry too. . All she has to do is to file a petition before the court for the recognition of the decree of divorce validly obtained abroad and pray that the court declare his or her capacity to remarry under our Philippine jurisdiction.

Earlier jurisprudence required the other spouse must be a foreigner at the time of marriage, he/she should have thereafter validly obtained a decree of divorce abroad and such decree grants him/her the right to remarry. Lately, the court has relaxed the rule and granted the same privilege even to filipino citizens who later became naturalized citizens of other countries.

Among the five alternatives, this is the easiest to prove and is almost always granted by the court. This is also the the most painless, least acrimonious and least contested process because at this stage the couple has already (or almost ) moved on with their own lives. This process is a mere formalization of the marital divide. Cost is likewise not substantial since no psychological examination is required.

Feel free to post your comments. For inquiries email me at cyberlawyer2020@yahoo.com

Next: Declaration of Presumptive Death. The Second Escape Route

caught in the act

Few people know that there is a legal way a husband or a wife could kill his/her spouse without having to be incarcerated in jail. Fewer people are aware that a parent can evade prosecution even if he kills and maims his daughter's boyfriend.

Article 247 of the Revised Penal Code involves death or physical injuries inflicted under exceptional circumstances. It provides that:

"Any legally married person who having surprised his spouse in the act of committing sexual intercourse with another person, shall kill any of them or both of them in the act or immediately thereafter, or shall inflict upon them any serious physical injury, shall suffer the penalty of destierro.

If he shall inflict upon them physical injuries of any other kind, he shall be exempt from punishment.

These rules shall be applicable, under the same circumstances, to parents with respect to their daughters under eighteen years of age, and their seducer, while the daughters are living with their parents."

Technically speaking, Article 247 instead of defining a felony endeavors to define the circumstances where a person may be exempt from the commission of a crime. Destierro is not a penalty but more of a preventive banishment so that the relatives of the dead fornicators may not exact revenge against the killer.

In the case of the offended husband/wife, the abovequoted law applies only when the following essential elements are present:

1. legally married to the spouse;

2. he/she must surprise the spouse;

3. the spouse must be surprised en flagrante delicto, meaning in the act of coitus.

4. he/she must have killed the spouse and his/her lover while they were in the act of sexual intercourse or immediately thereafter.

Of all the above elements the 3rd and 4th ones have generated the most colorful jurisprudence.

The Supreme court in one case has to resolve the issue of whether or not the husband should patiently wait for the fornicators to have coitus before he could barge in and kill them. The settled rule is that there must be actual sexual intercourse and not merely preparatory acts (foreplay). This led one justice to vociferously dissent and say:

"must the offended husband look on in the meantime and wait until the very physical act of coition takes place? This interpretation is far from being rational and certainly does violence to the reason and purpose of the law."

And in another case the high court convicted the husband of homicide because he killed his wife one day after he has caught her with another man saying "the killing was not the byproduct of the husband's rage"

for the parent however there are stricter requirements. the daughter must be under eighteen years of age, she must be living in with the parent and again if they were surprised by the parent in the act of sexual intercourse.

the lesson to be learned here.....

long foreplay may save your life.

Violence Against Women

you know what really makes my blood boil? what makes the vein in my head swell to near aneurismic proportion?

It is a husband inflicting violence upon his wife.

a wife beater in my dictionary belongs to the lowest of the species, lower than that of a cockroach or that of a maggot.

a maggot for all its slime will not feast on the carcass of his own kind but a wife beater would sometimes do upon his "love ones" things he dare not commit against his worst enemy.

there are many cockroaches er.. wife beaters near you, you just don't recognize them yet.

a wife beater sometimes takes the form of a meek lamb in front of people he is afraid of then unleash his most vicious sucker punch upon his wife when he gets home. a wife beater may be your brother who rarely raise his voice in anger in public but subjects his wife to her private hell hole at the slightest provocation. a future wife beater is your present boyfriend who whispers sweetly in your ears about his undying love for you right after he bitch- slapped you during an argument.

isn't it the height of cowardice to raise your hand upon a defenseless and hapless invdividual. isn't it a sign of moral depravity to strike the woman who bore and care for your children. isn't it subhuman to spew unprintable curses and spit venom to someone who share your bed.

what one must do when you are sleeping with the enemy? what one must do when your tormentor is also your love one.

there is however hope. brought by the enactment of Republic Act No. 9262, known as the ''Anti-Violence Against Women and their Children Act of 2004,''

This new law defines violence against women as any act or series of acts committed against wives, former wives, or women in any form of intimate relationship with the perpetrator, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse. It considers these acts of violence a public offense, and provides for protective measures and other necessary relief for the survivor victims. The Republic Act also recognizes ''battered woman syndrome'' as a defense, and those found to be suffering from it do not incur any civil and criminal liability, notwithstanding the absence of any of the elements for justifying circumstances of self-defense.

women: note to self: be not afraid

the law in us

I must confess I almost dropped out of law school during my first two weeks. I remember our professor assigned to us 50 articles to read and I wanted to memorize them, but I couldn't. In frustration, I even asked my wife to tell me to drop out so that I'd have some excuse, but fortunately she refused, saying that I and no one else, should make that decision.

I then accepted the fact that i would just be one of the many casualties of the hell hole called law school, one of those whose dreams of becoming litigators were snuffed out by the cruel, tyrannical and almost sadistic way professors treat freshmen.

This attitude however changed when I made my first recitation. I did not quote Manresa, I did not recite the law verbatim, I couldn't even remember the number of the article I was then reciting. I just answered as a layman, no fuss nor frills but straight from the heart of what I thought the law means and my professor seemed to be satisfied. In fact more than satisfied, as I espied a tiny hint of a smile in his otherwise stern visage.

Then it dawned on me.

The law it seems cannot only be found in textbooks, nor in the library.
It can not only be found in the august halls of congress nor exclusively in the hallowed corridors of the courts.
The law has been and will always be found in our hearts.

Ang batas ay nasa ating puso.
The law is in our values, in our mannerisms and in our experiences.
We are the living embodiment of the law... its personification.... its concrete manifestation.

From the very first moment I was told by my parents to return whatever things i found to its rightful owner, i was taught the principles of solutio indebiti, accion in rem versoand unjust enrichment.

Ang paguwi sa tamang oras or else mapapagalitan ako introduced me to the harshness of martial law and the jurisdictional character of the reglementary periods.

When i was told not to answer back while my father is speaking, I experienced for the first time that freedom of expression can sometimes be curtailed.

Failure to call home when i have to stay overnight in a friend's place means an instant lesson in criminal law and its attendant punishment.

When i run to my mother while my father is chasing me with a belt, that is remedial law at work, although my father almost always apply for execution pending appeal and succeeds in hitting my butt while my mother is deliberating whether or not to grant temporary injunction.

These experiences and the values that my parents taught me guided me through the perilous waters of law school. That when in doubt, I just need to recall the good manners and right conduct that I learned in kindergarten, the ten commandments that I've read in the bible and the golden rule that i should not do unto others what i wouldn't want others do unto me. These have served me well in law school. Come to think of it, these has served me well in life too. I hope these might serve you well too.

They say our batch should be called the golden batch because we were supposed to usher in a golden era of excellence and greatness. I say we should be called the survivor batch. A gritty and hardy bunch who survived the usual massacre inflicted upon the graduating class. From about two hundred hopefuls, only half of those are in here today. We are therfore very privileged and honored, and it is only fitting that we should strive to be worthy of this honor. If we can survive fourth year then we could survive the Bar. If others can pass, all of us here can do the same and.. do even better. Our imagination is our only limit. Nobody and absolutely nobody can make us feel inferior without our consent.

xxxxx