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March 13, 2015

Mr. Crispino Tanquil


Brgy. Basak, Mandaue City
Cebu, Philippines
Dear Mr. Tanquil:
This legal opinion seeks to answer your queries as to the following:
1.
2.
3.
4.

What are the possible legal remedies in order to sever any ties you have with your wife;
What are the effects of such remedy;
What are the disadvantages and advantages of the possible remedies you can take; and
What will happen to your properties as well as the properties acquired during your
marriage

The Facts
As you have stated in your letter, the following are the pertinent facts:
On August 27, 1997, you married Maria Lopez in Mandaue City, Cebu while you were on leave
and after your marriage, you lived with your sister in Sampaloc, Manila.
In July 1994, your wife left the dwelling of your sister and informed you by letter that she had
gone to reside with her mother in, Brgy. Luz, Cebu City, and later moved to Dagupan City to
study.
As early as July 1994, you began receiving letters from your sister, Lilia Tranquil and some from
anonymous writers, about the alleged acts of infidelity done by your wife. This prompted you to
leave your work to confront your wife.
In December, 1994, you went to Cebu City and looked for your wife then stayed and lived for 2
nights and 1 day as husband and wife as if nothing happened. One day, you tried to verify from
your wife the truth of the information you received but instead of answering, your wife packed up
and left, which you took as a confirmation of the acts of infidelity imputed on her.
The Applicable Law
To answer your first query as to the possible legal remedies available, the applicable law is
Article 55. Title II of the Family Code on the grounds of Sexual infidelity or perversion and
Abandonment of petitioner by respondent by without justifiable cause for more than one year.
For the first ground, the law made it clear that acts of sexual infidelity short of adultery and
concubinage are enough so long as the said acts committed by one spouse would constitute a
clear betrayal of trust of his or her spouse by having intimate love affairs with other persons.

As to sexual perversion, this would include engaging in such behavior not only with third
persons but also with the spouse.
On the ground of abandonment, it must appear to be willful. Mere severance of the relation is
not sufficient. It must be an abandonment without justifiable cause and must be for more than
one year to warrant a decree of legal separation.
Take note that it will not be granted, however, as against a spouse who became insane after the
initial act of desertion or abandonment, but before the statutory period had expired. The general
rule being that, in computing such period, the time during which the offending spouse has been
insane cannot be included.
Also applicable is Article 101 of the Family Code:
Article 101. If a spouse without just cause abandons the other or fails to comply
with his or her obligations to the family, the aggrieved spouse may petition the
court for receivership, for judicial separation of property or authority to be the
sole administrator of the absolute community, subject to such precautionary
conditions as the court may impose.
xxx
A spouse is deemed to have abandoned the other when he or she has left the
conjugal dwelling without intention of returning. The spouse who has left the
conjugal dwelling for a period of three months or has failed within the same
period to give any information as to his or her whereabouts shall be prima facie
presumed to have no intention of returning to the conjugal dwelling.
On its face, the forgoing provisions do not appear to directly govern your situation.
Basing from the facts you have stated in your letter, acts of infidelity done by your wife were
merely allegations from your sister and other concerned writers. There is no clear evidence
that your wife committed such acts which would constitute a clear betrayal of trust.
Another, on the part of abandonment, it does not appear to be willful. Your wife, while you were
working abroad, informed you of her whereabouts and the reason why she left. In fact, you
easily found her when you went to Cebu and without hesitations, your wife stayed with you in
your cousins house.
The second time she left without telling you the reason why and where she will go, you may
have filed an action for legal separation after one year of the abandonment of your wife without
any justifiable cause.
However, Article 56 paragraph 6 of the Family Code provides that An action for legal
separation shall be filed within five years from the time of the occurrence of the cause.
After the lapse of the five-year period, the legal separation case cannot be filed.
Considering the fact that your wife has left your conjugal dwelling place from December 1994
until present (or about 20 years), without any forms of communication or information within that
span of time, you cannot anymore file for legal separation because the five-year period has
already lapsed.

Possible Legal Remedy:


Legal separation however, is not your only option to sever the ties you have with your wife.
Article 41 of the Family Code would be your possible legal remedy.
Article 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 consecutive
years and the spouse present had a well-founded belief that the absent spouse
was already dead. x x x
For the purposes of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided
for in this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
As a general rule, no judicial declaration of presumptive death is required as such presumption
arises from law (In Re Szatrow, 81 Phil. 461). Articles 390 and 391 of the Civil Code provided
that after an absence of seven years, it being unknown to whether or not the absentee still lives,
he or she shall be presumed dead for all purposes except for succession.
The Effects or the Disadvantages and Advantages of Such Remedy:
The effect of such remedy is that you will be capacitated to remarry without prejudice to your
previous marriage. The disadvantage however is that, in case of reappearance of your previous
spouse, the subsequent marriage will automatically be terminated if there is an affidavit filed of
such reappearance by any interested person and it being recorded in the civil registry of your
residence, UNLESS there is a judgment annulling your previous marriage or declaring it void ab
initio. (Article 42 of the Family Code)
On the positive side, if the reappearing spouse or any interested party does not file any sworn
statement of reappearance, the subsequent marriage remains validly subsisting while youre
first marriage is likewise considered subsisting as not having been judicially nullified or annulled.
However, as between the two marriages, the law or the state shall continue to protect the
second marriage rather than the first.
However, if your first spouse would choose not to file an affidavit of reappearance, she has to
take the consequence of not entering into a contract of marriage with another person because
she is still validly married to you. If she wants to get married to another person, then she has to
file a nullity or annulment case against you IF there are valid grounds to do so.
You also have to consider that before you can validly remarry, you have to comply first with the
requirements set forth under Articles 52 and 53 of the Family Code.
Article 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses, and the delivery of the
childrens presumptive legitimes shall be recorded in the appropriate civil registry
and registries of property; otherwise, the same shall not effect third persons.

Article 53. Either of the former spouses may marry again after complying with the
requirements of the immediately preceding Article; otherwise, the subsequent
marriage shall be null and void.
With Regards to Properties:
After the issuance of the judicial declaration of presumptive death, the properties of your
first marriage should be liquidated in accordance with the ordinary rules of co-ownership.
If there were a pre-nuptial agreement providing the separation of property regime
governing the marriage, then there is no need for liquidation or partition.
It must be pointed out that the observance and non-observance of the requirements of
liquidation, partition, distribution and the delivery of the presumptive legitimes is cruelly
material in determining whether or not the subsequent marriage is void only if the
previous marriage has been judicially nullified or annulled in accordance with law.
Articles 103 and 130 of the Family Code provide that if a surviving spouse
subsequently remarries without liquidating the community of conjugal properties of the
first marriage, the mandatory regime of complete separation of property shall govern the
property relations of the subsequent marriage. However, if there were liquidation, you
may agree in the settlement as to what type of property regime will govern your marital
relationship and, in the absence of such marriage settlement or when the latter is void,
your properties shall be governed by the absolute community of property regime.
Analysis and Conclusion
Thus, taking into consideration the legislative intent and applying the rule of reason,
Article 41 of the Family Code would be your best friend in order to sever the ties you
have with your wife who left hanging and thinking of her whereabouts. However, you
take into consideration the consequences and the requirements that you have comply to
successfully complete the process.
I am confident that said interpretation would prevail in court because to rule otherwise
would be absurd and injustice on your part.
Recommendation
It is best that before you contract a second or subsequent marriage, you already legally
dissolved your first marriage or your absent spouse has been declared presumptively
dead by means of a judgment rendered in the proper proceeding because Article 349 of
the Revised Penal Code imposes a punishment of prision mayor in violation of such
order.
I appreciate the opportunity to advise you regarding this matter. Please let me know if
you wish to discuss any of these issues further. Thank you.
Sincerely yours,
(Sgd.) _________________