memorandum & legal opinion - ex. #2

7/27/2019 Memorandum & Legal Opinion - Ex. #2

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October 9, 2014

Mr. AA306 San Sebastian St.,Recto Avenue, Manila

Dear Sir:

Here is the opinion you requested. The facts gathered from you are as follows:

You mentioned that you married Ms. BB sometime in 1990. In 1995, Ms. BB and acouple of her friends went vacationing in India. She never returned. After a few weeksof waiting, you visited India and used your hard-earned wealth to find traces of whereyour wife could have gone. The trail, at first vibrant, turned gray and went cold.Distraught, you returned to Manila in 1997. In 2003, on your wedding anniversary, you

decided that your wedding with Ms. BB was a dim chapter of your life that you shouldclose and you considered possible remarriage.

The issues here are clear: it is whether or not you can remarry after your wife has beenmissing for 8 years? If yes, what are the requirements? And if your wife is alive andappears after you have complied with requirements, can she file actions to seize,encumber, or otherwise affect the conjugal property of your union?

On the first and second question, you can remarry provided that you will institute asummary proceeding for the declaration of presumptive death of the absent or missing

spouse in accordance with Article 41 of the family code which states that:

Art. 41. A marriage contracted by any person duringsubsistence of a previous marriage shall be null and void, unlessbefore the celebration of the subsequent marriage, the prior spousehad been absent for four consecutive years and the spouse presenthas a well-founded belief that the absent spouse was already dead.In case of disappearance where there is danger of death under thecircumstances set forth in the provisions of Article 391 of the CivilCode, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriageunder the preceding paragraph the spouse present must institute asummary proceeding as provided in this Code for the declaration ofpresumptive death of the absentee, without prejudice to the effect ofreappearance of the absent spouse. (83a)

In your case, the wife has been absent for 8 years and nothing about her whereabouts isknown. Because of her absence, a presumption that she is already dead can be madebased on Article 41 of the Family Code and in relation with articles 390 and 391 of theNew Civil Code which state that:

Art. 390

. After an absence of seven years, it being unknownwhether or not the absentee still lives, he shall be presumed dead for allpurposes, except for those of succession. xxx xxx xxx

xxx xxx xxx


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Art. 391. The following shall be presumed dead for all purposes,including the division of the estate among the heirs.

xxx xxx xxx

(3) A person who has been in danger of death under othercircumstances and his existence has not been known for fouryears

With regards to the third question, Article 392 of the New Civil Code and Rule 73 Sec. 4of the rules of court provide that:

Art. 392. If the absentee appears, or without appearing hisexistence is proved, he shall recover his property in the condition in whichit may be found, and the price of any property that may have beenalienated or the property acquired therewith; but he cannot claim eitherfruits or rents.

Rule 73

xxx xxx xxx

Sec. 4. Presumption of Death. For purposes of settlement of hisestate, a person shall be presumed dead if absent and unheard from for theperiods of fixed in the Civil Code. But if such person proves to be alive, heshall be entitled to the balance of his estate after payment of all his debts.

The balance may be recovered by motion in the same proceed ing.

According to the provisions cited, if Ms. BB is alive and appears after you havecomplied with requirements, she can file actions to seize, encumber, or otherwise affectthe conjugal property of your union.

In conclusion with the discussions above, Mr. AA can remarry since Ms. BB, hiswife has been missing for 8 years provided he will institute a summary proceeding forthe declaration of presumptive death of his wife in accordance with Article 41 of theFamily Code and in relation to Article 390 and 391 of the New Civil Code. If ever his

wife is still alive and appears after he have complied with requirements, his wife canfile actions to seize, encumber, or otherwise affect the conjugal property of their unionin accordance with the article 392 of the New Civil Code and Section 4 of Rule 73 of theRules of Court.

Very truly yours,

(Atty.) Roven Arellano


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MEMORANDUM

TO: Mr. AAFROM: (Atty.) Roven ArellanoRE: Declaration of Presumptive Death

DATE: October 9, 2014

QUESTION PRESENTED

Whether or not Mr. AA can remarry after Ms. BB, his wife, has been missing for 8years? If yes, what are the requirements? And if his wife is alive and appears after hehave complied with requirements, can his wife file actions to seize, encumber, orotherwise affect the conjugal property of their union?

ANSWER

Mr. AA can remarry after his wife has been missing for 8 years provided he willinstitute a summary proceeding for the declaration of presumptive death of his wife. Ifever his wife is still alive and appears after he have complied with requirements, hiswife can file actions to seize, encumber, or otherwise affect the conjugal property oftheir union.

FACTS

Mr. AA married Ms. BB sometime in 1990. In 1995, Ms. BB and a couple of herfriends went vacationing in India. She never returned. After a few weeks of waiting, Mr.AA visited India and used his hard-earned wealth to find traces of where his wife couldhave gone. The trail, at first vibrant, turned gray and went cold. Distraught, he returnedto Manila in 1997. In 2003, on their wedding anniversary, he decided that his weddingwith Ms. BB was a dim chapter of his life that he should close and he consideredpossible remarriage.

DISCUSSION

On the first and second question, Mr. AA can remarry provided that he willinstitute a summary proceeding for the declaration of presumptive death of the absentor missing spouse in accordance with Article 41 of the family code which states that:

Art. 41. A marriage contracted by any person duringsubsistence of a previous marriage shall be null and void, unlessbefore the celebration of the subsequent marriage, the prior spousehad been absent for four consecutive years and the spouse presenthas 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 CivilCode, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriageunder the preceding paragraph the spouse present must institute asummary proceeding as provided in this Code for the declaration of


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presumptive death of the absentee, without prejudice to the effect ofreappearance of the absent spouse. (83a)

In the instant case, the wife has been absent for 8 years and nothing about herwhereabouts is known. Because of her absence, a presumption that she is already dead

can be made based on Article 41 of the Family Code and in relation with articles 390and 391 of the New Civil Code which state that:

Art. 390. After an absence of seven years, it being unknownwhether or not the absentee still lives, he shall be presumed dead for allpurposes, except for those of succession. xxx xxx xxx

xxx xxx xxx

Art. 391. The following shall be presumed dead for all purposes,

including the division of the estate among the heirs.

xxx xxx xxx

(3) A person who has been in danger of death under othercircumstances and his existence has not been known for fouryears

With regards to the third question, Article 392 of the New Civil Code and Rule 73Sec. 4 of the rules of court provide that:

Art. 392. If the absentee appears, or without appearing hisexistence is proved, he shall recover his property in the condition in whichit may be found, and the price of any property that may have beenalienated or the property acquired therewith; but he cannot claim eitherfruits or rents.

Rule 73xxx xxx xxxSec. 4. Presumption of Death. For purposes of settlement of his

estate, a person shall be presumed dead if absent and unheard from for the

periods of fixed in the Civil Code. But if such person proves to be alive, heshall be entitled to the balance of his estate after payment of all his debts.The balance may be recovered by motion in the same proceeding.

According to the provisions cited, if Ms. BB is alive and appears after Mr. AAhave complied with requirements, she can file actions to seize, encumber, or otherwiseaffect the conjugal property of their union.

CONCLUSION

Since Ms. BB, Mr. AAs wife has been missing for 8 years, Mr. AA can remarryprovided he will institute a summary proceeding for the declaration of presumptivedeath of his wife in accordance with Article 41 of the Family Code and in relation toArticle 390 and 391 of the New Civil Code. If ever his wife is still alive and appears afterhe have complied with requirements, his wife can file actions to seize, encumber, or


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otherwise affect the conjugal property of their union in accordance with the article 392of the New Civil Code and Section 4 of Rule 73 of the Rules of Court.

memorandum & legal opinion - ex. #2

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