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21 September 2022

Suggested answer.

YES, reappearance is not a sufficient remedy since it will only terminate the subsequent marriage; but not nullify the effects of the declaration of her presumptive death and the subsequent marriage. 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.
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.
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.
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 belief 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. 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. 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 spouses in such marriage will be the same as in valid marriages."
If it is terminated by mere reappearance, -the children of the subsequent marriage conceived before the termination shall still be considered legitimate.
-Moreover, a judgment declaring presumptive death is a defense against prosecution for bigamy.
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."

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, 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.