Interim Decision #1719
MATTER OF GERACE
In Visa Petition Proceedings
A-14083609
Decided by Board March, 20, 1967
Since beneficiary's marriage to petitioner, a united States citizen, vn April 5,
1966, in the Philippines, which marriage was entered into by beneficiary in
the belief that her spouse by a previous undissolved marriage was deceased,
having been unheard of for 6 years, is a valid marriage until annulled (article
83(2), Philippine Civil Code), a visa petition is approved to accord beneficiary
immediate relative status.
ON BERALIP or PaLzatomm: Emigdio P. Bolus, Esquire
237 Henson Street
Angeles City, Philippines
(Brief filed)
The case comes forward on appeal from the order of the District
Director; Philippine District, dated November 9, 1966 denying the
visa petition for the reason that the petitioner has not established that
his marriage to the beneficiary is a valid marriage and that her previous marriage to Rodrigo Pontas at Bato, Biliran, Leyte on December 2, 1959 has not been terminated; although article 83 of the Civil
Code of the Philippines creates a presumption of death of a spouse
who has been absent for seven years and whose whereabouts are
unknown to the remaining spouse, official records establish that seven
years had not elapsed since the date of her marriage nor the alleged
date of the disappearance of her first husband.
The petitioner, a native-born citizen of the United States, 22 years
old, seeks immediate relative status on behalf of the beneficiary as
his wife. The beneficiary is a native and citizen of the Philippines,
born December 13, 1943. The parties were married at Angeles City,
Philippines on April 5, 1966.
In connection with the appeal, counsel has filed a brief in which he
sets forth that before her 16th birthday the beneficiary was abducted
by Rodrigo Pontas and the parents of the beneficiary filed a criminal
case against him for abduction and rape. Through the interference of
influential men, a settlement was made wherein Rodrigo Pontas must
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Interim Decision #1719.
marry the beneficiary provided the criminal case were set aside, the
parents gave their consent and, they were married on Deceniber 2,1959•
at Biliran, Leyte, Philippines. Four months after the marriage Rodrigo Pontas disappeared. A period of more than six years has passed
without news of the whereabouts of Rodrigo Pontas and believing him
to be dead, the beneficiary married the petitioner, after executing an
affidavit in good faith. A child was born to the couple on October 6,,
1966 at Angeles City, Philippines.
The marriage contract is an exhibit in the case and contains a notation that Advice required under article 62 of the Civil Code of the.
Philippines, has been complied with and the same is favorable. The
file also contains the affidavit of the beneficiary executed on March 21,
1966 to reflect that the beneficiary was previously married to Rodrigo
Ponta., on September 23, 19M at 13111ran, Leyte, Philippines that on
the date of their marriage beneficiary was only 15 years of age and
that she was abducted by Rodrigo Pontas and her parents decided to
file a criminal action against him and that through the aid of some
influential persons, her parents consented to the marriage; that several months after the marriage, Rodrigo Pontas left the conjugal
dwelling and was never heard of froni December 1958 up to the time
of the execution of the affidavit; that she did not know his present
whereabouts although some said that he had died .somewhere; that he'
has been absent for more than seven years and that she never saw him
again from the time he left her in December 1958; that it was her aim
to remarry an American, hence she was executing the affidavit to avail'
herself of the provisions of article 83 of the Civil Code of the Philippines in the case of absent spouses. The beneficiary's statement dated
November 9, 1966 executed at the American Embassy, Manila, Philippines is to the effect that one month after her marriage to Rodrigo.
Pontas he left her and she does not know where he went or where he
is now. She consulted an attorney who told her that she would have
to execute an affidavit to establish that she had not seen her husband
and told him that she had last seen her husband December 1959. The
attorney prepared a typewritten affidavit which she signed on
March 21, 1966 and she was not aware that the date of the disappearance of her husband had been changed from 1959 to 1958.
After the visa petition was denied by the District Director, the petitioner wrote a letter to the effect that the beneficiary went in search
of her first husband and found him. An affidavit signed by Rodrigo.
Pontas and the beneficiary affirming their marriage in 1959 and separa '
-
tion after four months. was made a part of the record. The affidavit
went on to state that a year after the marriage Rodrigo looked for
another girl who is now his common-law wife, named Encarnacion
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Malinso, by whom he has two children; that Rodrigo Pontas abandoned. the beneficiary for almost seven years without any communication; that Rodrigo Pontas is no longer interested in the marriage
between him and the beneficiary; that the beneficiary is no longer
interested in having Rodrigo be with her through life; that the parties
have agreed that they are no longer interested in living together as
husband and wife; that they further agree that no court action will be
-deemed necessary against either one.
Counsel refers to article 83 of the present Civil Code of the Philippines, Act 386, effective August 30, 1950 which provides:
Any marriage subsequently contracted by any person during the lifetime of
the first spouse of such person with any person other than such spouse shall be
Illegal and void from its performance, unless
(1) The first marriage was annulled or dissolved ; or
(2) The first spouse bad been absent for seven consecutive years at the time
of the second marriage without the spouse present having news of the
absentee being alive, or if the absentee, though he has been absent for
hiss than seven years, is generally considered as dead and believed to be
so by the spouse present at the time of contracting such subsequent marriage, or if the absentee is presumed dead according to article 390 and
an. The marriage so contracted shall be valid in any of the three eases
until declared null and void by a competent court (29a)
Counsel for the petitioner relies upon the provision of article 83
of the Philippine Civil Code relating to cases where the absentee has
been absent for less than seven years and is generally considered as
dead and believed to be so by the spouse at the time of contracting such
subsequent marriage. He cites annotations to the Civil Code of the
Philippines by Professor Edgardo L. Parse who defines as bigamous
and voidable marriages contracted because the absent spouse was
-absent for less than seven years but generally considered as or believed
to be dead by the present spouse; the second marriage is considered
valid until it is annulled. It is not the first marriage that can be
-annulled, it is the second one. The second marriage was allowed only
because the first marriage in the meantime is presumed dissolved, at
least in the eyes of the law. The mere returning of the first spouse is
not a fact recognized under law; what should be done is to have the
second marriage annulled. Until this is done, it is as if the first marriage does not exist; therefore all the effects of the first marriage,
including the conjugal partnership of gains, should be deemed suspended. Indeed, whenever a second marriage has been performed in
accordance with the forms of the law, there is a presumption that
there were no legal impediments thereto. The first marriage is presumed to have been legally dissolved and the burden of proving that
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Interim Decision *1719
such marriage still exists rests on the party who seeks to question
the subsequent marriage.
Information was sought from the Law Library of Congress regarding the validity of the marriage herein. In a communication dated
February 10, no, the Library of Congress affirmed the correctness
of the citations of Profekor Pares, both in his 1963 and 1965 editions,
stating- that the author in both books limits his discutsion to cases
decided by the Philippine Supreme Court involving marriages contracted by "present spouse" seven or more years -after the "absent
spouse" was last heard from, whereas the instant case involves an
absence of less than seven years; and as far as can be ascertained,
there is no.existing case law in point. The Library of Congress then
quotes from Professor Arturo M. Tolentino in his work entitled Commentaries and Jwisprwlenee on the Civil Code of the Philippines
(vol. 1, 1960 ed., Manila, pp. 249-250), who appears to differ with
Professor Paras that in article 83, good faith is the controlling factor
and that the first marriage is presumed dissolved by the second. With
respect to good faith, the author states that if the case does not fall
under paragraph (2), the good faith of the spouse who has remarried
will not validate the second marriage, and where the absent husband
has been away for Elie years, but there are no circumstances from which
he can be generally considered dead, and the wife, sincerely believing
that he is dead, remarries, the second marriage would be void,
notwithstanding her good faith.
On the question of the effect of a second marriage on the first,
Professor Tolentino points out that the law admittedly gives a legal
effect to the second marriage as between the parties to it, until it is
annulled. In view of this, it is submitted that although the first marriage subsists, all its effects with respect to the personal and property
relations of the parties must be deemed suspended. Professor Tolentino
further points out that the provisions of article 83 are of American
origin, and must be construed in the light of American jurisprudence.
An identical provision (except for the period of absence) exists in
theCalifornia Civil °ode, section 61; California jurisprudence should,
therefore, prove enlightening.
In the Civil Code of the Philippines (1950), the authors, Garcia and
Alba, their commentaries to article 83, state that generally speaking the marriages described in article 83(2) are called illegal
marriages. Until declared null and void by a -competent court, such
marriages are considered valid in the meanwhile. It is because their
voidability or nonvoidability depends on the happening of a. certain
event or the nonhappening of the same. Authors, Garcia and Alba,
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likewise cite the similarity between article 83(2) and article 1, paragraph 61 of the Civil Code of California.
Accordingly, the Civil Code of California was examined. Section 61
of the Civil Code of California provides in pertinent part that a
subsequent marriage contracted by any person during the life of a
-former husband or wife of such person, with any person other than
first husband or wife, is illegal and void from the beginning, unless
such former husband or wife is absent, and not known to such person
to be living for the space of five consecutive years immediately preceding such subsequent marriage, or is generally reputed or believed
by such person to be dead at the time such marriage was contracted. In
either case, the subsequent marriage is valid until its nullity is adjudged by a competent tribunal. The rule enunciated from the California cases and authorities is that a presumption arises from proof
of the solemnization of a second marriage that it is legal and that a
former marriage has been dissolved, but this is not a conclusive presumptiOn and may be controverted by evidence that a former spouse
is living and that neither a divorce nor an annuliment of the former
marriage was ever procured; the California Courts have read into the
statute the requirement that if the former husband or wife proves to
be alive, and the former marriage has not been dissolved or annulled,
the person seeking the benefit of the presumption must establish that
when he entered into the new marriage he believed honestly and in
good faith that his first spouse was dead.1 The California courts have
held that when a person has entered into two successive marriages, a
presumption arises in favor of the validity of the second marriage and
the burden is upon the party attacking the marriage to prove that the
first marriage had not been dissolved by death of the first spouse or
by divorce or had not been annulled at the time of the second marriage.2
In the instant case the reliance is had upon that portion of article
83(2) of the Philippine Civil Code which relates to an absence for
less than seven years but the absentee is generally reputed as dead and
believed to be so by the present spouse at the time of the contracting
of the subsequent marriage. In this case, the absentee was unheard of
for six years and believed to be dead by the present spouse. The
-absentee first spouse has executed an affidavit to the effect that he
abandoned the beneficiary for almost seven years without any communication between them; that since a year after their marriage in
Matter of 8—, 7 I. & N. Dec. 469, 472.
'Hamrick v Hantride,
280 P. 2d 189, 119 C.A.2d 972 (1953) ; Gainey v. Gainey,
259 P.2d 984, 119 C.A.2d 564 (1958) ; Monenga v. Rosso,
197 P.2d 770, 87 C.A.2d
790 (1948) ; In re Newman's Estate,
94 P.2d 859, 34 C.A.2d 706 (1939).
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1959 he took a "common-law" wife by whom he has two children;
and that he is not interested in resuming his former marriage relationship with the beneficiary who is now married to a citizen serviceman
by whom she has a child. Under the Philippine Civil Code, article
S3(2) the second marriage shall be valid until declared null and void
by a competent court. The marriage has never been annulled and the
first spouse has expressed no interest in obtaining an araaullment.
Under the Philippine court decisions and authorities the law admittedly gives legal effect to the second marriage as between the
parties who entered into it until it is annulled.' The comparable California legislation is to the same effect. It is concluded that the petitioner has borne the burden of establishing a valid marriage to the
beneficiary.* The visa petition will be approved.
ORDER: It is ordered that the visa petition be approved for immediate relative status on behalf of the beneficiary.
A fly Joe Diem; v. Sy Quin, 18 Phil. 131, arid. in
228 U.S. 385.
a Cf. Matter of Peralta, 10 L & N. Dee. 48, in which there was an absence of
more than seven years.
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