Text of the provision
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.
(n)
Family Code of the Philippines, Executive Order No. 209, approved July 6, 1987. The Code took effect on August 3, 1988 (Republic v. Orbecido III, G.R. No. 154380, October 5, 2005). Reproduced in full. The notation (n) indicates a new provision with no direct Civil Code antecedent.
What this article means
Article 42 is the companion to Article 41. Where a present spouse validly remarried after a judicial declaration of the other spouse's presumptive death, and the absent spouse then reappears, this article governs what happens to the second marriage.
The second marriage is automatically terminated — but not by the mere fact of reappearance. It is terminated by the recording of an affidavit of reappearance in the civil registry. Until that sworn statement is recorded, the subsequent marriage continues to subsist. This is a deliberate design: it fixes a clear, dated event as the moment the second marriage ends, rather than leaving the parties to argue about when the absent spouse "really" came back.
The exception
Recording the affidavit does not terminate the second marriage if the first marriage had already been annulled or declared void ab initio by a court. In that situation there was no valid prior marriage to revive, so the second marriage stands on its own footing.
The affidavit may be filed by any interested person, with notice to both spouses of the second marriage, and the fact of reappearance can still be litigated if it is disputed.
Related provisions
- Article 41 — the presumptive-death exception that makes the subsequent marriage valid in the first place.
- Article 35 — marriages void from the beginning.
Cases interpreting this article
- Case law on the recording requirement and the effects of reappearance will be added here as each authority is verified against primary sources.