Can someone automatically remarry after being separated, or when the other spouse had been “absent”, for several years? There are a number of questions along this line that were posted in the Forum. While there’s already an initial discussion on this, the question keeps cropping up, so let’s put this issue to rest once and for all.
The confusion appears to be based on Article 83 of the Civil Code, which reads:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any other person other than such first spouse shall be illegal and void from its performance, unless:
xxx(2) The first spouse had 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 less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of the contracting such subsequent marriage, or if the absentee is presumed dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.
If you stumbled on this provision, you may have this idea that a spouse can remarry even without securing a judicial declaration of presumptive death. In other words, there is NO need to go to court and it’s enough that any of the following circumstances is present: (a) there be no news that such absentee is still alive; (b) the absentee is generally considered to be dead and believed to be so by the spouse present; and (c) the absentee is presumed dead under Article 390 and 391 of the Civil Code.
This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides:
Art. 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. In case of disappearance where there is danger of death under the circumstances set forth in the provision of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.
[For a discussion on whether a court-approved legal separation entitles the spouses to remarry, refer to: Can a Legally Separated Person Remarry.]
As the law now stands, a married person must, for purposes of remarriage, file the necessary action in court and ask for a declaration of presumptive death of the “absent” spouse. The crucial differences under the Civil Code and Family Code provisions are:
- 1. Under the Family Code, the time required for the presumption to arise has been shortened to 4 years.
- 2. Under the Family Code, there is need for a judicial declaration of presumptive death to enable the spouse present to remarry.
- 3. Under the Family Code, a stricter standard is imposed: there must be a “well founded belief” that the absentee is already dead before a petition for declaration of presumptive death can be granted. A married person must conduct a search for his missing spouse with such diligence as to give rise to a “well-founded belief” that he/she is dead.
For an extended discussion on declaration of presumptive death, please click here to read the previous article entitled: “Presumptive death of a spouse for subsequent marriage.” Just to be clear: no matter how long a spouse is “absent”, the present spouse CANNOT remarry unless there is a judicial declaration of presumptive death. [See also How Many Years Before a Marriage Becomes Void in the Philippines; Reference: Republic vs. Nolasco, G.R. No. 94053, 17 March 1993]
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I am divorced now and not yet process here in the Philippines. My current boyfriend wants to marry me. Is there any possible that I can get married again?
Thank you.
Hi,
I was separated for 3 years and I did not get any support from my husband to our son?
Can I filed an annulment for this?
Can I filed a claim for child support?
He was also with someone else and living together.
Need your help.
Thanks
Dear sir,,i separated to my husband alsmost 7 years,wla poh xa soporta sa mga anak q,,ngkahiwalay poh kmi kc may karelasyong xa iba,,at ngkaanak xa don,,pro hndi pa un ngpksal xa sa iba sa saudi bukod doon sa naankan nya,,at noon 2013 ata ngpksal nman xa sa iba sa davao,,pro sa muslim poh..un ksal ba nmin is still valid poh sa mayor lang nman kmi ngpksal dti,,at ano pinakamadali proseso pra mpawalang bisa kasal nmin,,,, plz i ned ur advise..tnks
Hi atty..I am single.. I had a boyfriend. He is married but separated for 8 years because his wife lived with another man.. they don’t have communications but his sister in law informed him that her sister will allow him to marry again if he found a girl to be marry. and she is willing to sign a papers for annulment but cannot afford to pay for it.. Can u please advice us what to do?.. thanks!!
Hi Atty. Fred. I filed an annulment no appearance and my lawyer gave me a copy of petition. Is there any chance to double check if the petition is really filed to the court? How to do it because I am not in the Philippines.
Good day i wish you all fine i am pedra dorio 36 yr old i am separated to a man from Usa. we get married here in the philippines last january 2007 and that year he go back to his country. we talk a couple of month and He stop communicating. And i know from his friend that he remarry to a filipina woman to his country i dont have any contact from him my question is that our marriage still valid? I hope for you some help of my problem i dont have Money to fill an annulment. thats why i write this message just hoping to get some help from you thank you and more power. may god bless you
Dear Sir,
i just want to ask about my marital problems.
i was married with a Japanese national last 2001 (honestly i can’t remember if it was 2000 or 2001) in Las Pinas City.
after our marriage, he went back to Japan, but we never lived together as husband and wife until i divorced him when i went to Japan with an employee visa because i discovered that he was dating other Filipina..
from then, we never met or had any communication.
here is my question: is my case be considered as null and void, and what will i do to make my documents legal? a year ago, i am already dating someone and planning to marry..
advice, please.
thanks and God bless..
Dear sir,
I’m 5years separated with my husband with no support and all. masasabi po bang patay na sya dahil simula huli kaming ngkita hindi na sya ngpakita pa hanggang ngaun khit kamustahin ang anak nya ay wala give me an advice kung ano po ang dapat ko gawin kasi gusto ko po sana ipa void or annull po ang marriage namin pwede po bang authomatic na mawalan ng bisa ang kasal namin dahil sa ginawa nya o my certain years po ba para masabing void napo ang marriage kot pwede napo akong mgpakasal sa iba kung sakali makatagpo po ako ng makakasama ko po? thank u please healp me and give me advise sir…
dear sir,
Can someone remarry even without going to court due to absence or separation?” how po please give me advise thank you sir.
dear sir,
i was married last 2007, i just turned 18 then and my partner just turned 21 too. on 2009 we got separated and since then we live separately.. i just want to ask if there is a possibility that our marriage can be not valid now? and regarding my daughter, she lives with my mother in law..how can i get my daughter now legally? my ex- husband is not living with her mother too.i need advice sir, i hope i could get an answer.. thank you.