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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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]
- Twin-Notice Rule and Procedural Requirements in Employment Termination Proceedings - June 3, 2020
- When Travel Pass is Needed for Interzonal Travel during Community Quarantine - June 1, 2020
- Can Companies Compel Employees to Work during the General Community Quarantine (GCQ) and Impose Disciplinary Sanctions - May 29, 2020
hello sir,
I am badly in need of help.I am a teacher,a mother of 3 kds and married. But not lucky in the field of marriage.We were separated with my husband for almost 3 years, he never give support to our kids (since the beginning of our marriage). I tried to save our marriage but i just cant. My concern is,i have lots of debts to the extent that my salary is not enough for our daily needs. I am asking for help so that our marriage will be annulled so i can look for somebody else to help me in raising my family. Majirap po kasi nasa government sevice ako. Napakahirap magkamali. I am just but human, minsan nagkakamali. Pero hirap na hirap na po akong mag-isa. Kailangan ko din po ng kasamang susuporta sa mga anak ko. Can i ask for PAO to handle my case??/
I hate this annulment ..i filed it and was only dismissed and you know I spent a lot of money,,,nag file ako dahil gusto ko na ng freedom ko and because my ex husband lives with his prostitute wife with one child…i have three kids….annulment in philippines really sucks!!! Ang daming ground but in the end madi dismissed lang and now my lawyer wants me to file for reconsideration, does that mean me chance pa to appeal about the case…please advice….i dont live with him since 2011 after knowing about that prostitute woman got pregnant by my ex husband…
Dear Sir,
My (ex)wife and I have separated in 2012, but we have not filed yet a legal separation. I have no idea where she is right now. I would like to inquire on a certain scenario that involved my (ex)wife.
During the time we were together, she mentioned being married in Hong Kong to an American national. Prior to the marraige, she mentioned “having separated” from this American. Taking her word, i never bothered to check further and just relied on her statement. They had a child whom the American supported on many years, until our marriage. I found a stamped certified true copy of the child, which indicated they were married in Hong Kong. During one of our confrontation prior to the separation, i asked her if they were indeed married as indicated on the birth certificate, she replied “it was already taken cared of”. I also found land documents from her before having her name using the american’s surname. I applied a CENOMAR check, but it turned out negative. I spoke to an attorney, and he mentioned, that not all entries are being placed in the CENOMAR. Only the “end status” are indicated, meaning it shall not include a marriage nor a separation history. This added further to my confusion. I am trying to check with the HK Marriage office i can avail of a marraige license copy if there is one.
The situation had become complexed. I am now with a new partner and we plan to get married. Will the situation be a valid ground for the disqualification and annulment of our marriage?
Your kind advice is much gratified.
May i use a pseudonym for this inquiry?
Thanks so much.
“ALEX”
Hi…….
Im married since 2011 but i left him because of drug issues and we cant go on with our marriage.
I left him last june2014.
I came to k ow someone hes from california
We are serious and he wants to marry me….
Can we get married in california though im still married in phil?
hi,
i got married when i was 19 and it is a church wedding and now seperated for 3 years . our marriage just last for a months then we decide to separate our ways . Now, my husband has a new wife and a baby . i didn’t change my status yet . i just want to know if in my case i can file an annulment and can marry again ? THANKS
Hi. I have a very complicated situation. I am in a relationship for 12 years now we have a kid. We were never married because he have a previous marriage. He went to UAE to work. He went home for a vacation just recently and w/o my knowledge, he married someone else that he got pregnant when he was away. He told me that he got his 1st marriage annuled while he was away. He filed for an annulment October last year and married the girl January this year. I thought that that was a very fast annulment. When I get a copy of his CENOMAR, both marriages where registered w/o a copy of annulment. Is the 2nd marriage legal?
Hello good day! May boyfriend akong ka live in ko for almost 4 years may asawa xa dati pero hiwalay na cla. May asawa na ung babae at may anak. May anak ung boyfriend ko sa asawa nla 2 boys. Ang gusto ko mangyari Ay gusto legal kami masama . Ano po b dapat gawin namin para matupad ung pangarap namin na legal kami. Thanx!
hello im new here im browsing and i saw this site, i was married last sept 2003 and we got seperated 2005 coz my husband got inlove with my best friend , when we got married his parents are not aware only my parents are present tha time i was 19 when i got married and my husband was 23 we both need a parental consent since his parent was not agree with the marriage only my parents and my husband wanted it we asked some of are family friend to sign for the parent consent of my husband. want to ask is our marriage still legal. I havent got any copy of our marriage certificate im not sure if its register as well. we dont have any communication for 10 years the last time i heard he is living with his gf in his parent house.
and sa ngayon po i have a live in partner din po may first wife sya they got married 1999 may two kids cla tpos ng ibang bansa ung girl tpos dun po nag aswa ng hapon kya cla nghiwlay nung present partner ko they are seperated for 7 yrs na sa japan na nktira ung ex wife nya sa japan so in short halos pareho kmi ng pinagdaanan, ako at ung ex wife ng ka live ko ay ok nmn ng kakusap cla just because of their kids anu po kya ang pwede nming gwi pra mkpagpkasal na kmi pls help us we have kids nrin po na dlawa.
Magandang Buhay,
Im Laila, At legal age…wanna ask about po sa re-marrying..may leave in partner po ako for 3 years na po…and we plannig to get married.problem po kc..his married..pero 10 years na po clang hnd nag sasama at may anak po cla na kasalukuyang nasa pangangalaga ng mga magulang ng fiancee ko.yung asawa po nya ay taga dun lang din sa baranggay nila na halos mag kapit bahay na cla…pero for 10 years na po clang hnd nag sasama..
tanong ko po..pwd po ba kaming mag pakasal ng leave in partner ko..
sana po masagot nyo po katanungan ko maraming salamat po.