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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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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Hi good day! Can I get information how I can go in US to remarry a man who’s living in United States and my situation now I’m separated with my ex husband and haven’t yet anual our marriage. Please help me how I can move other country just to remarry even still my past marriage not yet anual. I will for the response. Thank you
Atty. Fred pls help.. My mom and dad are separated since I’m still baby now I’m 32. But I still got there marriage contract at the NSO. They both have a partner now. And my dad partner claiming that she is the original wife coz they also married. I just want to know if I still have the right. Coz my dad ignores me assuming that he don’t know me. Even though we met when I’m 8 yrs old.
Atty.,
Please do help me. I really need your advice. I was married last 2010 when i was 20 with a foreigner (Canadian) and he was 24 at that time. We lived together for 2 months here in the Philippines then after that he go back to his country. After getting married last April 2010 he decided to as for separation after 6 months of our marriage i don’t know what’s his real reason why he decided that after all i don’t ask for anything(as in anything po tlaga. he even refuses to give me even such as allowance even we’re married). As i have heard she has a new girl now. And me i am living with the father of my son for 2 years.
My question is can i remarry? Is our marriage still valid after he left me/abandoned me without any valid reason? How can our marriage be invalid? What should i do to be able to marry my live in partner today.
Thank you in advance and hoping to receive any response from a legal expert.
Thanks,
Delh
gusto ko lang po sana i consult. 10 years na po laming separated ng legal husband ko and haven’t heard from him since then, walang comminucation & support. i want to remarry and change all my legal documents lastname. posible po ba akong magpakasal ulit at magkakano po ang cost ng process?
Good day! Sir i’ve been separated since 2009 until now and i am support and give the allotment with we have agreement in every month. So I just wanna ask if i can married again with out any filing annulment and divorce papers? and it is possible that i can take my daugther.
i was married a year of 2004 we live only one year then we broke up because he is not faithful to me my married is unhappy so i found a right guy with me that he want to married with me but how i can get married? i really dnt know now what happened to my x husband my question is how i can married even we not get annulment?
hi.. i have a gf today we are planning to settledown, the problem is she is married but separated. Almost 12 years na syang hiwalay at walang balita sa husband nya and still missing. She dont know kung patay na ba even mga kapatid ng lalaki walang balita. what should we do ? pwede ba kami magpakasal?
Hi Atty,
I just want to consult about my case, I got married when I was 20 yrs. old and he is a Japanese. The reason for that is, my aunt suggested that if I will go to Japan it is better to marry a Japanese so I could get a higher pay when I get there. Unfortunately, my papers from the agency I was working and the paper after the civil wedding met in Japanese embassy, and that caused be being banned from their country. That Japanese was my Aunt’s Ex-husband, well they got married here, and they send the papers to Japan and filed there. They got divorced in Japan, but they did not file an annulment here. we are not really in a relationship, we just got married because of the said reason, getting a higher pay. After the civil wedding, he went back to japan, We never lived together, we never been together. We got married on Jube 10,2006. and I am planning to file an annualment, since we are not really lovers and I want to be married to the man am living with right now. We get can’t do it because of this issue. We want to have a church wedding, but since I still have existing marriage we can’t do that. Is there any ground/s for annulment, and/ or be voided?
Hi i just want to ask something is my wedding legal if we dont have any papers?we never sign any papers in muslim wedding … I want to get married again but they sAy cannot coz im married but we dont have any papers.wat should i do?
I have a big questions… I was married aug. 3, 1992 in civil then after ( not living together because need to be secret to both parents) when both families discover this things they allowed us to re-married in church that was dec. 28, 1998 sad to say after living together in 3 months both of us decided to go back to other country to work again but that time he failed to his job and I continue to work in taiwan as oversea contract worker and after 1 year Ive decide to go back home and stay with him. After been in taiwan I put up some small business but still not enough so I help him to go back in taiwan and I stay in philippines after so many months Ive discover to my own sister that my husband has a new apple of the eye and till that girl has a pregnant with my husband . The girl back to our country he cant marry the girl because this girl has a family too. So my husband continue to work there until he finish his contract he never back to my house he just stay to his parents while I am waiting him. One day he visit me and he let me in and discussed with me that we need to move on and separate. I agree but since then we never seen each other . Did I need to file annualment.? I need to move forward but how? Can you help me …
Thanks ,