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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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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we have been separated for 13 years, he already has a new partner and children. if i acquire a property at present, will it still be considered conjugal?
Hi! I am a married christian woman I am separated 4 yrs already but not legally I have 1 daughter. I have a Muslim boyfriend from Dubai and he wants to marry me. We both love each other and he wants to marry me here in Philippines. I asked my ex husband for an annulment but he doesn’t want to cooperate. Is there a chance for me and my Muslim boyfriend? Please help us, we really want to be together and be together legally. what can we possible do? your advice will be a great help for us. Thank you.
hello po.. i got pregnant when i was 17 years old.. kinasal po kami nung 18 years old na po ako sa west lang po… pero never po kami nagsama bilang magasawa mero po kaming anak isa po pero nag decide po kami na maghiwalay after ng merriage namin.. kung baga kinasal lang kami para sa bata.. isang beses lang po sya nagpunta at yun yung araw ng binyag sa kadahilanan na bukod sa binyag ng anak namin may kailangan syang pirmahan para sa birthcertificate ng anak namin….. and after that nung umuwi na sya nuong 2009 hangng ngayon never na kaming nagkita im 24 years old at ang anak namin 6 yrs old na po never din po syang nagbigay ng sustento.. hanggang nitong 2014 nalaman ko mg gf na sya at bago lumipad papuntang ibang bansa yung girl duon natutulog sa bahay ng ex husband ko yung girl hanggang ngayon may relasyon pa po sila…. at itong 2015 nakilala ko itong bf koh gusto nya po ako pakasalan sa kabila ng katotohanang kasal pa ako sa una at gusto din nya pong ipadala sa anak ko yung apilyido nya since hindi panaka register yung anak ko dahil kinapos kami ng pera nuon po… anu po bang dapat kong gawin?? pwede na po ba akong magpakasal sa bf koh ngayon kahit walang seperation or annullment na ngyare since 6 yrs na din po kaming walang communication ng dati kong asawa?
Good day sir!
Tanung po ako if ano ang process na dapat ko gawin, kasi hiwalay na po kami ng asawa ko at ako po ay pangalawang pinakasalan niya. May MC sila ng una niyang pinakasalan from NSO at pati nadin po ako. Lumalabas po na secret married yong samin kc kami lang at mga ninang ninong namin nandun. Kinasal kami noong 2009 at nagkalayo dahil pareha kaming nangibang bansa at umuwi ako noong 2013 sa kanila luagar di ko nakayanan ang mga pangyayayi lalo sa pamilya niya dahil di ko po kaya na andun din nkatira ang isa sa inanakan nya at anak. Umuwi po ako samin at tuloyan na kami naghiwalay at yun pala may new girl na namn sya at nagpa convert siya into muslim para ma kasal sila. and now nakasal na po sila sir. Ayaw ko ng gulo at gusto ko lang po mawala ang record ko sa NSO as married. Anu po ang dapat ko gawin sir?
Sana po malaman ko ang kasagutan sa inyo sir.
maraming salamat po.
God bless!!!
Hi Sir Good day, I am married last july 2007 then I live him with in 3 years ,then after 3 years of married I separated him for some reason but not legally. And now 5 yrs without contact him and knowing him if where he is, I don’t know if he is alive or death. I have one child from him and he don’t give any support inside of 5years and also my inlaws never mind my child
.. How can I legally separate him even without going to the court because I don’t know him if where he is,
.
pls be advise..ive been married sept 18, 2010..after that married nd kami ngsama ng asawa ko..iniwan nia kami im pregnant that time…before the 1st bday of my daughter later i found out he work in mall..i reach him and try to convince to stay with our kid…so that time he is with me but for 1 year only the following year he leave me..without support of my kids and dont know where he is now…2015..can i file annulment for him? i dont know where he is now…how cant it be? pls help me..thank you so much..
oh i write my name
can u pls change my name into nick name as chen
Ako po ay kasal po nang civil wedding last 2011.at may isang anak na lalaki na may dead na 13 years old.at nagsama kami in one rooff for 6 years.After that nanginbansa po ako para maitaguyod ko ang pamilya namin.sa loob po nang tatlong. taon at kalahati lahat nang suweldo ko ipinapadala ko sa asawa ko.Noon umuwi na ako wala akong nakikitang nagbago sa buhay namin.at walang babuyan nakikita ko.noon bumili na ako sa isang bans nagpapadala po ako nang pera para sa anak ko lang po.nang Dahil dun nagagalit po sya sa akin.mula nun dko na sya kinakausap sa phone anak ko lang ang kinakausap ko po.After 2 years umuwi po ako nang pilipinas at kinukuha ko ang anak ko sa kanya Dahil wala po siyang trabaho.Sa awa at tolong nang Dios nakuha ko po ang anak ko noon year 2014, mula noon wala na akong alam kung saang lupalop sya ngayon…..YUNG 3 YEARS NA WALA NA AKUNG BALITA SA KANYA PWD PO BA BAWAT ISA SA AMIN NA MAG ASAWA ULIT..?MARAMING SALAMAT PO…
Gumagalang.,
Mayet
I would like to ask if marriage between a muslim woman and catholic man is considered valid in the philippines. Under Sharia court, marriage is not valid for a muslim woman to marry a non muslim man. How true is this? I got married to a non muslim in a munipical office. Is the marriage considered valid? I am confused in this matter. Hope someone out there can give me an answer. Thanks a lot.
Dear atty.
ask ko lng po kung pde po na mapawalang bisa na ang kasal nmin mag asawa kz po 18yrs na po kmi hiwalay. May kinakasama na po cia naun at hindi nmn po ako naghahabol sa kanya.ok lng po sakin un.nagkasundo na po kx kmi na wala ng pakialam sa kung anu man ang gusto nmin gawin sa buhay.gusto kp na rin pong lumagay sa tahimik ang buhay ko. Anu po bang dapat kung gawin sa naun.pano po ba mapawalang bisa na ang aming kasal
salamat po umaasa sa inyong tugon..
Rizaldy lim.