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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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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My husband and i married here in the philippines but he go to usa and married a us citizen there almost 15 yrs when he go back here see his family
He pitition my 2 son now my eldest son pitition me and my husband wants me
To be with him even he married and hav 3 child
Do i have liability if i go with him
My married with him in the philippines was secure
Dear sir,12 years n po akong marriage n wlng communication ng husband ko,, but meron akong ngaung bgong krelasyon at gusto nmin mgpakasal,ok lng po b n mgpakasal ulit n nd n dadaan s korte?
Hi,
I am married 11 years but my husband was not present and he is in the spain and did not hear any news from him is this a good evidence or way so I can be annull and be mary to other men?
THanks
Hi sir
Good day?sir ask ko LNG po if pa paano po Ako mgpakasal ulit sa kinkasma k ngyn 18yrs n po kmi hiwlay ng una kong asawa?at may aswa nrn sia at ank?gsto n po kc nmn mgpakasl ng kinksma ko ngyn dhil 2 n po ang ank nmn?sna po mbgyn nio Ako ng payo Kung paano po ang dpt nmn gwin Pra nmn po mksal n kmi ng aswa ko ngyn?mtgal n po kc nmn balak mgpaksal para s mga Anak nmn?
Gsto nrn po mgpa kasal ng una kong aswa dun sa aswa na nia ngyn,Pra nmn po s mga kanya kanya ank nmn?
How do I apply for a judicial declaration of assumptive death of a spouse?
Hello Sir,
My Girlfriend and I were living together for 3 years in the same house and had 2 children but not legally married until February 14. 2009 we got married.
On Feb.28, 2009 I went to Saudi Arabia to work then my wife committed adultery and as a result gave birth to a child last 2011 of November.
As I came home January of 2012 we talk and agreed to live separately for she is having a new live-in partner not the one who impregnated her.
My question is:
1. Can I still file an Adultery case to her for i saw on facebook account all her malicious acts together with her new live-in partner?
2. Can I File an Annulment case with this situation?
hello.. kinasal po ako nung 2004 and naghiwalay po kmi nung 2005 .. pero wala po kming anak. and nung 2009 nkipag live in po ako at nagkron ng anak nung 2010.till now magkasama at mag 3 n po anak namin ng live in partner ko.. and nagpaplano n magpakasal sa 2016..
tanong ko lang po kung pede n po v ako magpakasal. sa ka live in ko khit kasal ako sa una..
hindi po kmi legal seperated.. at hndi ko n rin po alam kung nsan n sya ngaun..paano at anu po ang dapat kong gawin.. wala rin nman po akong sapat n pera para magpa-anull..
sana po matulungan nyo ako.. salamat po..
Good day pwd po magtanong almost 7 years n po ako ksal sa aswa ko. Then I become Muslim and also almost 6 years n kmi hiwalay for lost communication. And he his Christian. Ask no po Kung may possibility na makapag asawa ako ng Muslim din. Kc as shariah law pwd po mawalan ng bisa ang kasal ko. Kc christian ung. Ex ko
Please reply
Good afternoon po..hiwalay po aq sa X husband ko since 2008.May pmilya na po xang bago ngaun.Kung tutuusin po mula po ng mghwlay kmi kulang po ung suporta nia sa anak nmn at hnggang sa umabot na s Punto na wala na Syang suporta sa anak nmn.Gusto ko po mpwlang bisa ung kasal namin.Ano po b mga dpt gawin Pra mkpgfile ng legal seperation or anulment against him.at Para po. Maging malinaw sknya kung anu mga obligasyon nia sa anak nmn at ung mga grounded nia kpg naging null and void na ang kasal namin…since andto po sa Hongkong as ofw San po ba aq pd lumapit at mgconsult about my concern…SALmat po at umaasa po aq na mgkaron ng kasagutan ang concern ko po