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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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
i had been married for 6 years but my husband worked in manila and do not support us for 4 years now..i do not know if he is still alive,he do not contact us anymore.what will i do to make our marriage null and void.last thing i heard is he already had a live in partner
Pls help me…hiwalay po ako sa unang asawa since 2003 gusto ko po magpakasal ano pwede po ba kami ikasal
I was married to a taiwanese girl but her document was incomplete. She has no legal capacity.. is there legal?
I am a married woman since 7years it was a arranged one…..my husband never loved me or showed any interest he only slept with me wen required recently I have fallen in love madly with a single guy he is ready to marry me …..we want run away plzz advice we r going mad
Please and ng some advise on how to fix my problems.. I am married the year 2001 and have one son.after the wedding we just live together only less than 1yr and get separate.until now its already 14yrs.and my husband have son to other woman but di cla ngkatuloyan.at my live in na cya they live together since 2005 if I’m not mistaken..now I found my boyfriend and will planning to get married..but my boyfriend can’t get me a fiancée visa because of my status..what is the best remedy for me and my boyfriend from London..pls.help Ned to know some advise…
Hi Atty,
Good day. I was married 1999 and we were not in good terms since then, a lot of differences. I walked away 2004 because I fell in love with another man. Now my first husband remarried last 2010 and we have not even filed annulment or whatsoever, however, it doesn’t matter.
My question is, he stopped giving child support to our only child last 2006 and started to give my child directly two years ago, but it’s only 2000 PhP a month for school allowance. He’s monthly gross income according to our daughter which her father brags is 60000 PhP.
I raised my daughter on my own since the time he stopped giving child support last 2006 up to now that my child is now an incoming Grade 11 and I would like to file for child support since he never bothered to give for a long time. How will I go about it? Thank you.
Atty. Fred,
I am separated for more than 16 years now and my so called husband had a new family…actually he take home a woman twice and he had children to both women.2002 we had an agreement in PAO in our place… i just want to ask if i can marry again? Our separation is not leggally with court hearing only infront of the PAO and we signed and agreed with what is written there….
Thank you very much hoping you can answer my question.
Good day atty. Fred,
Im separated 11 years sa ex wife ko at meron na din syang mga anak sa kinakasama nya ngayon magiging invalid po ba yung kasal namin without annulment? At pwede aq magpakasal sa ibang babae? I need your advice atty. Kung anong dapat gawin.
Salamat in advance.
good day po..ask ko lang po hindi na po kasi kami nagsasama ng una kong asawa ng 7 yrs.ngayon po my kinakasama narin ako at my anak narin po kami.sa 7 yrs po naming hindi nagsasama mababaliwala na po ba yung kasal namin?
I’m married in yr 2012, we separated in yr 2015
Can I file an annulment and remarry again.?