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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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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sir
I have been 7years separated with my husband and now my ex husband had already 2nd wife,,can I remarry anytime soon,any remedy for my case?thanku
Good Day Attorney! I am looking for a good lawyer that can help me my marriage problem that will also charge me less. It all started on my 2nd year as OFW year 2001while my husband was left in the Phils. I ignored the fact from my family that my hubby was having an affair with another woman. During my 2nd vacation I confronted him that end up to me almost in grave, if I wasn’t rescued by my brother in my own house with him during the confrontation. after that I never came back home. Instead I live separately by my all means. October 2003 I found someone whom I loved until now and having an 11yr old boy. He only comes home on his vacation for he is also an OFW. By the way, I’m no longer working since Oct. 2003 when we decided to live together. My 2nd man is also married with 2 children but now both of legal age. I have no child with my husband before since our civil marriage for 12 yrs. before I left to work abroad. We wanted to remarry but how? were both civilly married. we both have the same story. annulment is very expensive and he is only an ordinary OFW with less salary, our provider. My live-in partner also decided to separate not legally his wife after knowing the fact too from family her unfaithfulness, she now has also another family and child. Please reply me on how you can help us regarding this case. Thank you very much. I’ll expect your legal advice.
Hi Atty. Fred,
Sa Case ko po Kinasal ako noong 2005 at may isang kaming Anak, Huli kung nalaman na Kinasal pala sya Noong 2002. Pwede ko bang Mawalang Bisa ang aming kasal? Please Advice…
Dear atty, ,
I was married po for 11 years to an Australian, ,, we get married year 2005,,, last time I saw him is 2006,,, year 2007 I hear na he’s married to a pilipina,,, pwede po ba un,,, all I want is legal separation,,,am I allowed to get married again?even my marriege to him is legal,, but he is married twice,,, but una po ako
Hello, I really do not want to remarry, just wanted to know if it is considered separated when your husband never supported your kids for 9 years now.
I wanted to use my my Surname when I am still Single. Can this be possible.?
It is possible i can marry again even though im had a civil marriage before.but almost 8year we been separated.?
Atty. Fred
12 years na po kaming hiwalay ng asawa ko,after a year na ikinasal kame sa mayor wala na po akong balita sa kanya.Pwede na po bang ma void yung kasal namin?
ate jennifer hi..same po tau ng sitwasyon pno po kya un..sna msgot ni atty..meron kyang batas n pg 10 yrs.ng hiwalay o mhigit p s 10 yrs.pwede nga po kya mgpkasal ulit??gsto q dn po mlman ung sgot s tnong mo po ky atty..tenx po.
Atty,
I am married 2002 with my husband,and we have 2 sons, but before our marriage he already married last 1999,,,and I didn’t know about that..only 2005 that I know that he was married before,,,and I decided to separate from him also that year,,,but I still using his last name because my sss and other documents is his last name, specially in our children birth certificate. When I get cenomar from NSO still posted there that I am married with him. I am in Dubai now working as an accountant and passport has his last name,,,,What will I do Attorney maybe I will be deported or maybe I will have a case…please help me understand our law,,about my problem,,
thank you and God bless
Please reply on my emali
My nephew is in abroad but the wife is in phils and 5 yrs without communication bcoz the girl has another man but during their marriage the boy didnt sign the documents for nso or his signature he only signed the marriagr cert.for the civil registrar is it stil valid? Is it posible to file an annulment? Wat is his best things to do if he like to remarry again.thank you