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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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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Im waiting for your reply Atty. In my yahoo mail tnx
Can a wife who filed a petition for the presumptive death of her husband and luckily been granted, still needs to wait 300 days in order for her to contract a subsequent marriage? thank you
Good day atty.!
A couple has been seperated for almost 18 yrs. Both still leaving and have their own family. Is the marriage already nor automatically be void. And can they marry their respective partners now?
Tnx.
goodday po,,ako po ay may 2 anak,3taon lng po kaming magsama ng asawa ko kasal po kami noon taong 2000,,sa ngaun po ay may kinakasama na po cia at mi anak na raw po sila..ang nagbabalita lng po sa akin ay ang mga pren at batchmate ko..ako po ay nasa abroad ng mahigit 12-13 taon,,ako na po ang bumubuhay at sumusuporta sa dalawa kung anak,,,miski isang singko hnd po nia aq tinulungan miski isang singko,,,wla n po syan itinulong sa dalawa nmin anak,,gusto ko pong maAnnull o devorce sa kanya..pede po ba nyo aqon tulungan na mawalang bisa ang amin kasal…
Tanong ko po kasi ang kapatid ko hiwalay cya sa asawa nya seaman din asawa nya ..hiwalay i think 3 yrs na ..pwede ho ba magpakasal ang asaw nya kahit hindi sila annul ???
Hello there ! i am a mother of 3 grown kids.I’m 16yrs separated to my ex husband whom I marry yr 1985 and got separated year 2000 we had 3kids on my custody.. He doesn’t even give any support to my kids since then and We don’t have communication for 14 yrs. Suddenly he appeared after my kids done with their studies and got a job……..
the worst is he asked from my kids a financial support.’ I’ve no against about this anyways as long as my kids don’t complain about it. All my concern now Is how could i get a second chance to be with the one i want to live with for the rest of my life legally…Is it possible that our marriage is void or not valid anymore.. Can I marry again without filing annulment.. Can I have my singleness if ever even not filing annulment? Please I need ur help..Me and my bf want now to get married But, annullment is a bloody thing i’ve known and we cannot afford it financially… I really appreciate all your opinions and help.. Hoping for a sooner response..Thank you….
Hi! I married my japanese boyfriend last 2005 in a civil weddingand aftr a month he went back to japan to file our marriage license there. one and a half years of waiting for the spouse visa still i ddnt get it. I asked him if he really submitted our papers and in the end said he ddnt. aftr that our communication ended. I got a call from him one day sometime in aug or sept of 2009 that he’ll be coming back to the phils. wasnt excited coz i got a bf that time na. The day came and he arrived,he explained to me why he wasnt able to contact me coz he was in jail and that he wants us to live in the phils thats why he ddnt submit our papers in his country(he’s a yakuza thats y he went to jail for certain mafia jobs).I dont wanna get back wt him coz at our first year of marriage my friends in japan told me about him scenes of infidelity and I myself found out they were all true. Its been seven years since I last saw him, my bf and i wanted to get married but i cant coz of my situation. I called the jap embassy here and they said that my case is easy if i’ll be filing an annulment coz min of 3yrs of no communication thats abandonment and can be legal grounds for annulment. iv been to an atty and he said it’ll cost me 150k+ and i dont have that much money. If anyone here can find a more affordable lawyer pls help me…pls pls pls! thank you very much.. pls reply me at gabutanmariejoy@ymail.com
good day atty.. i have a live in partner for 4 years. he is married on his wife and had childrens. we now have 2 childrens and our relationship is definitely okay and smooth. we want to get married soon. how would it be possible that we can get married? is it true that we are common-law and can get married after 8 yrs?? thank you so much for your time.
Hi Sir,
My boyfriend was married through a civil wedding for 9 years to his former wife and they had a 6 year old daughter. They got separated for 7 months since the girl had another man. And a rumor that the girl and her guy are living together. We’re planning to settle down someday, is it possible for us to get married considering his status? or he should go on annulment process? Thanks in advance.
What if my husband converted to muslim in saudi and marry another girl and have 2 children without my knowledge. And we still together. What is the grounds of their marriage and how about our marriage their marriage are legal or valid..because he is now already a muslim