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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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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Dear Sir,
Against my own parent’s and family’s wishes, I eloped and married in July 1977. It was an abusive marriage so I’ve been separated since Jan 25, 1995; and got my divorce judgment in the States in 2001. My husband has been living in the States since 1991 but still is an undocumented [TNT].So we have not been living together since. I feel like I’m married to SOMETHING!!
I’ve been with a foreigner since 2005 and we wish to marry but because of my complicated status, we cannot seem to arrive there.
Several have suggested that we marry even in HongKong since divorce is recognized there, then we may live here “quietly”. Since we wish to settle here in the Philippines, my fiance still has a couple of concerns regarding our situation:
1]. If we go ahead and marry in HongKong our marriage still won’t be recognized by Philippine Law therefore making me a bigamist.
2]. Can my ex-husband sue me for bigamy even if he cannot leave US soil due to his undocumented status? Can he file a case in absentia?
3]. What can we do? I tried to file for annulment but it receive 2 denial judgments from the QC RTC and Court of Appeals. Many say that this is practically a death sentence when the COA gives its verdict.
I’ve not seen or lived with my husband since 1995. Isn’t there any law stating that couples who have not lived or been together for a certain number of years automatically dissolves the contract?
I feel so stuck because I would like to marry again and live here in the Philippines but fear being sued in the future. Please advice. Thank you so much
Any remedy for my case? i have been separated from my husband for almost 10 years. He is now living in with another woman. Prior to this woman, he married another woman, meaning bigamous marriage, still invalid?
What remedy would u suggest other than request for annulment? for me to marry a foreigner?
Hi..same tau ng situation..I’m also asking for advice for I’m going to Mary a British Man..what should I do to get visa..
@ Blace/lambstbl1, the topic above addresses your concern. There seems to be a continuing impression that mere separation for a number of years is enough to automatically nullify a marriage. I’ve been trying to figure out the source of this misimpression, but with no luck. It’s true that during the process of drafting the Family Code, the Family Law Committee thought of absolute divorce, with some members favoring a no-fault divorce between the spouses after a number of years of separation. This, however, was not carried out and there is no provision of that sort under Philippine law. Perhaps we could trace the history in the next article.
@ Simple Mae/elle_beauty/e_gmel/des_09/maryann/donnalyn24/girlcomplicated/gigipasia — I believe your queries are covered by other topics; not here. Please take time to check the other relevant discussions. Thank you.
hi atty. i need some advise .. 5 years na po kaming separated ng spouse ko. wala po kaming contact kahit pansinan. after we got married po a few days nag hiwalay na kami iniwan nya po kami e. ngayon po may new family na ako and gusto sana namin mag pakasal ng partner ko but i cant afford an annulment ano po kaya ang pwede ko pang gawin since 5 years na naman po kaming hiwalay though buhay pa naman po sya. pero wala na po kami talagang paki alaman thanks po sir
hi im separated for 2 years now but not legally,my ex husband had already a 2nd wife and a love child who is now living at my in laws,but he is supporting my 3 kids,he is now in abu dhabi working,can i file for a legal separation?
Atty. Fred
I was married 1990 and it was known to me that he was married( shotgun wedding)in other city and they have a child. I went to abroad to work and he was always gallivanting with other girls so after 3 times of going back home from abroad i decided not to coming back home since 1995 and i stayed abroad for 12 years and without any communication, and i heard a story from my friend that he get married in civil in another place and they live now in our house as a husband and wife. So i am home last 2006 and i filed for an annulment but it was complicated with the collusion when the sheriff serve the summon the new wife received it and proclaim that she is the wife to the fiscal stated the report for a collusion. If it happens that his first married(shotgun wedding) had a record at the NSO my marriage to him will be null and void? I want your help with this.
Thank you
I just want to ask if its true.
My ex american husband got our divorce decree in guam, he told me , that he can get married in the philippines with his new gf without going thru recognition of divorce decree. Is it true? he told me, that, his lawyer in guam told him that. How about our record in NSO, were still married since our divorce decree still not recognize in the government law.
hi atty fred,
i already filed for anulment but my problem now is that last march 30, 2009 the my case was submitted for decision… i just want to know how long would i still wait for this decision. it has been three months since i heard about my case. and what are the next procedure for this coz it i filed my anulment last feb 1 of 2007 til now wala pa siya! i have been waiting for this case patiently kaso lang yung atty ko is asking for another payment for the solgen and stuff to make it faster. but somehow i have learned that the court is doing it for free kasi office to office daw yung filing… hope you could give me some advice on what to do next! thanks and hope to hear from you soon…
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.
Dear Atty Fred,
I was married in 1987 and my marriage fell apart on 1997 due to infidelity on my husband’s part. By 2000, we were practically estranged and separated, with absolutely no communication whatsoever.
Since that time, I was solely providing support to my two children, up to the present, and my children and I were living under the assumption that he was either with another woman or that he may have died due to a prevailing heart condition.
Now that I have found someone and would like to marry again, I would like to know the following:
1. Based on the preceeding statement quoted in this text, please qualify the phrase “well founded belief” for me, in order to be able to file the necessary documentations related to this, i.e., What “proof” is needed to substantiate that my husband is indeed presumed dead, considering that I do not know where he currently resides; and that my former in-laws are estranged from me.
2. What are the necessary initial steps to be able to start the process with an attorney;
3. What are the step by step processeses that it will entail once the filing of documentation has started; and
4. How long will it take for me to be able to receive a decision from the court.
Many thanks for considering this post.
Maxine
hello im married on setp 26 2001 at ust chruch n seperated since nov 2003 my husband hurting me n my kids physically n emotionally the last time he hurt me is jan 2004.. while trying to get my daugther going back home he punch me at my head that give me blackout while im walking in the street.while he is with me he admit he got other gf so wen the time we seprated he live with her …. he never give me support since the time were together only my granny help me with my kids milk and diaper coz that time were living with them so the rent of the house n food is free.i want to annul our marriage. please help me im not that rich. im scared that he will get my daugther. please help.. do i need to get annul? to remarry? or it our marriage is not valid already coz we dnt have any communication or not seeing each other since 2003 until now? pls help
Atty fred,
I was married and never had contact with my husband for 8 years and i do not know his whereabout. At this time i am filing for Petition of Presumptive of Death. Do the US government will honor this instead of annulment so as my american boyfriend can apply fiance’ visa for me. I need your help badly. Thank you so much.
Sir,
iam verbally separated with my husband. Now, im currently living here in italy i’ve been here for 4 years now. I wanted to get marry here in italy but my question is, is that possible to get marry here even im still married in philippines? and is it possible to process my annulment over in phil while im here in italy? i need ur advice. thank you.