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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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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Hi po just wanted to ask. My bf got married before he is now 5 yrs seperated to his ex wife due to his ex had an affair with another man. Hindi niya tinuloy pagpagile ng kaso sa ex niya during that yime due to his in Laws na nakiusap sa kanya. Now we’ve been talking about getting married but I wanna know what’s best. To file an annullment even if they are no longer talking/ they don’t have any communications na or we can wait for what they are saying the 7 yrs that we are not sure of. Magastos kase magpaannull. Hope you can give me an advice po. Thanks
Good Day Atty.
Separated po ako since 2006 sa wife ko na nakipag relasyon sa isang tomboy, may isang anak po kami at hanggang ngayon sustentado ko pa din nasa hongkong po siya ngayon, may kinakasama na din po akong iba ngayon, nagbanta po un ex wife ko na mag file siya ng concubinage pag uwi nya ulit sa pinas. Mayroon po ba ako legal basis para ma.annul na un marriage ko sa kanya at paano ko po depensahan un concubinage na i.file nya. Salamat
We married n church and civil wedding legally for 24 yrs. Now and found out 2014 he got another family and kids used his family name, they living in their new home and authorized to handled my business land, many assets he sales with out my consent, we don’t have contact only my kids meeting him and I allowed because he is still father of them. Only I concern is happen on us the legal family , what is our right, I believe the Philippines law is more intelligent than other country.
Good day, Atty. Fred,
I gave birth with my son on July 7,2007 with my long time boyfriend. We lived under the same roof for more than 10 years before getting married on April 8,2014. We were married in RTC without marriage certificate. We got separated in fact after nine months of marriage(January 22,2015). I knew of his infidelities and he and the woman confirmed it. Since then I lived my life as a free woman. He didn’t provide for our needs and I had worked to send my child to school and provide his daily needs.
In December 2015, I had a boyfriend. He was married, but separated after finding out that his wife was unfaithful to their vows. They separated August 2015.
1.) Now I am 5 months pregnant with my boyfriend. Can my child use my boyfriend’s name even if I am legally married to my husband?
My husband is now taking time to visit our son. We have agreed to focus on our child’s needs and not to interfere with our current relationships.
On the other hand, my boyfriend’s wife is also reaching out for the annulment process, yet we couldn’t do as of the moment as to lack of budget. She, my boyfriend’s wife, also has a new boyfriend. We are getting in touch for the separation agreement.
2.) Can I ask PAO for help in my case? Considering I am pregnant with my boyfriend, even if it was my husband who abandoned us in the first place.
3.) Can my boyfriend also ask PAO for help? They were married in Catholic church. What process shall they do first? Does the church recognize the court’s decision and vice versa?
I would really appreciate your reply Atty. Thank you and God bless.
i was married last dec2003, after 2 yrs were being separated with my husband, bigla na lang sya umalis ng bahy w/o any reason at nwalan na kami ng communication, pano po ba ang gagawin ko gusto ko na mapawalang bisa ang kasal namin. Pwede ko po bq ihabol sa korte n mapawalang bisa ang kasal namin dahil wala sya legal documents n ginamit para makasal kami kht birth certificate wala sya at naniniwala din po ako na hindi nya totoong pangalan amg ginamit nong ikasala kmi dahil wala mkuha n nso birth certificate pano po b ang legal n paraan para mcancel ang kasal namin
Atty
ask ko lng po pede na bang magpaksal uli ang lalaking 8years ng hiwalay sa asawa if may separation agreement sila mg dating asawa ?
ask lang po kung may bisa po b magpakasal kami kahit hindi pa annul. hiwalay napo kasi yun bf ko 17 years na hindi cl nagsasama. sabi daw may gagwin daw pra mkasal kmi s cmbhan o s civil. sure daw yun kc tested na kesa daw magbyad p ng malaki.
Dear Sir,
Question ko lng po, if the couple was already separated but not leggally. They were separated for more than 15 years. The wife has already a family with 3 kids and was married to another man. They got married in another country and both are filipino. Will the first husband can file to void their marraige or need parin mag file ng annulment.
Salamat po
sir good morning
i was married to a korean citizen but we are divorce in south korea last 2011..what will i do..anu pong kailangan ko nalang gawin bukid sa annulment wala din po kasi akong budget para duon.e my plano na po kasi akong magpakasal ulit sa isang pilipino thank you
Hi attorney
I am separated for ten years and I have two kids my ex husband now got live in partner and had two kids . And they live together. Us of my part I got my foreigner boyfriend now and we in relationship for almost 3 years and we planing to get married in can I get married him evenow we not go annulment please advice me aND what things I should please help me
Your throughly respectful hazel