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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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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ATTy. 11 YEARS NA PO AKONG SEPARATED. NASA CANADA YUNG MISIS KO AT MAY ASAWA NA CANADIAN FEW YEARS AGO PA. PUWEDE NA BA AKONG MAGPAKASAL MULI? NABASA KO DITO NA FOUR YEARS OF ABSENCE AY PUWEDE NA. HINDI NGA LANG NAWALA O NAMATAY KUNDI NAG ASAWA NA NG IBA. PLS I NEED YOUR ADVICE.
THANK YOU
EDUARD
I am filipina and married in a australian citezen guy marriage solemnized in phil. he is muslim and i is celebrate in a mosque. but found out later his devorce from first wife not yet effective within the date we got married… and 2year later after wedding no more comunication.at all till now 5 years now.. now im planing to remarry again here in hk… do I need court devorce or itis null and void is it no need to go devorce
Dear Sir,
Good day!
I’ve been separated for almost 9 years now. And for all those years I had no any contact to my ex husband. And after those years I’ve got into a relationship. I am rebirth now as a Muslim and my partner now is a Muslim, is it possible that I can get marry with him without a singleness certificate. What must I have to do with this. Can u please help me.
Thank you and have a nice day.
Good day! Ask Ko Lang po, pwede ba kaming ma kasal ng kinakasama ko Ngayon? May asawa siya dati kasal sila Pero hiwalay na sila ‘ 16 years na silang hiwalay, Kasi noon Wala pang cinumar * gusto naming magpakasal.. / pwede bang Makasal Kahit Hindi nag file ng annulment? Ang ang Dapat naming gawin? Please advise me. .. Thank you
how do you go about getting a divorce if the person you married was in another country but ive had no contact with him for 7 years and have no idea where he is . i can not afford expensive lawyers. what an i do . help please
Kinasal po kami noong Aug.26,2016.after a year naghiwalay kami ang tanong ko lang po mula ng ikasal kami never ko pa nagamit ang name ng husband ko even my transaction before because ang sinusunod ko po at yung id ko na surname ko p din po hanggang ngayon po na hiwalay n km do ko n tlga ginamit ano pong masasabi nio about dito
My girlfriend is living apart from her husband for a few months. He cheated on her and uses her for personal favors, and then goes back to the other woman. They have three children together, she has the baby, and he has the other two, aged 7 and 10. Neither she, nor I can afford annulment of her marriage at this stage. I have already proposed and she said yes. What can we do in order to make our marriage in the Philippines legal?
We also want all three of the children with us, not with the father.
Good Day Sir
Iam 41 years of age at kinasal aq noong 1999 after noon hindi po kami nagsama bilang mag asawa at di tumira sa iisang bobong pero nagkaroon kami ng isang anak sa loob ng 18 years wala po kaming communication….sa ngayon po meron akong kasama sa buhay at plano po sana naming magpakasal…gusto ko lang po sana itanong kung ano pwede kong gawin para maging legal ang lahat…salamat po
Gud day!
I just want to ask po wat is the easiest way pra mawalan ng bisa ang kasal namin ng x husband ko po…mag 7 yrs npo akng separated and ung x husband ko po meron ng ng dalawang anak sa labas magkaiba ung nanay.At this time po meron nrin akng bf and gsto nya akng pakasalan.kc po kng magfile ako ng anullment verry expensive and ang tagal ng proseso..ano po ba ang dapat kng gawin?tnx and God bless…
Atty. I have a girlfriend whose husband abandon her and their children for 12 years we want to get married what shall we.do.I am a widow.Thank you.
Hope there are attorneys willing to answer, there are already a lot of questions with no answer from the author of this blog. No offense but i would like to know what case to file a Widower having an affair with a still married woman.