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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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’ve been separated for 8 yrs now. i separated with him because i used to be a battered wife. we never had no communication since then. can i re marry now without going to the court? i really want to seek legal assistance regarding this, it is just now that i get the chance of checking your website. we all know how expensive annulment procedure is. but my parents told me that since it has been 8 yrs now & the first marriage is already considered null & void. i dont know his whereabout or how i can contact him. i want to get answers please. he also never supported our daughter.
please do help.
thank you so much…
Dear Sir,
Good day! My situation is that me and my boyfriend want to have a civil marriage, but the problem is that my boyfriend has already been married once to other girl. it means that he has already a wife with 2 children. now my boyfriend keep telling me that their marriage is invalid because his wife is legally married to other guy. then recently we secure a CENOMAR to check if it is true and we found out that his wife got first marriage on October 1988 still not nullified and the second one is on May 2007 to my boyfriend. which means that the wife of my boyfriend entered into two marriages.
My question is the marriage of my boyfriend with his wife valid?
if the second marriage is invalid can we have a civil marriage? can we have our marriage even if my boyfriend has a record in the CENOMAR? what are the steps or things we should do to clear the record of my boyfriend in the CENOMAR?
thank you and I’m hoping for your legal advice…
Pls. email me in anonymous_burbs@yahoo.com
Hi, i am married for over 5 years now and i have one son. But i separated with my husband for four years already it means we live together as husband and wife for 1 year only.aWe separated because i found out that he has another relationship while he is out of the country OJT and i spoke with the girl also to confirm and yes they have a secret relationship.
He is not supporting me and the child eversine we live together until this very day, not even once when my son has to be hospitalized for a number of times.
Now i am working abroad for two years. He just e-mailed me this month informing me that the girl he is going with now is 5 months pregnant and he wants to be free from me and marry the girl.
Can you advise me what exactly i have to do with this to legally separate us as i dont want to go after him anymore.
Marriage in the Philippines is an inviolable social institution. The law inclines toward the preservation of marriage. Mere separation for a number of years is not a ground for annulment. There are certain conditions that should be met before annulment to be granted.
For more discussion of Philippine jurisprudence, please visit http://howardscasedigests.webs.com/
i have been separated since May of 2004. i got news from friends that my ex is living with another woman and they already have 2 children. my ex and i do not communicate, except for a couple of times that we need to talk about the annulment (through text). last time we texted was a year before and have not communicated from him since. could i use this 7 years absence as a ground for the nullity of my marriage? help!
Atty. Fred,
I have question, my friend and her husband got a civil wedding, after a couple of years living together unluckily they got separated for almost 8 years now. My friend heard that her X- husband was re-married and has already a child with his new wife. Is the marriage already null and void? since her x husband was already re married. She dont wanna file any case cause its gonna be hassle for both party, since her husband already had his family. any advices? thanks so much!
Gud day sir,
My girlfriend and I are planning to get married on civil, but she was married to a guy before with whom she did not knot was still married to his first wife. I checked her CENOMAR and she was registered as being married to that guy. My question is, is her marriage to the first guy null and void even though, she is registered in CENSUS as married to that guy? Does it mean that if we get married our marriage would be null and void?
Atty Fred,
Hello how are you, im looking for a lawyer that can help me for my case, i am 4 years seperated to my exhusband and im planning to file an annulment and remarry, how long is the process if i start next year and how much cost i need to spend to for all processesing, do i need to stay in Philippines to do all this process? Because i am in Dubai now for work.
I wanted to change my status as a single person, until now im still using the name of my exhusband, but i dont know where to start thats why im looking for a Lawyer to advice me. And i have a boyfriend now and we are planning to get marry, but we are not living together because of my work, can u help us to settle my case to have a legal papers to remarry?
Please advice me where to start, do i need to file annulment or i can ask the court for a declaration of presumptive death? in 4 years i dont have any communication to my exhusband.
Im looking forward for your response.
Thank you!
Atty Fred,
Hello how are you, im looking for a lawyer that can help me for my case, i am 4 years seperated to my exhusband and im planning to file an annulment and remarry, how long is the process if i start next year and how much cost i need to spend for all processesing, do i need to stay in Philippines to do all this process? Because i am in Dubai now for work.
I wanted to change my status as a single person, because until now im still using the name of my exhusband, but i dont know where to start thats why im asking for an advice. And i have a boyfriend now and we are planning to get married, but we are not living together because of my work, can u help us to settle my case to have a legal papers to remarry?
Please advice me where to start, do i need to file annulment or i can ask the court for a declaration of presumptive death? in 4 years i dont have any communication to my exhusband.
Im looking forward for your response.
Thank you!
I have been separated with my husband for almost 10 years now. Since then we don’t have any communication what step will i going take to make our marriages null and void?