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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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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elow sir …..just want to ask some questions I’ve been married for 7 years but been seperated now for 5 months….my x and I got to an agreement that we wont bother each other and we bot go on our seperate ways.I have a girlfriend now whose been living with me for 4 months and she wants to get married someday and so am I.But the problem is I cant afford to file for an annulment coz for what I heared it cost a lot.Is there anyway I can remarry?If there is how long will it take so that I can remarry?please sir help me 🙁 or give me some advice .Hope to hear from u soon.
My first civil marriage was on 2001 and it followed a church wedding on 2002. We got separated 2003.
I found out that he got married last Nov 2010. He now has a son.
My second marriage was on 2005 however my husband was previously married. The only reason we got married was for our daughter to be legitimate in paper. Eventually we got separated on 2009. He remarried last Apr 2011.
My only desire is to nullify my two marriages so that I can regain my single status and if possible, I would also like to fix my daughter’s name. Presently, I have a domestic partner and we already have a 1 yr old son.
Please advise.
Atty,
Can I file an annulment even we did not reached 4 years of being separated? The reason was by the time we were married for 4 years he promised to finish his studies and will have work. But within those years he’d been changing schools and cannot find what he’ll want for us, he constantly lie of being in school but always at the end to be discovered that he’d be just playing computer games. He’d been doing this ever since and I thought he would change his ways but never. I am screwed up with his lies and promises.
Good afternoon atty.
atty,concern ko lang po kung pwede pa po bang magpakasal ang isang taong ksal na kung may agreement po ang dating mag asawa??kasi po may kaibigan po ako na ganun po ung case nila..its that possible na maging valid ang pangalwa nyang kasal?kng my agreement at permahan nmn ang dating mag asawa?
Kasi po 3-4yrs na silang separate,no communication at all,pero may isa silang anak.ngayon po di inexpect ng frnd ko na maka2pag asawa pa siya kya nagkaroon sila ng agreement?possible po ba yon?
Hi Atty,
good Day!
me and my ex already been separated since 1999, nag abroad ako sa dubai to work in 5star hotel, then being here left alone to take care of our son which is 4 yrs old that time, he had a mistress, i come back to confront him and to take my son, since then i did not see him nor know where he is now , its been almost 14yrs now , now im back in philippines for good, what is my possibility to apply for declaration of presumptive death . i do not want to marry again i just dont want to carry his family name.
hope you can guide to my situation.
thank you
God Bless
ladyblue
Atty.Fred
I am legally married last May 2000. after our marriage, I’ve change all my gov’t status like Voters ID, SSS,Philhealth etc.. Me and my husband separated last 2008. I have all my kids with me and I never asked for any financial support from him. He has his new family now and I’m also living with someone and 3 months pregnant.
My questions are:
1.) Is it possible for my new born baby to have his fathers surname (my bf)even if Im still bringing my husbands surname?
2.) Can my new born baby have my maiden name instead of my surname(my husband’s surname)or his father’s surname (my bf)?
3.) Can I still avail my SSS maternity benefit even if my new born baby’s surname in his Birth Cert. is my maiden name?
4.) if me and my husband reach 7 years of separation, our marriage can be considered as null and void?
I hope you can help me with my problems. Your immediate response is highly appreciated.
Thank you!
I am 9 years separated with my husband because I was a battered housewife.Now he has 2 kids with his so called new wife.What grounds can I have to file an annulment with him?is it possible that if I file an annulment against him, it can be granted?and how long to have the result?
pls advice.THanks
I married when i was 18 last 2002, in a civil wedding. after a year and half of marriage, we just both decided to go our separate ways. meaning we separated. no baby, no support, no conjugal properties no nothing. now its almost 10yrs since then we hadn’t heard, see or talk to my ex. can i consider myself remarry again? how can i get annulment and for how much? what to do, i needed certificate of singleness to marry how can i secure that? plz, help!….
need some advice here, tnx….
Dear Atty.at the age of 19 i got my girlfriend pregnant ( but im not sure if it was mine because she told me she had sex with another guy) and decided to marry her knowing na baka hindi nga ako ang ama but i was madly inlove with her and forgive her for what happen ( iwas really stupid )but then i married her in civil marriage in our town. after giving birth to our child we got separated kasi nag aaral pa kmi during that time so i just visited my daughter once in a awhile. i found out na my wife is having a boyfriend kaya lalo nang nawalan ako ng chance na magkabalikan pa kmi.so after college i decided to go abroad to Saudi Arabia for a straight of 5 years. but i was giving child support on a regular basis. from when i came home i found out that she was also abroad with a lesbian partner , i tried many time to be in contact to save our relationship but i lost hope i decided to covert to Isla mi sAudi Arabia finding my true religion and after conversion i told the family of my ex wife that i am looking for someone to be with and i wanted to have my own family and they said ok naman wala naman maghahabol sayo” so i decided to look for someone
and found my 2nd wife in saudi and she was converted to islam and got married in a Muslim way in Saudi but my 2nd wifes family didnt know that we were married to a Muslim wedding so when we came back for vacation in the Philippines his father ask us to be married in church
so we decided to get married in church me knowing that my first wedding was not yet annulled. we had 2 kids. then came this 2010 that me and my wife decided to move to the Philippines to start our own business. my 1st child from my fist wife moved in with us and it came that she handed a copy of my first marriage to my wife and saw it she never knew that i was married before, so she was very upset but she loved me so much that she forgive me for that . i t came that my 1st child is going to college and her mom run out of work abroad and separated with her lesbian partner. and she wanted to give her child a good education so they struggle to get her to an exclusive school. knowing that she didnt have a job here in the philippines . so now she is squeezing me to support more of what i can afford and threatens to file a bigamy case against me. iam willing to support but i cannot bury the treat cause everytime she ask for increasing the support she threatens to file a case. i need your advise , sorry if this was such a long story.. i just need know that if i have a chance to fight for myself in court….
thanks
Atty. Fred
I have been separated from my husband for almost 10 years. I got separated with him because i used to be a sex slave. He is now living in with another woman and they already have 2 children. I really want to seek legal assistance regarding this, we all know how expensive annulment procedure is, I don’t know his where about or how I can contact him. I meet a guy and been wanted to get married can I remarry even without having my annulment for just for my legal husband absence and our separation?
Atty. Fred please reply on my email at nej_mj@yahoo.com.
Thank you.