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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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. 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.
Dear Attorney,
Good day!
I am Filipina and got married to a Korean in 2007 here in the Philippines. I stayed with my husband for 3 months in Korea. Yet after 3 months, we decided to separate and he filed a divorce in Korean Court which was granted immediately. I haven’t heard from him for 6 years now. In 2007, I tried several times to communicate with him, but he never answered me. My problem now is, what can i possibly do so I can marry again? I do not know his whereabouts anymore since he applied for permanent residency to America way back then, but given I located him, I know he will not come here to spend money just to make our separation legal in Philippine Court. Please advise. I do not know what to do anymore. Thank you so much!
My husband and I have no communication whatsoever for over three years now. No financial suppoort, no text.. nothing. I know he is somewhere in Mindanao but this information is based more than three years ago when he was still heard of. What’s our status? I don’t have any means to know whether he’s still existing or not. And honestly, I don’t want to even know. I’m happy with my life now. Do I still have the right to venture into a new relationship? What am I suppose to do legally if I can’t contact him anymore. Thank you and more power!
Hi , i am married since 1991 , my husband went abroad in the year 2003 and has not been in contact since then. he has not fulfilled his obligations to his children and totally abandoned us. i just found out that i dont have birth certificate , i check the NSO already , so they tell me to file a late registration the problem is , the name in my marriega contract is elena and my birthday is january 8, 1971 , the nso said used your baptismal certificate that has a name ma.elena and my birthday in baptismal is january8, 1970 because that is only original document i have and my school form 137 up to college , now i want to know if my marriega is void because of my name is not the same , should i file annulment because i want to void my marriega , hope to get a reply rom you. please send your reply to my email add. and if you have recommendations, please do so. thank you and have a nice day.
My X husband left me . before going more than 3 times he says I divorce you . And you dead for me. I dead for you and he left 2 years after I merry with my childhood love now I want to be he live with me. But attorney says you need legal divorce. And after divorce you will go his country and merry again . Please help me I don’t want go his country and merry again . How I merry again ago and why.we married in 8-19-2013 please help me USA except our marriage please we are childhood lovers and husband wife please I need him I am alone I need him with me please help me. Thank you have a great day God bless you amin please mercy on us please? ???????
We were both christian when my ex-husband and i got married. We were separated for almost 7 years now.
I was informed by my father-in-law that my husband convert to Muslim and married his Muslim girlfriend.
Is his second marriage valid as we are still married at the time he got converted and get married in Muslim rite? What does our law says about it.
Please help.
Atty, I would like to know what my rights would be.
I am married for about 7 years and now has 2 kids with my husband.
Now, my husband and I are going to separate but not legally.
He has a job and I don’t have a job.
I have the kids with me.
What can I do legally as a legal wife for him to give support for his kids and what are my other rights.
There is no 3rd party. We just decided to get separated.
Thank you.
Dear Sir,,
i would like to ask about my marriage if i can be marry again without goin to court. we been separated to my ex(wife) since
august 2010. a year after i heard a news that she got pregnant
but shes not living with his partner and they have a one child.
i never saw her since 2010.
please send me back your reply. i want to hear your advise.
and what would i do? or how many years to wait for me to be marry
again to another woman.
thanks a lot!!
hi.. my boyfriend is married but they are seperated for 10 years.. but my bf still suporting their kid.. and now were soon having a baby we want to get married.. is their married is still valid even they are seperated for 10 years???
Dear sir,
My exhusband is an ofw we havent seen each other for 4 years. I already proven that he has a current relationship and he is still giving support to our child. I want to move on and want to have a partner in life again. Is there any chance i can be married again? Without filing anulment case. Thank you hoping for your response. God bless.