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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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..I’m 12yrs seperated to my ex husband whom I marry last sept 2001 and seperated June 2002 we had 2 kids on my custody.. From the 12yrs he doesn’t even gve any support to my kids.. And also he had another 3kids from another woman.. We don’t have communication fr 11 yrs then last year he add me on fb and asked for his kids but not give any support..but then he don’t communicate anymore now.. Is there possible that our marriage is void or not valid anymore.. Can I marry again without filing annulment.. Can I have my singleness if ever even not filing annulment? Please I need ur help.. I don’t have any knowledge of this.. Me and my bf want now to get married.. I really appreaciate all ur opinions and help..thank u so much
Dear Sir,
I am separated for almost 16 years fro now since im pregnant with my first child with my ex husband we get married with civil a mayor when im 6 months pregnant I leave my ex husband until now my son going to 16 years old he never meet at all and never supported us no communacation and I want to move on with my new life is there’s a way to re marry with another man do I have to file a case for annulment as I heard 7 years is already legal to get married again but problem is the procedures of those papers for annulment it cost too much an pls advice god bless
im married for four years but my husband is not with me…by june 23, 2010 i and him join in a civil union marriage…but after a year by October 5,2011 he married again since he was a muslim but at that time we were okay.but after 6 months he did not call me nor send me msgs.and this time he dont support me because his wife dont want him to communicate with me..what will i do please advice me..thanks..eva
he told me to wait because he has no work evrytime i send message his wife would call me flirt or prostitute.he would tell his sister that he cant call me but when im with her sister he call and in a longer time.he never mind me at all and he would leave me to his sister.all i want is my right is a wife not because im not maranao and im poor he would not mind me..what will ui do sir please tell me what to do…thanks
Dear sir
I have a boyfriend but he confess me that he got married for almost 13years..but his wife before have already married to someday else after 1year of their marriage..it is possible that there marriage will be null and void? And we can get married if we want..pls sir I need ur help
My present common law husband is married with his ex-wife with two children, they have been together for 8 years but only got married last 2009 and got separated 2011.. we’ve been together for more than two years now and we’re having a baby.. I just wanted to know if there’s still a possibility that he can remarry with me.. His ex-wife has her other husband this day.. I just wanted our relationship to be legal for the sake of our in coming baby.. What can you suggest me? What should I do?
4 years na kaming nagsasama nang asawa ko at my isa napo kaming anak. gusto po naming magpakasal kaso kasal po uing asawa ko sa una. ano po uing proseso na pwdeng gawin para maksal kami.
please advise tnx..
Good Day!
I’m separated from my ex-wife (ilegally) for more or less 3 years now. I’m currently providing my kid’s tuition fee (as child support) and borrowing my son from time to time. A lot of reasons why i left my ex-wife, one being a slob and not wanting to work to help out the family finances. I even saw a recorded sexual intercourse on her cellphone – which i mistakenly deleted since I was in great shock and didn’t want to have that video around or near me. In an effort to save the marriage, i forgave her and we still levved together but things just got worse. Unfortunately some things didn’t change. she still doesn’t want to work even after me begging for her to look for one… and still lived like a slob.
I’m now living with someone else and now have a kid of our own. What action/s should I take for me to officially end my marriage? Legal Separation? I know I have no grounds for annulment…
dear sir’
i had been married for almost 13 years. my wife and i was physically separated for over 2 years. the reason is, she pointed a knife on my neck that if she will do it right in front of my 2 kids. from that day i left her and she decided to take those kids with her without my knowledge. after she had taken those kids she attempt to kill her self by taking Lysol (cleaning liquid) to where she was taken to the hospital from treatment. she was tested by psychological doctors to where depressant causes it. Can i file a case to where our marriage be null and void?
Atty.,
Me and my girlfriend was bothering by her x husband, she was married last july 2011 and after they married she went back to saudi arabia to work as a nurse. but prior to their married we were steady boyfriend and girlfriend and before she went home to philippines for her annual vacation we have a big fight then i found out that she was force to marry her x boyfriend because her x boyfriend threatening her and even send NBI agent in their house and also they barangay captain telling her that she has barrow huge amount of money to certain person but she did not pay it back. So she was afraid and since we still not talking to each other during our vacation. She meet her x in Manila just to talk and he prepared for civil wedding ceremony..
So in one word they got married but no member of the family of the guy attended the civil wedding ceremony. and all expenses was shoulder by her more or less 30pesos. since then she’s not recieving any monthly support from her husband, she doesnt have any bank account details of her husband nor western union money transfer to her account. Every details involving money and pension was being send directly to her husband sisters or mother.
She even sent him twice money. by the way the guy was a seaman and my girlfriend was a nurse in saudi arabia.
The whole time they been together since boyfriend / girfriend, the girl is always spending for everything, she even support his review for seaman licensed and everything she gave to him.
And my she wants to get out from their relationship so she went back to saudi to work again after their married in July 2011, and we meet again in saudi in 2011 and we get intimate with love..theres a saying that love is sweeter the second time around..she got pregnant while we were in saudi but nobody knows about it except her 2 sisters and her mother, so went home to philippines but unfortunately the child lose after 5months of pregnancy. She recover from that sad situation and again she apply for another tour of duty in saudi arabia but before she leave the philippines she meet with her husband just for his request on his birthday and then he got drunk aand beaten my girlfriend resulting in bruises and scratches. since then she never attempted nor contact her husband and we get more close to each other and even my family was to closed to her..
and now, her x husband was threatening her to file a case against both of us.. but prior to that on 2012 her x husband already filed annulment case and she accepted it and just waiting for the hearing, unfortunately when she tried to contact his x husband lawyer they said that their client is not responding anymore to their calls regaarding the status of the case so meaning the case was no pending.
My girlfriend was so affraid now, she dont know what to do.
By the way were both working overseas, she work in saudi arabia and im here in LAOS..
Atty, please give advice on what to do..shall we file annulment case even if were overseas.