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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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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hello sir,
im left my husband for more than 6 years already after our marriage bcoz i caught him with other lady in bed.now he has his wife n kids already,is our marriage is already void?can i marry also?
tnx and more power
honz
sir.. how about the case that we never live together for 7 years..is it nescessary to go through the process of annulment?.. and one more thing. since we marry i never used his surname..i just used my old ids even bc in all my documents..like that of that of my passport
soon ill go back teaching.. is it fine and legal not to use his surname? thank you if you could give me a hand…
note: never supported us financially..we had a son..he’s under my care
hello…. may i inquire if i can remarry without any legal procedings when my husband abandoned us (with my two children) for 10 years already. i do not know where he is now … from year 2005 up ton present. even his brothers and sisters do not know where he is too.
May i have your advice for this matter
thank you and God Bless
I want to know if there is any fight in this situation:
My mom is the second wife of my Dad. My Dad and her first wife did not really get legally annuled. They are separated for many years when my Dad married my wife.We claimed all benefits in SSS since my mom is the dependent of my Dad. My Dad started his SSS during the time my Dad and Mom are together already. Now the first wife also filed for my Dad’s pension. What are our fight against them?
Hi..im seperated for six years to be exact…and we Dont have any idea where is my x husband now…i am in a relationship..and were planning to get married as soon as my status will changed…do i have a right to remarry without going to court?pls help..
I have been abandoned by my husband for almost 7 years. I dont his whereabout.. can i re marry without a legal separation?
I was Married when i was 18 then separated when i was 21 i had 3 kids then and my 3rd child was only a month when i separated with thier father due to his illness or i may say he was in UERM pshychiatric ward that time for having a nervous breakdown.. Its been 17 years since that happen and i had relationship already and had another 3 kids with my new partner my first born for the second relationship is now turning 14 this march of 2015.. It shows how long we been separated.. Will i be free to re marry nowadays or do i still need to file for annullment to be able to remarry?? My first husband never supported his 3 kids financial or anything.. They havent seen him for 10 years.. Pls i need ur advice in regards to this..
Atty. fred
ived been married for almost 14 years peru nag hiwalay na kmi 1 year after we married some day i talk to her for our annulment she said na ako na daw umayus almost 12 years na kmi hndi nag kikita kc nsa abroad na sya nun ako nsa abroad na din anu pa po grounds na need namin ayusin para mag hiwalay or pwede mag file na ng legal seperation magastos po kc annulment bka i summon pa kmi 2 sa court but were seperate in 12 years na din po or pwede wlaa na ayusin at ma invalid n yung dating kasal namin ty po
my boyfriend is married in 1998 and then they separated in 2001. We had started the relationship in 2002. the wife had another man in 2006 and have 2 children. the wife re marry last 2012 without any court declaration, she didnt even file an annulment. When my boyfriend secure a CENOMAR it stated there that the woman married two times? How can this happen? How can they process their marriage license?Accdg to some friend they married in a mass wedding so its really legit? Can we also do the same thing?is the second marriage already valid if both do the same?
Thank you so much.
hello Atty.
happy new year,i want to ask and want more clarification in my marriage situation i was marriage 1998,I am separated almost 10yrs without any communication in my husband,only i have known some reports from my kids…the main reason why i decided to separate him is….he got angry with me in times if i did not give in to him a sex,he will punch me at any part of my body,curse words like, you fool,you stupid wife,much better to away here i don’t care you…as mom of 3 kids and have sideline business as a sewer at home,its not easy and have time i dont want to have sex in one night,thats the main reason he punch me,second reason,he did not give his income to me even in my personal needs i cannot buy….and 3rd one….i heard him at dawn time somebody called him around 1am,2am girl called him…and i ask whose that girl…he will just said ut is a passenger coz he is van driver until now…so as wife i listening him him with a doubt….after how many years 10 yrs,sufferings this kind of struggles in my marriage,it will end up into a broken marriage,i did not carry all i had experience when in times he punch me in my head..then he will close the room in 3 days he did not allow me to go out…after that days…when i am free again….i am decided to leave at home…and i leave my 3 kids with him…the reason i left my kids with him…i dont want that my kids will suffered hungry with me,no money,no good home,etc…coz that time i dont have stable job….after 5 months i heared that my husband he brought his girlfriend at home and stayed there and shes pregnant…my daughter told me on these and she reported me everytime the girl got angry with them in time they eat some groceries bought by the girlfriend…until the girl deliver a baby boy at the hospital,then going back at home…..after 3 months the baby died…..then atty. 8 months later,the girl break my X husband until now…..the question is…..i don’t want to reconcile my x husband,i dont love him anymore……what should my first step to do on these?.what should i do to have less expensses on these? what kind of legal separation should i do?…..Thank you and GOD BLESS.