The Family Code clearly provides that a court declaration of presumptive death of a spouse is indispensable before the other spouse may marry again. Failure to comply with this requirement results not only in a void second marriage, but also opens the guilty spouse to a criminal charge of bigamy. The requirements for the declaration of presumptive death are discussed below.
Article 41 of the Family Code reads:
Art. 41. A marriage contracted by any person during 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 has 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 provisions 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.
In other words, an absence of 4 years, it being unknown whether the other spouse is still alive and the present spouse has a well-founded belief that the missing spouse is already dead, is a ground to ask the court for a declaration of presumptive death (this is a summary proceeding, not a special proceeding). The 4-year period, however, is reduced to 2 years in the following circumstances:
- 1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for [two] years since the loss of the vessel or aeroplane.
- 2. A person in the armed forces who has taken part in a war, and has been missing for [two] years.
- 3. A person who has been in danger of death under other circumstances and his existence has not been known for [two] years.
There are 4 requisites for the declaration of presumptive death under Article 41 of the Family Code:
- 1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code.
- 2. That the present spouse wishes to remarry.
- 3. That the present spouse has a well-founded belief that the absentee is dead.
- 4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.
As mentioned above, failure to seek a judicial declaration of presumptive death opens a party who contracts a second marriage to a charge of bigamy. The reason is this –
In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse after the lapse of the period provided for under the law. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. Indeed, “men readily believe what they wish to be true,” is a maxim of the old jurists. To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals. Only with such proof can marriage be treated as so dissolved as to permit second marriages. Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance, namely, a judgment of the presumptive death of the absent spouse.
To be sure, this appears to be a relatively easier way of contracting another marriage. The problem, however, is that the second marriage is easily voided by the appearance of the “absentee” spouse (void ab initio or void from the beginning if both parties to the second marriage contracted the marriage in “bad faith”). The Family Code provides:
Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.
A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.
So, is a judicial declaration of presumptive death better than seeking an annulment or a declaration of nullity of the second marriage? There are no hard and fast rules. Suffice it to state that “the automatic termination of the second marriage upon the reappearance of the absent or missing spouse is a risk that the paties to said marriage knew they were taking when they entered into such marriage, so that if it does happen, they have no reason to complain” (Justice Alicia Sempio-Diy, Handbook on the Family Code of the Philippines).
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Hello,
Atty. Fred,
Sana po matulungan niyo ako ano po ba dapat kung gawin i was married last december 2006, im married with american then after that hindi na cya bumalik hangang sa mawala na communication namin.. so ini insist ko po na marriege our marriege did not really exist kc pag katpos po ng wedding namin bumalik na cya then hindi na cya bumalik..ano po ba maganda dito para po ako makakuha ng legal separation…and then nagkamali ako kasi pinasa ko agad sa NSO yong marreige certificate namin from local registrar kaya nahirapan na po ako..salamat po
More power to you..
Cezz
hi atty!
i hope can give me good advice about my problem, im been separated since 1996 and last year i filed my marriage annul, but still dont know what goin on, my lawyer said the judge he did not sign so we did get hearing about my problem,i have already summons to publication to my husband, because since we separated we dont have communication and he never give support our kids, and also sine we separated i dont know where he is, please help me what to do this my problem, i want my freedom to be happy. thanks i hope you can read this my message soon
Please help us!
My girlfriend’s husband in Philippines left her 16 years ago and has not been in communication with her or their daughter during that whole time. If a court grants a Presumptive Death Petition and we move to the USA and get married, what happens if 1st husband shows up again? If she is already US citizen then what?
Thanks so much!!
Hi Atty.
Mag ask po ako ano pwede gawen. I was married to a Japanese last 2009 and no communication from him since 2011. wala na din po ako balita sa kanya totally. Since kinasal kme d napo xa bumalik sa pinas at on off ang tawag nya until 2011, huling balita ko my sakit un at tas totally wala napo after nun.
My BF napo ako ngaun at gusto ko po namen mgpakasal, kaso dahil married status ko d po namen magawa.
hello!when i read this article i got interested…i also have a problem with my boy friend…he was married since 2003..they got a child…then after that the girl has another men..they also have a child…the problem is, my boy friend don’t want to go back to his wife because of that reason..they’re not living for almost 4yrs and half now…the question is, how can my boyfriend have his freedom or how can he be annulled to his wife?hope you can help me with this problem…we want to get married…thanks a lot…
so i guess the only hope we can have is just to wait for the first wife to be dead by that time he can have his freedom back and remmarry again
hi atty fred…
my now fiance finalized his divorce here in America, he and his wife got married in civil court in the philippines. here in America they are divorced and i know that there in philippines, they are still married. for almost 5 years now, they have been seperated with different addresses and dont contact each other. if information is provided that they were no longer living together for 4 years plus, could an annulment be persude? thanks you.
hi sir i am seperated for almost 22 years ive got married in 1983 of the age of 17 gusto ko po n mapawalang bisa na yung kasal ko no communication at all gusto ko na rin po magpakasal ulet wat will i do sir pls advise thanks..
sir just to add…we had seperated for 22 years…we had no communication since then..gusto ko po sana n mapawalang bisa n ung kasal nmin cause iwant to get married again wat will i do sir..he had his oun family now and ihad my oun family too can is this long a long term if i apply for annnulment wat is the best thing that i will do sir…pls advice me sir and god bless…
nabigyan na po ng decision ng court last sept 2008 ang petition for presumptive death that i filed last year…nabigyan na po ako ng atty ko ng copy, i just want to know , gaano po ba katagal bago ko makuha ang sinasabi nilang certificate na katibayan na anulled na ang previous marriage ko?and kelan ko po ba most possibly pwede i check sa NSO na annulled na nga ang marriage ko? im planning to get married again and i want to clarify everythin before i take another step.im gettin married to a US citizen and evetually will file my US visa. maraming salamat po and im hoping for your reply
i just have a question and i would like to address it to anyone who can answer this….i filed my petition for pressumptive death of my husband in the PHilippines last april 2008 and i received the RTC decicion last Sept 2008..My attorney told me to wait for the decision of the Court of Appeals before i can get a certificate that proves that the court has granted me my petition.Its been 10 months now and still haven’t heard anything about it from my attorney and all he can say is that to wait.I want to know, how long does it really or usually take for the Court of Appeals to release the decision on a Petition for Pressumptive Death case? I want to start a new life with my fiance for 3 yrs.Im hoping for a reply on this matter…thank u so much
Dear atty:
I was once married with a British national July of 2006 but ours was a troubled marraige. He was “foul-mouthed and blasphemous” and abusive. There are even times that he treated to kill me. There are many times that he laid his hand on me. Months later we separated, I was 7 months pregnant then. He never supported me from pregnancy until now (our daughter is 2 years and 5-months-old. Just recently he comes and visit my daughter. He had a live-in partner since we separated some 2 years ago with whom he had a one year old son. At the moment, he was detained at immigration office in Davao because his live-in partner filed a case against him because he was abusive towards her too.
I also learned that he lied a lot about himself. To name a few, financial status and habitual alcoholism.
after more than two years of separation, i meet a special someone who expressed desire for marriage.
What should I do with our marriage? Should I file petition of annulment of marriage? Based upon the few sitautions I stated above, will that be enough grounds to pursue with the petition?
I hope you could answer me atty. Thanks and God bless.