Presumptive Death of a Spouse for Subsequent Marriage

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.

Declaration of Presumptive Death for Purposes of Remarriage in the Philippines

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).

Atty.Fred

80 thoughts on “Presumptive Death of a Spouse for Subsequent Marriage

  1. lonely_girl9177

    dear atty,

    I have not seen my husband nor contacted me and my kids for 5 years now and he has gone AWOL on his work, can this be enough reason for me to file for presumptive death? how much it will cost? can i ask for a public attorney at PAO to help me in filling…i don’t have a job and i am only depending on to my parents…please sir help me. i hope to hear a reply on this matter.

    Reply
  2. jessee

    Dear Atty.,

    Are the charges or court/litigation fees in the filing of presumptive death of a spouse as exhorbitant as that of the annulment’s?

    Kindly provide me a figure at an average or a range so I could prepare for this.

    Thank you very much!

    Reply
  3. therese

    hello.

    i wanna seek advice for my case.

    i filed for a presumption of death of my exhusband may 2006..

    last year (september)when i got an order from the family court that my ex was pressumed dead.then november 18,2009 i got the certificate of finality.

    would it be posible for me now to marry my american fiancee?can we applied for fiancee visa?

    please help me…

    Reply
  4. therese

    to :cjkulot19

    what type of decision did you received from the RTC?

    if i were you..i better make the follow up not only to your lawyer but also to the branch/court. that’s what i did on my case.

    after the last hearing with my 2nd witness (that was may,2009) 4months later i got my court order then november 18,2009 when i got the certificate of finality from the family court.

    my case almost took 3 years 🙂

    Reply
  5. therese

    aiza,

    the certificate of finality will be issued on you by the family court 10 to 15 working days..prior to the date received by the office of the solicitor general of your court order.

    hummm,we both have the same question dear to atty.:)
    when will it be posted to the NSO? what will the nso do on our status?will we be back to single?or widow?

    im awaiting a reply to atty fred…

    Reply
  6. mj0509

    Hi atty
    Is is true na if 7yrs na no communication sa asawa ko ay pde na ulit mgpakasal?
    Nag pa annul kc me nung 2008 and sad to say denied me ngaung 2912 ko lng nkuha result hndi dw kc mgaling atty ko.i dnt knw if that is true sinced 2006 pa kc kmi wala comm.ng taiwanese husband ko and i dnt know where is him i try to col his cp but girl answer wrong nber dw i cnt move on with my life dhil sa ksal pko sa knya at denied pa annulment ko ang grounds ko ay pshyco.inc anu po b pde ko gwin?hope u can answer me pls tnx..

    Reply
  7. jpv

    my husband and i have not seen nor communicated in 6 years, in fact, we did not really live together as husband and wife, he simply visit our baby 3-4 times a week and when she was 9mos old, he neither visited nor called me after a very heated argument regarding financial matters and his consistent lying. As much as I would want to file legal separation/divorce, I cannot do so because I know it would cost a lot. Thanks for your advice and God bless!

    Reply
  8. Pingback: Annulment, Divorce and Legal Separation in the Philippines: Questions and Answers | AttyAtWork.com

  9. jhigs

    Good morning atty. my friend is already married with two kids but since the husband go to abroad they didn’t have any news after the last conversation they had for almost two years now. is there any possibilities that my friend can remarry again even after 3years more from now. my friend tried to contact the husband even the co member of the husbands family but they keep on saying that even us our brother didn’t call us.

    thanks and more power atty.

    sincerely yours,
    jhigs

    Reply
  10. Janice

    Atty. Fred Hello I wanted to ask about my case

    I was married in 2011 to an american but at 2012 we split up because he cheated me, in fact I sued him, and he was detained at NBI together with his mistress after 11 months of our marriage. and I withdraw the case actually coz I pitied on him but after he got out in the jail we split up and his last message to me is that his on the way to USA and would never come back again in Philippines and since that until now we have no communication at all, that’s 2 years and 5 months now. tried to email him so many times to divorce me on his country since he could do that as citizen on his country as far as I know but no even single reply I got from him. So now, could I file an annulment using my previous case against him (I have the copy of the case I filed against him the Rep.Act 9262 case) and him not contacting me or seeing me for more than 2 years as a ground? or could I file declaration of presumptive death now? and if ever how possible I’ll be granted? hopefully you could help me as I really wanted freedom for non-existing husband of mine.

    Thanks,
    Janice

    Reply

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