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).
- Twin-Notice Rule and Procedural Requirements in Employment Termination Proceedings - June 3, 2020
- When Travel Pass is Needed for Interzonal Travel during Community Quarantine - June 1, 2020
- Can Companies Compel Employees to Work during the General Community Quarantine (GCQ) and Impose Disciplinary Sanctions - May 29, 2020
Hi,
I was married 2002, after a year nawalan na kami ng communication ng asawa ko hanggang ngayon. Though dina kami nagkakauaap o nagbabalitaan alam ko kung nasaan sya at alam nya rin kung nasaan ako. In short aware kami na buhay kami pareho. Until 1 day nabalitaan ko na binigyan sila ng blessing ng pari sa church nila para mag sama as mag asawa. Tanong ko lang po, legal po ba yung blesssing na yun para masabi na annuled na kami.
At kung sakali po ba makakapag file po sya ng anullment na wala na akong consent? Sana po matulungannyo ko.
ask ko lang po sana kung pede rin ako mgfile ng presumptive death for my ex husband…separated na po kami since 2010…di ko na sya napagkikita at wala na rin akong kabalita balita about him…bigla nalang po kasi pag dating ko sa bahay from work eh wala na sya at nagtxt nalang na hiwalay na daw kami he had gf’s sabi ng iba—as in iba iba na ang naging girls nya…sad to say di na rin naman ko naghabol pa na pabalikin sya dahil para narin akong nakalaya kasi pag nakaramdam ng selos o kaya po eh napainom somewhere eh nananakit sya til last 2010 nasakal nya ko to the last breath na akala ko buti nalang may dumating na saklolo kaya nakaligtas pa ako…huling mensahe natanggap ko from him ay magpapa annul daw sya ng kasal namin pero til now ala naman po ako natatanggap na kahit isang letter man lang about annulment kaya til now naka hang pa rin ako…. gusto ko po mapawalang bisa sana ang kasal ko sa kanya at mamuhay ng simple at mapayapa at kung papalarin ay makatagpo ng mabuting tao n hindi tulad nya…pero gusto ko po muna sana maibalik ang dati kong surname legally…ano po mai aadvice nyo sa akin?? maraming salamat po..
Is this possible ?
Hello Atty. Fred, i was separated for over 20 years now.. we are legally married and have 1 daughter. now 22 years old. my husband was lost and no contact with us until now. the last time i heard was he has now two childrens with the other woman.. i like to have an annulment.. gaanu po ba ka tagal to? at anu po ba ang kailangan kong gawin? I need your help.. thanks po.
Dear Attorney,
I have several questions. Are you able to help out on these issues?
1. I have been separated since 6+yrs since 2008, last I’ve heard was that my ex-wife was already a citizen of another country and no idea of her whereabouts. Can I use this as case to file an annulment and declaring her as presumptive death?
2. I was informed by her that our marriage have already been annulled but I didn’t even signed any annulment documents and have even asked me to pay for half of her expenses. Is it legal that annulment will be approved without me signing anything not unless she used the same reason as item 1? Also, I wasn’t given any proof that the annulment was approved and I’ve even verified my CENOMAR from NSO which states that I’m still married. How does an annulled marriage show in a CENOMAR? She even insisted that it was legal and binding and at the same time informed me that I can get a copy from the southern part of the Philippines.
3. In relation to item 2, is there any case that I can sue her in court for not giving me the court judgement about our marriage? Btw, she had also gotten married outside Philippines after having our marriage annulled after I saw her FB page.
GOOD EVE ATTY.. PRESUMPTIVE IS EASY AND HOW LONG MTHE MARRIAGE WILL BE NULL AND VOID?THANX…
To John15
I’m in the very same situation as you are in. I married a Filippina back in Sept 2006 in Manila She too “claimed” that she was not married BIG LIE We lived together as husband and wife for 7 yrs She too was very abusive to me during this time Claiming that I wanted to F**k my own daughter (SICK girl) And always beating on me for what ever reason? Treated me as her “Property” and not as her husband She is Engelsa De Chirsto. I left her in Dec 2013 But not before I helped her with her cancer that she developed. I paid for her treatments and Doctors bills BUT was ready to leave as soon as her treatment was over with and making sure that she had a chance on living thru this Her Dc told me that she should be alright so I left and left her with a apartment building leaving her with some income. Even this did not stop her from filing a complaint with immigration on Undesirable Alian This can get one kicked out of this country So I did some research and found out that she was “STILL MARRIED” to another man I did a CENOMAR (Certificate of NO marriage) and did a search for a Death Certificate and found that he was still alive. So I filed a Bigamy charge against her Now we are in court.
What I would do is to to a CEMOMAR and then a death certificate search IF there is no death issued then you can bet the other spouse is very much still alive. YOU can file Adultery and bigamy charges against her She lied to you from the start. The law is very clear on this You MUST finish the first marriage BEFORE you can remarry Presumption of death is NOT GOOD enough for remarrying It must be file with the courts within 10 day after the hearing and the Presumption. They have only 10 DAYS to file this, after that it must be restarted all over again.
She committed bigamy by marrying you. She NEVER told you about her marriage to another man. AND she never file for a court order for a Death Certificate In other words she committed the bigamy crime, not you. She can go to jail for that in this country. That’s the reason why she is blaming you for all of this Trying to PASS THE BUCK onto YOU. It will cost you about P90K to P180K for a lawyer But I sure as hell would get one ASAP, after all she KNEW she was married and KNEW that she must finish the first marriage BEFORE she can remarry
She is trying to get out of going to jail and taking all of your property If you have property with her. I did and will get all of that back. GET A LAWYER It will save you more than just money
jhigs
No she can NOT marry She must wait the 7 yrs to file for a Court Order Death Certificate or 4 yrs for Presumption of Death then file within the 10 days, and this is NOT GOOD enough But she can file for annulment or Declaration of Nullity and wait the time period to pass.
Good evening po
Atty. Fred,
I was married since 2008 with an American guy. But we got separated 2011. Since July 2011 I have never heard of where he is now. I want to remarry again. What should I do.
Good day!!!
When u read this I got interested to ask hope u can answer me .. I marriage my husband year 1998 and after I gave birth to my second child our relation is on and off until we don’t have communication and I found out the he got marriage again year 2007.. It’s been 13 years we don’t communicate it’s other and he doesn’t give any support to my kids .. It is possible that I can ask to the court for a declaration of presumptive death of the “absent spouse” and what gonna happen to my record in NSO please help me what I need to do… I don’t have money to file an annualment .. Thank you and more power
Hi! I’m single, 21yrs. old, never got married. My fiance, 61yrs. old, was married in Manila in 1980 & is still on PSA (NSO) record file. Due to personal differences, & while he was residing abroad, she left their residence in 1987 with their two children & they lost complete contact up until this day! Neighbors & former co-workers believe she got married to a Japanese national & has since moved to Japan. We can’t afford an Annulment process. Kindly advice any cheaper, reasonable or affordable means. We’ve been advised about filing Preemptive Death or Abandonment, but we don’t know how to go about the entire legal process nor the cost. We’d appreciate hearing from you. Thank you.