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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Hi..
I got married 2007, but we got separated 2010 because of his excessive jealousy. He does not allow me to even go to my parents house or even have some time for myself with friends, gets jealous with my girl friends, we only had 1 cellphone back then to make sure all conversations were monitored. It came to a point where we fought so hard and i told him i cant stand this relationship anymore, and he hit me. I went away, after getting back on my feet, rented an apartment, i took my daughter with me. We talked and i told him that i dont want to be with him anymore, he agreed, he said do whatever i want. (This all happened way back 2010) since then, I am the one maintaining me and my daughters home with my father, paying the bills.. everything. Since we had an agreement, to live separately and not get into each other’s business, i let him see his daughter once in a while, actually since he is a teacher (my teacher back in highschool, and still is a teacher) we agreed to let our daughter go to the same school so its not that expensive due to the priviledges of his employment. Now. Its been 7 years since we got separated, i want it to be legalized. Earn back my family name. I need your expertise. How do i go about doing this since its been years now? We even consider ourselves only an acquaintance.. will it be easier since both parties agreed to go on with their lives? Thank you.
Good day can i ask about what will i do i want to married another woman coz my wife is missing for 8 years i dont know where sge is now?
An absent spouse has filed for reappearance and affidavit duly recorded and annotated by Local MCR and forwarded to PSA. What action should the PSA take? With regards to status of the spouse of subsequent marriage, cenomar has been asked by employer. What actions should be taken by spouse of subsequent marriage?
what if the wife commits bigamy and she even have another two children from different man, they were separated for 15 years. can the husband marry another woman?
this is my case.. i want to marry this man but i’m afraid that he cannot marry me due to this s ituation
Magandang araw po attorney, gusto kolang malaman Kong anong kinahinatnan pag mag file ako ng presumptive death of my husband.alamkong buhay sya at alamkong saan sya nakatira.
Ngunit dina sya nag bibigay suffort saamin my 3 kids po kami.
Gusto kong magpakasal ulit kay naisipan kong mag file ng presumptive death sakanya kasi madali lang.
Tanong kolang po anong naghihintay saakin pag nalaman nila ang ginawa ko sa x husband ko.?
Maaristo po baako at mabibilanggo?
Anong case ang pwedi Kong harapin Kong sakaling malaman nila?
Hindi ba ito dilikado sa buhay ko at mga anak ko?
Pls po tilongan nyo ako.
Salamat.
i was divorced for my ex Japanese husband 2009. i never heard anything from him anymore after that.. 2015 i asked for his family registered in the city hall of his place to know his status. he was re married and have child.. what kind of petition i should asked for this? acknowledgement of divorce is really expensive i can’t afford to support that.. please give me some idea if i could file a presumptive of death of a spouse for subsequent marriage? article 41 no.2?.. please kindly response?
hello every one
im gene hingi lang po ako nang advice i got married since 2014 ng isang lalaki from russian since umalis cya sa philippines pgkatapos ng ksal namin hindi napo cya nakipag comunicate sakin at hindi narin cya bumalik 3 years ago na ano po ang gagawin.ko pwde po ba akong mag asawa uli….dahil sinubukan din naming sumulat sa address nya pero bumalik po ang sulat at hindi natin makontak number nya sana po matulungan nyo ako sa problema ko thanks po
gene
Good day Atty,
I would like to ask,
If in case there is reappearance (in relation to Art 41 and 42 of the FC), will the child of the subsequent marriage be rendered illegitimate given that the subsequent marriage is terminated and the previous marriage is at work? Also, what will happen to the fruits, properties and proceeds acquired during subsequent marriage in case of reappearance, will it belong to the community of the previous or subsequent marriage? Thank you for responding!
Hi Everyone,
Tanong ko lang po (sana meron makabasa nito na same situation ko) nag asawa po ako last 2003, 2 days after he left seeking a job, iyon ang sabi niya sa akin. From that day he left, he never show up, ni ha ni ho wla akong narinig up to now. 14 yrs na po, but last 2014 nag file na ako ng presumptions of death at hanggang ngayon wla pang disisyon ang family court. Wla po kaming anak. If ma grant po ang petition ko ng family court, I can’t re marry with in a year, Tanong ko po, that decision is only applicable here in Philippines, how about if mag pakasal sa ibang bansa, kahit wla pang 1 yr, pwede po ba? Please answer me.
Thank you..
Hello atty.
May live in partner po ko for almost 12years.
Now i find out his dating other girls.
If incase we cant fix the problem i know po na hati kami equal rights sa mga napundar na gamit mula nag sama kami.
Ang question ko po may right po ba ko ag file ng case dahil sa stress at depresion a naranas ko?
Or anycase na pweding e file?
Kasi ung girl eh gusto nya mag hiwalay kami ng parner ko at yayain nya na mag sama sila mag buntis para daw makaalos ng bansa.
In short pinapatulan nya ang partner ko dahil habol nya ay pera lang.
Lalo not nasa ibang bansa ako?