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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ako ay nabyuda noong january 04 2018 pero d kami kasal at wala kming anak nagsama kmi sa loob ng 27 years at malapit na rin po ako mag senior citizen 54 yrs old n po ako.ang aking kinakasama ay kasal s una at may tatlo silang anak at maliliit pa ang mga anak nila ay iniwan ng asawa nya sa magulang ng asawa ko at palipatlipat lng sa amin ang pangangalaga ng mga bata. ang una nyang asawa ay may kinakasama din.isang ofw ang asawa ko nagbakasyon lng sya noong dec.02 at ang balik nya po sana s saudi ay january 15.2018 ang tanong ko po ay may karapatan po ba ako sa mga benifits nya kahit hindi kami kasal.nilalakad ng mga anak nya at una nyang asawa ang benifits nya sa owwa at sa sss.sana po matulungan nyo ako.maraming salamat po.
What forms or documents must be filed for presumptive death
Good day, I am hoping you can help me to answer all my questions,I was married March 14,2011 and end up June 14,2012,…after we separate he never send any aid to our kids.the last time I new he work in korea,his cousin told me that he work abroad,that’s way back nov.12,2012 his cousin give a phone number of his company in korea,and a few names of his friends that I can ask,we’ll one day I called the number that his cousin gave to me but suddenly the company told me that their is no longer allen Paul taga ma working in their company.i never give up I try to call one of his friend in korea bit suddenly they don’t have any news about him,I try to check poem if they can relocate or find him but suddenly a person I talk in poem told me that they can’t locate him.its been 6years now and I can’t find him anywhere…my question can i have the capacity to file presumption of death so I can start my new life and be with the person I love since I’ve tried to find where he is but can’t find him.thank you and godblesd
Hi good afternoon
I would like to ask i have 2 registered NSO marriage certificate is my 2nd will be valid? I have not or my 1st wife declare any written understanding to be separated nor filing it in court to declare it. We got married on 1998 and have verbal agreement to separate ways on 2004. My 1st wife move to other country same yr and became citizen on 2007. Then on 2007 I got married to the 2nd woman. On the 2nd marriage I apply on th Civil registrar a day before of our marriage to my 2nd wife and civil registrar did not require a Cenomar and seminar and court order l.. they just ask for birth certificate and filled up the application form..
Can 2nd wife file a case on me? Due to our marriage certificate was registered on the NSO?
Hello, just want to ask… My husband was married before and I did not know about it.. It was a very short lived one as his first wife went abroad 2 days after the marriage. There was no communication between them after she went away, then after a year, he heard she already married a foreigner. After almost eight years, we met and got married. After a year, I found out about his past but decided to go on with him. Now, we are already 13 years together, and we decided to have his previous marriage annulled. My question is, is our marriage valid after his annullment? Thank u very much.
Hi. I was abandoned for 12 years and now wish to remarry. I did not file any search in police for him since I know in the beginning that its his intention to abandon me. do i still qualify to file the presumptive death in court?
Atty.8yrs n po hiwalay, Wala communication, Wala din support sa aking anak. Di ko din po Alam Kung nasaan sya. Ano po gagawin ko para ma pawalang bisa kasal ko? Thank you
Hi Atty,
Good day
I have an annulnent case filed in 2017.
Up to now I have not been presented to the court as the petitioner because the hearing is always being reset.
I feel so very frustrated tvat every time there is a schedule of hearing and I will be presented, there are different reasons for reset like judge got sick, changing of judge, prior appointment of judge in otber RTC, .
Are these reasons true and valid? I feel very disappointed and frustrated about these.. i woukd absent myself from work just to attend coachi ng from my lawyer and i paid gard earned money to my lawyer just so I can have the annulment..
Me and my y boyfriend is not getting any younger that is why I wish that the court proceedings wilk really happen according to schedule.
How long does it take before an annulment is granted?
Thank you
Bluegirl629
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Sir,pak advise. Sa pagsasama namin ng asawa ko ng 30 years abroad may isang anak po kami nakabili kami ng mga lupa at napatayuhan namin nga apartments for rent. Nagbakasyon po asawa ko at biglaan na lang po namatay. Pinag uusapan ng mga kapatid ang mga napundar namin at biglang sinabi sa akin na mayroon daw unang asawa. Sa buong akala ko wala naman akong nakitang signs na may asawa noon dahil free naman kaming nagbabakasyon, wala man lang
babae umaway or nag complain na kasama ko ang asawa niya, at wala naman dumating noong libing niya. Nagtataka po ako at ito na ang mga kinakalat sa mga tenants sa apts. at isa sa bayaw ko ay nag permi nang tumira sa Apt. dala pa niya mistress nya na di ko alam. Sinasabi ng bayaw ko sa mga tenants na ilalaban nya daw na pangalawa lang akong asawa ng kuya nila para ma pasakanila ang lupa namin. pls.advise po.