Can someone remarry even without going to court due to absence or separation?

Could someone automatically remarry after being separated, or when the other spouse had been “absent”, for several years? There are a number of questions along this line that were posted in the Forum. While there’s already an initial discussion on this, the question keeps cropping up, so let’s put this issue to rest once and for all.

The confusion appears to be based on Article 83 of the Civil Code, which reads:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any other person other than such first spouse shall be illegal and void from its performance, unless:
xxx

(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of the contracting such subsequent marriage, or if the absentee is presumed dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.

If you stumbled on this provision, you may have this idea that a spouse can remarry even without securing a judicial declaration of presumptive death. In other words, there is NO need to go to court and it’s enough that any of the following circumstances is present: (a) there be no news that such absentee is still alive; (b) the absentee is generally considered to be dead and believed to be so by the spouse present; and (c) the absentee is presumed dead under Article 390 and 391 of the Civil Code.

This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides:

Art. 41. A marriage contracted by any person during the 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 had 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 provision 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.

As the law now stands, a married person must, for purposes of remarriage, file the necessary action in court and ask for a declaration of presumptive death of the “absent” spouse. The crucial differences under the Civil Code and Family Code provisions are:

1. Under the Family Code, the time required for the presumption to arise has been shortened to 4 years.

2. Under the Family Code, there is need for a judicial declaration of presumptive death to enable the spouse present to remarry.

3. Under the Family Code, a stricter standard is imposed: there must be a “well founded belief” that the absentee is already dead before a petition for declaration of presumptive death can be granted. A married person must conduct a search for his missing spouse with such diligence as to give rise to a “well-founded belief” that he/she is dead.

If you need an extended discussion on declaration of presumptive death, please click here to read the previous article entitled: “Presumptive death of a spouse for subsequent marriage.” On the other hand, just to be clear: no matter how long a spouse is “absent”, the present spouse CANNOT remarry unless there is a judicial declaration of presumptive death. (Reference: Republic vs. Nolasco, G.R. No. 94053, 17 March 1993)

235 thoughts on “Can someone remarry even without going to court due to absence or separation?

  1. Jesywin

    Atty
    ask ko lng po pede na bang magpaksal uli ang lalaking 8years ng hiwalay sa asawa if may separation agreement sila mg dating asawa ?

    Reply
  2. shuchi

    ask lang po kung may bisa po b magpakasal kami kahit hindi pa annul. hiwalay napo kasi yun bf ko 17 years na hindi cl nagsasama. sabi daw may gagwin daw pra mkasal kmi s cmbhan o s civil. sure daw yun kc tested na kesa daw magbyad p ng malaki.

    Reply
  3. Jean

    Dear Sir,

    Question ko lng po, if the couple was already separated but not leggally. They were separated for more than 15 years. The wife has already a family with 3 kids and was married to another man. They got married in another country and both are filipino. Will the first husband can file to void their marraige or need parin mag file ng annulment.

    Salamat po

    Reply
  4. clarizza

    sir good morning
    i was married to a korean citizen but we are divorce in south korea last 2011..what will i do..anu pong kailangan ko nalang gawin bukid sa annulment wala din po kasi akong budget para duon.e my plano na po kasi akong magpakasal ulit sa isang pilipino thank you

    Reply
  5. Hazel

    Hi attorney
    I am separated for ten years and I have two kids my ex husband now got live in partner and had two kids . And they live together. Us of my part I got my foreigner boyfriend now and we in relationship for almost 3 years and we planing to get married in can I get married him evenow we not go annulment please advice me aND what things I should please help me
    Your throughly respectful hazel

    Reply
  6. charl

    hello, just want an advise.. were been lived in 5 yrs, & dicided to got marry 2009 in civil, We had 2 daughter ages 5 n 3, after 1 year year 2010 my husband re married with her 1st live in partner and had son ages 9 dat tym & daughter 4 yrs old. (meaning sabay kami kinakasama nya dat tym).
    Bcoz im inlove with my husband.. eventhough I know the situation.. I still aaccepted the situation.. 1 week for me.. and 2 -1month for her. Even sometimes, Hes not even seen him or give any support for my kids. I thought that tym that Im her mistress.. we been long our situation for more than a year.. pa unti unti ang time nya sa amin,, hanggat halos di na nya kami inuuwian. Until 1 day I decided after.. (after 2 years) 2011.. I decided totally seperated.. no communications at all.
    After a year 2016, I found my second love.. He is widow (for 3years) .. and were focusing for re-married. What will be the advise you will be given..
    Can we have chances to re marry my 2nd love.. even Im the legal wife of my ex husband??

    Please advise.
    God Bless you Atty!

    Reply
  7. Ayah

    Hi,

    I got married last May 2011 with my Egyptian husband, and i was pregnant at the time. The marriage took place at the Manila Golden Mosque in Quiapo Manila. It was a secret marriage that time as none of my family knows about it. After the marriage, my Egyptian husband went back to Dubai because we are both working there but i have left my job prior to flying back to Manila to get married. So, after the marriage, my Egyptian husband told me that he will arrange my husband visa so i can go back to Dubai. But it didn’t happen. And slowly he stopped communicating with me and he don’t answer any of my calls and messages that put my heart in so much pain considering i was pregnant that time. I just started to move on and to accept he is already gone because my pregnancy is already getting affected. Then, it was November 13, 2011 when i deliver my baby and i have thought of sending him a message to inform that i deliver his child. After that, little by little he start to talk to me again. and in the end, he sponsored me and my son to go back to Dubai. It was February 2012 when me and my son flew to Dubai. we stay together as family not until August 2012. Because he resigned from his job so my and my son visa got cancelled. He said he will find a job but he hasn’t got any so he flew to his home country Egypt and leave me and my son alone in Dubai. The last word he said to us is that, he is going to find a job in Egypt and then he will take me and my son, but the opposite happened. since he left me and my son, he never communicated at all anymore, even no greetings on the 1st birthday of our son. He doesn’t even send even single fils for his son. Since he abandoned us, i was alone raising my son.

    So, after all that, i have met an American guy recently, year 2017. We want to get married, but i still have an existing marriage record in the NSO.

    Can you advise what is the fastest way for me to remarry? and is that possible ?

    My marriage was done by just someone from the mosque, they called IMAM, it was a Muslim way wedding. Not civil, not church, it was just a muslim way wedding that didn’t even last 30 minutes.

    Please help what i have to do in this case so i can remarry again.

    Reply
  8. Sayali

    I m staying separate from my husband for the past 8 years as he is not willing to give me divorce and is just keeping things lying.Now I want to get married again .can I marry ?will my earlier marriage be null and void

    Reply
  9. shara

    i was married in 2012 and my husband is a US citizen, he died almost 4 years ago. i want to know what to do if I’m going to remarry. i have his death certificate in my hands provided by the LA county that will prove that he passed away. i need help regarding my case asap. thank you

    Reply
  10. Annie

    mag 7years na po wala akong communication sa asawa ko dahil nag decide po kmi n maghiwalay n kya lng di p po kmi legally separated. Sinusustentuhan nmn po nya anak nmin ngppdla sya s nanay ko. ano po b pde kong ifile para mapawalang bisa n kasal namin gusto ko n po kasing maging legal pag hihiwalay nmin. Salamat po

    Reply
  11. sweetjean

    Hi Atty. Fred,

    Good Afternoon!

    I want to seek legal advise from you, I have been married and separated from my husband for almost 11 years. From then I don’t know where he is right this moment if he’s still alive, living with another woman or what. My question is can I be married again without an annulment? I have a bf now and were planning to get married.

    Hope to hear your advise as soon as you read my message.

    Thank you so much!

    Reply
  12. Marife

    Dear Atty Fred,
    Ako po ay isang widow at may isan g anak na lalaki 11 y/o. Isa po akong titser may nakilala po akong Australian at gustong ipakasal ako pero kasal sya dito sa Pilipinas noong 1989 ngunit ngdivorced sila doon sa Australia. Ang wife nasa USA ngayon. May mga anak sila legal age. Pwde po bang mag remarry ang lalaki dito sa Pilipinas?
    Please reply. Thanks

    Reply
  13. Agnes

    Atty.fred…
    I was married last 2000. Nagsama lang po kami ng 5yrs but not everyday or everynight sya umuuwi sa bahay. After 5yrs naghiwalay kami the reason hindi kami magkaintindihan sa isat isa for supporting my daughter’s need everyday. Since 2006 wala na akung balita sa kanya at ni walang suporta sa anak namin. Ang tanung ko po…Anung case to file para po mavoid ung kasal namin? Tnx Agnes

    Reply
  14. Lyn

    Atty.Fred
    Hi po,yung husband ko ay ikinasal sa first wife niya,almost ten yrs na po sila walang communication pero ng nalaman ng first wife niya tungkol sa amin nag habol po ang first wife niya, pero before po naghabol ang first wife niya nagpa secret married na po kami, legal po ba ang marriage namin?
    Pls.help.Thank you..

    Reply
  15. alu ben

    hello po!

    scenario: 7 years separated because nagloko si mister, nambabae nakabuntis. tamad, ayaw magtrabaho. nag drugs din, bakit ko nasabi , pinagnakawan niya ako pati ang pamilya ko. walang demandahan na nangyare kasi nakakahiya makaladkad pati name namin ng mga bata. now, ex husband living with new partner and with kids. me on the other hand busy raising our 2 kids alone, without any support from him.

    question: what can i do to cut the marriage vow? which is cheaper? annulment? legal separation? or nullity of marriage? pwede po ba i apply ang presumptive death, tama po ba?kahit hindi naman po ako mag aaasawa ulet? i don’t want to use his surname anymore, even the kids are complaining about their surname. gusto ko din po mag ipon ng property habang may kakayanan pa ako mag work at ayaw ko siya makihati pa.

    pa help po. salamat.

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *