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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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

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

  1. jhenn

    i just want to ask because my bf got married on year 1993..and it was a shotgun wedding and and been separated for 15yrs.. and he never expected that it was registered. and when we checked in NSO he was married.. is that marriage still valid, even if they had never seen each other for 15yrs..? or he still have to file for annullment? i need your advice… thanks

    Reply
  2. confusegirl

    magkano po ba gastos kung kukuha po ako ng declaration of presumptive death of absent spouse? 7 years na po kasi nakakaraan nung huli ko pong makita asawa ko..

    Reply
  3. oshi

    Dear attorney,

    OFW ho ako na may permanent residency d2 sa europe. waiting ho ako sa nationality ko at declared na married sa mister ko. on the rock kmi ng ilang taon but we agree na mag usap sapag uwe ko last dec 2010 but he didn´t show up. i tried to call him pero binastos ako and he hang up the phone yun ang last na pag uusap nmin. 2 mos ago i just found out na nagpaksal sia sa pinay na american citizen na. bale 2010 pa sila kinasal nuon 2nd nia. at sinabi nila sa friends and relatives na annulled ang ksal nmin. almost a year nrin na sia ay nsa us. tanong ko lang po since bigamy ang kaso nia puede ho ba na ma ideport sia dhil narin sa falsification of docs. if proven na may MC sila sa NSO may effect ho ba ang ksalan nila since american citizen yun girl at declared na married ako sa knya d2 sa europe. may conjugal properties at sa kanya lahat naka name, yun loan nmin may marital consent ho yun nang i apply nmin sa pag ibig later na found out ko na pinalitan nia ang docs ng married to single contract. yun ibang transaction nia ay single nadin b4 ng nd marriage nia. maling information ho ang sinabi skin ng family nia at nakakuha ako ng ma photos nila na aware sila sa ksalan naganap. ano po ang unang dpat kong gawin.

    Reply
  4. chadleen

    dear sir,
    as for me,, we got married on june 1993. when he was 18 and i was 20.. first @ manila city hall w/o parents consent then come october 1993.. parents decided to have a church wedding for us..we live separately after a year.. he visits me and our son during weekends but he stayed at his parents house.. in 1999.. we decided to end the marriage and live separately since then w/o communication…i heard he’s already living w/ someone and i too have a new relationship of my own.. is our marriage null and void? applicable po ba sa akin ung article 83 ng family code? its been 13 years na kami hiwalay.. pwede po ba ako lumapit sa PAO for help? since wala po aq permanent na work at ang partner ko po ang nagwwrk for us..

    Reply
  5. creezie

    Dear Sir,

    A very good day!

    This is regarding about my marriage on 1999. That from year 2001 up to present me and my two son’s was been abandoned by my husband. No call, no letter, No Supports nothing at all. He was in japan when we lost connection with him but after few years he comes back to philippines but never visited us or even call us. The sad part that I discovered was he was hiding from us, so I don’t want to waste my time with him, I have my kids to look after and prepare for their future, then I decided to move on alone with my kids, I was a single mom and proud that im supporting my kids alone and surviving. They are both studying and doing well, my parents were looking after them as I have to work abroad to support them. What I want to do is to make a legal seperation with my husband. Lots of my friends are telling that my marriage is already null or void as my husband abandoned us for more than 11years, but will that be possible that my marriage is already null or void after 11years without any communication from him? I want everything to be legal that whatever I will do in the future he cannot go behind me or to my kids and he cannot bother us. im just thinking if i can do even a legal separation, will i be able to get married again in future?. Please help me with this matter and can I do this matter even im out of country? I might come this year for 30days vacation. I will greatly appreciate it if you can help me or give me a advice.

    Awaiting for your reply.

    Reply
  6. pauline khyle

    Dear Sir,

    My husband and I are not leaving together for 5yrs now. He is not supporting our kids and not even bothering checking them. But his parents,who are in New Jersey are continuously sending support specially materials things to my kids. We have 8yrs old and 6yrs old daughter. Our youngest is almost 1Omos when we started not living together,but before that happens he was asked by my mother if there is another woman and he clearly said yes.And told my mom to take me and my kids because he can’t give whatever we need and he can’t leave the girl.

    Last year I intended to discussed with him about our arrangement with our kids, he replied that we will talk once he is settle because he said that time he doesn’t have work and cant even raise himself. Since then he didn’t email back.

    How can I consider that we are legally separated? Can I remarry? What are the needful so I can have a new life, me and my kids. As I wanted to have a complete family,so if there will be someone who can accept my kids and offer marriage,what can I do? How can I say yes in this kind of situation I have? Please I need your legal advise.

    Reply
  7. reyes

    atty.just want know kng pwede pba akong magpkasal ulit?im already 10 yrs seperated with my husband and no communication and support to my daughter.Im working now in abroad to support my daughter in all her needs,since i came here to abroad i use all my documents as a single status even im married in phil.do u think i can marry again in other country except phil?

    Reply
  8. Lyn

    Good Day to all.
    I got married to a British national in NOV 2006 in angeles pampanga, and after only 3 months he left after we had argument about his real person and never saw him again. He have threatened me through chat and email, financially and emotionally crippled me. When i heard from him late DEC 2007 only to receive email with copy of his marriage certificate to another woman in UK. And when i ask him why did he not get divorce first his reply was he never registered our marriage in UK so no reason for him to file divorce and he does not plan to come back and pay for annulment he wanted me to suffer and not be able to re-marry or have a life. I was told that if he gets divorce in UK it will be honored here. So one time i was able to scare him of bigamy and get him to talk to divorce lawyer in UK but after they sent me draft of proposed divorce and after i sent them documents they ask for i got message from his solicitors saying that my ex or husband did not go back and not pushed through with the case. He knew i do not have the capability to file case because i don’t have enough money, so he just played and fooled me to believing that he was going to take care of it. What kind of law or country do we have if it can not even protect the rights of it’s citizens. I am financially broke, i have one daughter from previous relationship who is in college and can not afford to file annulment or even bigamy since i do not know how he can be persecuted, it has been almost 5 years am suffering from abandonment and not being able to move on and have new life due to our Philippine laws. And because i had been in the news long time ago, i am so ashamed to even file a case afraid of what people might say. I am BEGGING Law makers please don’t stop pushing divorce law, and if anyone can help me. I need advice. Is there a way for me to file bigamy and annulment without having to pay big money? Can a PAO help me? I hope that our bishops and priest consider and think of cases like mine before they say NO to divorce. I’ am a catholic, but sometimes I even think of becoming a Muslim just so i can get divorce and have fair chance in life like foreigners do. May God Bless Us All…. Thank you very much..

    Reply
  9. rheajane.valle

    Dear Atty.

    I have a querry about my bf that he was married 13 years ago. But their marriage just last for two years. After that, they went to a Barangay somewhere in Ilocos to settle an agreement that the woman(wife) will no longer be with her husband(my bf). Right after, the woman(wife) was already married to other man in Ilocos. Now, I met my bf and have planned to get marry. Do we still have to file annulment of the first marriage and get anny declaration of nullity of the first marriage to pursue our(my bf and I)marriage? Or just marry each other? I’m confuse with the scenario…For me, I’m no longer getting younger and i love my bf…In as much as possible, I need your best leagal advice. The woman (the wife) had compromise that she will no longer get in trouble to us. And also, I wanted a legal marriage… Please help me out. Thank you very much…I hope for your prompt attention to this matter…

    Reply
  10. danmartinb

    I was married in 1986, and left the PI to work in Taiwan after 1 year of being married. I left my wife to work abroad so I can give her a better life. After being there for some few months, I found out she was seeing another man, and I confronted her and she confesed to me and asking for forgiveness. I told her I will no longer live with her, and instead spent years abroad with no communication or whatsoever with her. After 8 years, I found my current GF, we had 2 kids. My question is, I want to marry her, is 25 years of being separated from my first wife enough to annull my first marriage? She found me on facebook and learned that she married another man and they have 5 kids. Please let me know.

    thank you

    Reply
  11. ItzMeJake

    elow sir …..just want to ask some questions I’ve been married for 7 years but been seperated now for 5 months….my x and I got to an agreement that we wont bother each other and we bot go on our seperate ways.I have a girlfriend now whose been living with me for 4 months and she wants to get married someday and so am I.But the problem is I cant afford to file for an annulment coz for what I heared it cost a lot.Is there anyway I can remarry?If there is how long will it take so that I can remarry?please sir help me :( or give me some advice .Hope to hear from u soon.

    Reply
  12. momdy

    My first civil marriage was on 2001 and it followed a church wedding on 2002. We got separated 2003.
    I found out that he got married last Nov 2010. He now has a son.

    My second marriage was on 2005 however my husband was previously married. The only reason we got married was for our daughter to be legitimate in paper. Eventually we got separated on 2009. He remarried last Apr 2011.

    My only desire is to nullify my two marriages so that I can regain my single status and if possible, I would also like to fix my daughter’s name. Presently, I have a domestic partner and we already have a 1 yr old son.

    Please advise.

    Reply
  13. kween cabias

    Atty,
    Can I file an annulment even we did not reached 4 years of being separated? The reason was by the time we were married for 4 years he promised to finish his studies and will have work. But within those years he’d been changing schools and cannot find what he’ll want for us, he constantly lie of being in school but always at the end to be discovered that he’d be just playing computer games. He’d been doing this ever since and I thought he would change his ways but never. I am screwed up with his lies and promises.

    Reply
  14. zoey

    Good afternoon atty.

    atty,concern ko lang po kung pwede pa po bang magpakasal ang isang taong ksal na kung may agreement po ang dating mag asawa??kasi po may kaibigan po ako na ganun po ung case nila..its that possible na maging valid ang pangalwa nyang kasal?kng my agreement at permahan nmn ang dating mag asawa?

    Kasi po 3-4yrs na silang separate,no communication at all,pero may isa silang anak.ngayon po di inexpect ng frnd ko na maka2pag asawa pa siya kya nagkaroon sila ng agreement?possible po ba yon?

    Reply
  15. ladyblue

    Hi Atty,

    good Day!

    me and my ex already been separated since 1999, nag abroad ako sa dubai to work in 5star hotel, then being here left alone to take care of our son which is 4 yrs old that time, he had a mistress, i come back to confront him and to take my son, since then i did not see him nor know where he is now , its been almost 14yrs now , now im back in philippines for good, what is my possibility to apply for declaration of presumptive death . i do not want to marry again i just dont want to carry his family name.

    hope you can guide to my situation.

    thank you

    God Bless

    ladyblue

    Reply

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