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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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

    Hi. I have a very complicated situation. I am in a relationship for 12 years now we have a kid. We were never married because he have a previous marriage. He went to UAE to work. He went home for a vacation just recently and w/o my knowledge, he married someone else that he got pregnant when he was away. He told me that he got his 1st marriage annuled while he was away. He filed for an annulment October last year and married the girl January this year. I thought that that was a very fast annulment. When I get a copy of his CENOMAR, both marriages where registered w/o a copy of annulment. Is the 2nd marriage legal?

    Reply
  2. Maria

    Hello good day! May boyfriend akong ka live in ko for almost 4 years may asawa xa dati pero hiwalay na cla. May asawa na ung babae at may anak. May anak ung boyfriend ko sa asawa nla 2 boys. Ang gusto ko mangyari Ay gusto legal kami masama . Ano po b dapat gawin namin para matupad ung pangarap namin na legal kami. Thanx!

    Reply
  3. ly277454

    hello im new here im browsing and i saw this site, i was married last sept 2003 and we got seperated 2005 coz my husband got inlove with my best friend , when we got married his parents are not aware only my parents are present tha time i was 19 when i got married and my husband was 23 we both need a parental consent since his parent was not agree with the marriage only my parents and my husband wanted it we asked some of are family friend to sign for the parent consent of my husband. want to ask is our marriage still legal. I havent got any copy of our marriage certificate im not sure if its register as well. we dont have any communication for 10 years the last time i heard he is living with his gf in his parent house.

    Reply
  4. ly277454

    and sa ngayon po i have a live in partner din po may first wife sya they got married 1999 may two kids cla tpos ng ibang bansa ung girl tpos dun po nag aswa ng hapon kya cla nghiwlay nung present partner ko they are seperated for 7 yrs na sa japan na nktira ung ex wife nya sa japan so in short halos pareho kmi ng pinagdaanan, ako at ung ex wife ng ka live ko ay ok nmn ng kakusap cla just because of their kids anu po kya ang pwede nming gwi pra mkpagpkasal na kmi pls help us we have kids nrin po na dlawa.

    Reply
  5. Laila

    Magandang Buhay,

    Im Laila, At legal age…wanna ask about po sa re-marrying..may leave in partner po ako for 3 years na po…and we plannig to get married.problem po kc..his married..pero 10 years na po clang hnd nag sasama at may anak po cla na kasalukuyang nasa pangangalaga ng mga magulang ng fiancee ko.yung asawa po nya ay taga dun lang din sa baranggay nila na halos mag kapit bahay na cla…pero for 10 years na po clang hnd nag sasama..
    tanong ko po..pwd po ba kaming mag pakasal ng leave in partner ko..
    sana po masagot nyo po katanungan ko maraming salamat po.

    Reply
  6. Tess

    Hi good day! Can I get information how I can go in US to remarry a man who’s living in United States and my situation now I’m separated with my ex husband and haven’t yet anual our marriage. Please help me how I can move other country just to remarry even still my past marriage not yet anual. I will for the response. Thank you

    Reply
  7. eda

    Atty. Fred pls help.. My mom and dad are separated since I’m still baby now I’m 32. But I still got there marriage contract at the NSO. They both have a partner now. And my dad partner claiming that she is the original wife coz they also married. I just want to know if I still have the right. Coz my dad ignores me assuming that he don’t know me. Even though we met when I’m 8 yrs old.

    Reply
  8. DELH

    Atty.,

    Please do help me. I really need your advice. I was married last 2010 when i was 20 with a foreigner (Canadian) and he was 24 at that time. We lived together for 2 months here in the Philippines then after that he go back to his country. After getting married last April 2010 he decided to as for separation after 6 months of our marriage i don’t know what’s his real reason why he decided that after all i don’t ask for anything(as in anything po tlaga. he even refuses to give me even such as allowance even we’re married). As i have heard she has a new girl now. And me i am living with the father of my son for 2 years.

    My question is can i remarry? Is our marriage still valid after he left me/abandoned me without any valid reason? How can our marriage be invalid? What should i do to be able to marry my live in partner today.

    Thank you in advance and hoping to receive any response from a legal expert.

    Thanks,
    Delh

    Reply

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