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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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

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

  1. jordan...

    good day,, is it possible to get remarry again if already 10 years no communication after the wedding but in my cenomar is still married,,,but no commution at all times eversince we get marriage..

    Reply
  2. genevive

    Hi atty;
    i was seperated with my ex husband since 2009
    He has his own family now. I want to ask if i can
    file for a legal seperation.brcause i want to get marrried
    with my partner now.is this possible?

    Reply
  3. jean

    Hi Sir
    My situation is Im married in civil and Im not living to Him together 10 years ago.
    We have 1 son and HE is not supporting Him since before.
    and now He live together with His live in partner.
    my question’s are:
    can we both re-marry without each other concern?
    can we re-marry without court file?
    what shall i do so that He financially support His son?He is not giving since before.
    please help

    Reply
  4. RAYNE

    a man wants to remarry a woman but he already has a wife and a children… his previous wife has a new partner and a child, what legal paper will he produce if he wants to remarry again… that will contradict the CENOMAR… pls help.

    Reply
  5. rovin

    good evening sir,

    i got married last jan. 2014 and we had 1 bby girl after 1 year we separated and not seen my husband since.2005 ,he never give a single cents to raised our daugther even just to have a communication with us,,can i file any case so that i can remarry.?

    thank u in advance

    Reply
  6. Lee

    I was married 2014 and just for a sake of our baby. We’re not living together after ng kasal, and he’s not giving us any support. Our relationships doesn’t work anymore since ng makasal kami at may boyfriend po ako ngayon, gusto namin makasal, is it okay na magfile ng annulment kahit 1year seperated plang?

    Reply
  7. lynn

    dear sir,

    DEAR SIR,
    I’m seperated for almost 4 years my husbnd work in abroad but he still support our kids,i want to get married to my new bf,but he not frm philippines,cn i get marry in judge?

    ,

    Reply
  8. Lonely woman

    dear sir,

    i would just like to know if i can remarry again. my bf and i are both married though we are both seperated (not legally) from our respective partners. he has one child with his (ex) wife and he want their marriage to be annull, on my part, i have a child too with my (ex) and i us to be annulled to. i havent seen and spoke to him for almost two years. can i remarry anytime soon? what should i do?

    Reply
  9. Jonald

    Hello Atty. Fred,

    I was married last 2009, we have granted one sibling and he is now turning 7 this coming month of June. Year 2010 when we both got separated and never been in the same house since then. We both agreed that it is better to keep it that way for good. She found her new lover and so I. Currently, i have new girlfriend, and she got pregnant before and now we already have one sibling also. My concern is, we are planning to settle down soon, but what worries me is i am already married to my first wife. Though my wife is aware all about this things happened, for my having a new girl, and having another kid, with her consent as well, this worries me so much. My question is, if ever we are going to get married with my second girl is it possible to be granted by church or by judge? I am aware that my 2nd marriage will might be voided, but i still want to marry her despite of that. Both of us, my first wife and i agreed to file annulment soon after 2 years when she returned from abroad after her contract. But i was thinking 2 years was too long to wait and also ad up the length of process for annulment proceedings.

    Looking forward for your response regarding.

    Thank you so much,
    Good Day.

    Reply
  10. melanie

    i had been married for 6 years but my husband worked in manila and do not support us for 4 years now..i do not know if he is still alive,he do not contact us anymore.what will i do to make our marriage null and void.last thing i heard is he already had a live in partner

    Reply
  11. Shilpa

    I am a married woman since 7years it was a arranged one…..my husband never loved me or showed any interest he only slept with me wen required recently I have fallen in love madly with a single guy he is ready to marry me …..we want run away plzz advice we r going mad

    Reply
  12. Lariza

    Please and ng some advise on how to fix my problems.. I am married the year 2001 and have one son.after the wedding we just live together only less than 1yr and get separate.until now its already 14yrs.and my husband have son to other woman but di cla ngkatuloyan.at my live in na cya they live together since 2005 if I’m not mistaken..now I found my boyfriend and will planning to get married..but my boyfriend can’t get me a fiancée visa because of my status..what is the best remedy for me and my boyfriend from London..pls.help Ned to know some advise…

    Reply

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