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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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

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

  1. Anj

    Hi Atty,

    Good day. I was married 1999 and we were not in good terms since then, a lot of differences. I walked away 2004 because I fell in love with another man. Now my first husband remarried last 2010 and we have not even filed annulment or whatsoever, however, it doesn’t matter.

    My question is, he stopped giving child support to our only child last 2006 and started to give my child directly two years ago, but it’s only 2000 PhP a month for school allowance. He’s monthly gross income according to our daughter which her father brags is 60000 PhP.

    I raised my daughter on my own since the time he stopped giving child support last 2006 up to now that my child is now an incoming Grade 11 and I would like to file for child support since he never bothered to give for a long time. How will I go about it? Thank you.

    Reply
  2. Lucy

    Atty. Fred,
    I am separated for more than 16 years now and my so called husband had a new family…actually he take home a woman twice and he had children to both women.2002 we had an agreement in PAO in our place… i just want to ask if i can marry again? Our separation is not leggally with court hearing only infront of the PAO and we signed and agreed with what is written there….
    Thank you very much hoping you can answer my question.

    Reply
  3. J***

    Good day atty. Fred,
    Im separated 11 years sa ex wife ko at meron na din syang mga anak sa kinakasama nya ngayon magiging invalid po ba yung kasal namin without annulment? At pwede aq magpakasal sa ibang babae? I need your advice atty. Kung anong dapat gawin.

    Salamat in advance.

    Reply
  4. sherwin

    good day po..ask ko lang po hindi na po kasi kami nagsasama ng una kong asawa ng 7 yrs.ngayon po my kinakasama narin ako at my anak narin po kami.sa 7 yrs po naming hindi nagsasama mababaliwala na po ba yung kasal namin?

    Reply
  5. kristy

    sir
    I have been 7years separated with my husband and now my ex husband had already 2nd wife,,can I remarry anytime soon,any remedy for my case?thanku

    Reply

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