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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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

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

  1. Ann

    I got civilly married Sept 8, 2015. mayron po xang unang asawa married last june 2007. i secured his Cenomar to check if our marriage already registered in census and I found out dlawa kmi ng first wife nia nkalagay sa cenomar. Which means he entered into two marriages.. 10 years na po clang wlang contact ng first wife nia. what should we do? Possible po kayang ma void kasal nmin?.
    pls help.

    Reply
  2. philip

    I am married to a citizen of the Philippines we have been married now for 5 years and have a 2 yr old son, she had a civil marriage before at the age of 18, she then found out he was already married and had children with his prior legal wife so he was living a double life without the knowledge of my wife , my wife left him stayed single for 8 years until we met and married, my question is that, was her civil marriage to the already married man , legal and what effect if any does that situation have on our marriage.

    Reply
  3. Jennie

    Hilo good morning sir/mam.tnong ko lng po nag asawa ako NOONG 1981 piro after sa kasal nmin one week lng ka ming nag sama iniwan ko na sya so 25 years na hindi ko sya nkita at wala kming contact at gosto Kong mag pkasal sa I bang boy poydi bang magpkasal ako sa ngayon? This year 2027

    Reply

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