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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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

263 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
  4. Judith

    Im seperated for 15 yrs. Pero di kami nagkaanak. Tapos nagkaroon na ako ng bagong partner after a yr. Nagkaanak na kmi at ngayon ay tatlo na. Meron na din siya kinakasama na iba. Gusto ko sana maging null na ang kasal ko para sa documents ng mga bata at para makasal na rin eventually. Kailangan ko pa ba mag file ng annulment??

    Reply
  5. myrasul

    hello po ask ko lang po, kung pwede na po ako.mag pakasal ulit kasi po 10years na po kami hiwalay sa asawa ko..at hindi po sya nag support mga anak ko since na nag hiwalay kami. at parang inabanson nila kami kasi hindi man lang sy ng support sa mga anak ko.at may pamilya na sya na bago at may mga anak na sya. nag asawa na sya sa iba at may mga anak anak ma sila dalawa…sya po naunang nag asawa sa iba at nag pakasal na sila.
    kaya gusto ko na din mag paksal sa aking boyfriend na foriegner ngayon ..kung pwde na po ba ako mag pakasal sa iba? salamat po

    Reply
    1. attyPhoebe

      unfortunately, even given these facts, you still cannot remarry as long as your first marriage is valid and subsisting. hence, I advice you to seek the services of a lawyer who can help you out with the annulment process..

      Reply
  6. JOSELITA

    MY HUSBAND WORKS IN AUSTRALIA AND HE IS NOW A CITIZEN HE STOPPED SUPPORTING OUR CHILD LAST JANUARY 2017 AND I HEARD HE IS NOW MARRIED TO ANOTHER WOMAN IN MANILA. DO MY HUSBAND CAN MARRY SINCE WE ARE MARRIED? SECOND, HOW TO ASK SUPPORT FROM HIM SINCE HE IS NOW AN AUSTRALIAN CITIZEN?
    I FEEL DISMAYED IN OUR FAMILY CODE… IT DOESN’T GIVES US AN ASSURANCE IF HUSBAND GO TO OTHER COUNTRY HE MIGHT NOT GO BACK BECAUSE THERE IS NO SUCH LAW THAT FORCE THEM TO SUPPORT THEIR FAMILY IN THE PHILIPPINES.

    Reply
  7. Heber

    Good Day Atty,

    I badly need your advice po. I was separated for 19years. we have 2 kids po at malalaki na. Ang wife ko po ay nasa Australia at lately lang nagsend sa akin ng letter or petition upang mapayagan siya magpakasal dun at wala na nman po problema sa akin. Sa ngayon po kasal na siya doon. Ang problem ko po is may live in partner ako for 15 years at gusto ko narin sya pakasalan. Ano po ba ang kailangan ko gawin para makapag pakasal kame?

    Reply
  8. MHAEY

    Good day sir,

    My boyfriend is almost 14yrs separated from his first wife he’s supporting for the two children, is there any possibilities that we can get married without any annulment process???

    Reply
  9. Ortigas

    Di po kme kasal, may anak isa.. sa birthcertificate ng anak ko sia naka indicate pati apilyedo nia, may concern here is gusto ko na po ng tigilan nia kme kasi dalawang beses na siang ng babae hanggang ngayon alam ko wala akong karapatan sa kanya.. pero ung saken lang tahimik na pamumuhay, since di rin nmn sia ng sustento sa anak ko kasi graduating student pa lang sia in college at ayaw nmin ng sapilitan..

    Reply
  10. cherry

    Atty: paano po kung nmn nmn po naabing mag boyfriend naikasal lng dahil ipinasok ng agency na sa kadahilanan na ang sabi my visa daw yung lalaki makakaalis daw po ako ng jpn pag nagpakasal daw po ako dun kc my lahi daw n hapon so un po naikasal kmi sa civil nkita ko rin po sa nso ny my record po ako n martied sa kanya noong 2012 gumuho mundo ko atty araw araw umiiyak dhil sa maling ngawa kc naloko lng po ako ng agency hnd nmn po nakaalis.paano po mabubura yung record ng kasal ko atty?wl po ako balita dun lalaki.please help po atty.Thanks in advance.

    Reply
  11. EDUARD

    ATTy. 11 YEARS NA PO AKONG SEPARATED. NASA CANADA YUNG MISIS KO AT MAY ASAWA NA CANADIAN FEW YEARS AGO PA. PUWEDE NA BA AKONG MAGPAKASAL MULI? NABASA KO DITO NA FOUR YEARS OF ABSENCE AY PUWEDE NA. HINDI NGA LANG NAWALA O NAMATAY KUNDI NAG ASAWA NA NG IBA. PLS I NEED YOUR ADVICE.
    THANK YOU

    EDUARD

    Reply
  12. jacky

    I am filipina and married in a australian citezen guy marriage solemnized in phil. he is muslim and i is celebrate in a mosque. but found out later his devorce from first wife not yet effective within the date we got married… and 2year later after wedding no more comunication.at all till now 5 years now.. now im planing to remarry again here in hk… do I need court devorce or itis null and void is it no need to go devorce

    Reply
  13. Shama

    Dear Sir,
    Good day!
    I’ve been separated for almost 9 years now. And for all those years I had no any contact to my ex husband. And after those years I’ve got into a relationship. I am rebirth now as a Muslim and my partner now is a Muslim, is it possible that I can get marry with him without a singleness certificate. What must I have to do with this. Can u please help me.
    Thank you and have a nice day.

    Reply
  14. Ail

    Good day! Ask Ko Lang po, pwede ba kaming ma kasal ng kinakasama ko Ngayon? May asawa siya dati kasal sila Pero hiwalay na sila ‘ 16 years na silang hiwalay, Kasi noon Wala pang cinumar * gusto naming magpakasal.. / pwede bang Makasal Kahit Hindi nag file ng annulment? Ang ang Dapat naming gawin? Please advise me. .. Thank you

    Reply
  15. Rhonda

    how do you go about getting a divorce if the person you married was in another country but ive had no contact with him for 7 years and have no idea where he is . i can not afford expensive lawyers. what an i do . help please

    Reply

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