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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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

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

  1. Dyezabel

    Kinasal po kami noong Aug.26,2016.after a year naghiwalay kami ang tanong ko lang po mula ng ikasal kami never ko pa nagamit ang name ng husband ko even my transaction before because ang sinusunod ko po at yung id ko na surname ko p din po hanggang ngayon po na hiwalay n km do ko n tlga ginamit ano pong masasabi nio about dito

    Reply
  2. Quintin

    My girlfriend is living apart from her husband for a few months. He cheated on her and uses her for personal favors, and then goes back to the other woman. They have three children together, she has the baby, and he has the other two, aged 7 and 10. Neither she, nor I can afford annulment of her marriage at this stage. I have already proposed and she said yes. What can we do in order to make our marriage in the Philippines legal?

    Reply
  3. Rommel

    Good Day Sir
    Iam 41 years of age at kinasal aq noong 1999 after noon hindi po kami nagsama bilang mag asawa at di tumira sa iisang bobong pero nagkaroon kami ng isang anak sa loob ng 18 years wala po kaming communication….sa ngayon po meron akong kasama sa buhay at plano po sana naming magpakasal…gusto ko lang po sana itanong kung ano pwede kong gawin para maging legal ang lahat…salamat po

    Reply
  4. shiela

    Gud day!
    I just want to ask po wat is the easiest way pra mawalan ng bisa ang kasal namin ng x husband ko po…mag 7 yrs npo akng separated and ung x husband ko po meron ng ng dalawang anak sa labas magkaiba ung nanay.At this time po meron nrin akng bf and gsto nya akng pakasalan.kc po kng magfile ako ng anullment verry expensive and ang tagal ng proseso..ano po ba ang dapat kng gawin?tnx and God bless…

    Reply
  5. Alberto Urbiztondo

    Atty. I have a girlfriend whose husband abandon her and their children for 12 years we want to get married what shall we.do.I am a widow.Thank you.

    Reply
  6. Cristine

    Hi sir,
    I just want to ask if a married woman can still share the property of her husband even if they were physically not being together for over 20 years, no kids at all. After they get married the man went to abroad and never return. Lately my Aunt was able to contact the family of her husband and said that the guy has his own family now. My aunt has kids but not married again.

    Thank you and i hope you can advise me.

    Reply
  7. mhy

    hi. .tanong ko lang po. . pano ko malilegitimate kung my first wife po yung father ko. . 11 years na hindi ngkikita father ko and yung first wife bago ngpakasal father ko sa mother ko. .sabi nung judge n ngkasal sa kanila since 11 years nman n di ngpaparamdam ung first wife void n yung kasal kaya kinasal sila nung judge. .my affidavit of legitimation pa ko. .pro ung NSO/PSA ayaw iacknowledged since wala daw pong annulment na pinasa kaya ung kasal ng parent ko ung void. .ang problema po ngaun is patay na father ko and lahat ng credentials ko pati middle name ng mga anak ko last name ng father ko nakalagay. . hindi din ako makapagpakasal and makakuha ng passport dahil wala akong NSO/PSA na last name ng father ko nkalagay. .para kong buhay pro iba pagkatao. .pls help. .pano po gagawin koo??

    Reply
  8. Hannah

    What if the spouse is alive and absent for 13 years. The absent spouse is happy with her new family with a kid in another man and the kid is now 9 years old.

    Reply
  9. Judy

    If a person married 30 years ago and has not had contact at all if he dies and leaves every thing to some one else can she just rock up and take it if she’s not in the will I live in Victoria

    Reply
  10. Concerned friend

    I hav a friend po. Kasal po sya nung 22 yrs old sya pero shut gun wedding. Nagsama cla ng lalaki for 2 months. At naghiwalay po cla at wla clang anak. Kasi po may ibang girl ang mister nya. Yung mister nya nagkaroon ng ibang kinakasama at anak pgkatapos nlang naghiwalay ng friend ko. Ngayon 14 yrs na clang hiwalay at may anak na po sa iba ang lalaki sa girl na pinalit nya sa friend ko. Yung yrs na naghiwalay cla sa friend ko, yun din ang yrs na pgsasama nla sa girl nya. Pwed na po bh makasal yung friend ko ulit. Kac 2 months lng cla nagsama ng mister nya at wla clang anak. Thanks po

    Reply
  11. Medina

    Hi attorney,
    I have a question i been separated for 9 years,my husband is a shizoprenic can i get married without having annulment because he is mentally insane??thank you

    Reply
  12. Robert

    My Philippine “wife” has a document showing she is legally separated from her Philippine husband. She “married” me in the U.S. Is this “marriage” valid. I am suing her on the basis of fraud and bigamy, because I have recent photos showing her embracing her Philippine husband. I also have testimony from her sister that they are still married and her husband has written that he is married. I am now assuming the document she possesses has been forged. About one month before we “married” she was married to another American man. So, she probably committed bigamy in both instances unless legal separation is valid. I would be most grateful if you would share your thoughts.

    Reply
  13. Vulnerable

    Hi Sir.. Ask ko lang po sana if pwede na po bang makapag pakasal ulit ang (lalaki) kung 15 years na po silang hiwalay ng asawa niya. And yung asawa niya po dati ikinasal na rin po ulit s iba. That 15 years po ay wala na silang naging communication after na maghiwalay. Hope you response my question. HAve a good day po sir. Godbless..

    Reply
  14. Elena

    good day!
    iam married for 35yrs in civil court,my husband previously married in a civil court also in his first marriage he use his name which is not on his birhcertificate because the reason of his parents he became sickly during his younger days and he thought it was his real name,my husband left his first wife to work in manila .He sent money ,letters monthly but he never recieved any reply then he stop sending any support.After 4yrs.of no communication with his first wife we got married and we present our birthcertificate one of requirement and we found out his real name and and from our marriage until today all his documents he use his real name.My question is which marriage is valid his first or our marrige

    Reply

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.