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:

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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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

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30 Responses to “Can someone remarry even without going to court due to absence or separation?”

Pages: « 2 [1] Show All

  1. 15 mier Jun 11th, 2009 at 4:05 am

    Atty. Fred
    I was married 1990 and it was known to me that he was married( shotgun wedding)in other city and they have a child. I went to abroad to work and he was always gallivanting with other girls so after 3 times of going back home from abroad i decided not to coming back home since 1995 and i stayed abroad for 12 years and without any communication, and i heard a story from my friend that he get married in civil in another place and they live now in our house as a husband and wife. So i am home last 2006 and i filed for an annulment but it was complicated with the collusion when the sheriff serve the summon the new wife received it and proclaim that she is the wife to the fiscal stated the report for a collusion. If it happens that his first married(shotgun wedding) had a record at the NSO my marriage to him will be null and void? I want your help with this.
    Thank you

  2. 14 Atty. Fred Jun 10th, 2009 at 1:24 am

    @ Blace/lambstbl1, the topic above addresses your concern. There seems to be a continuing impression that mere separation for a number of years is enough to automatically nullify a marriage. I’ve been trying to figure out the source of this misimpression, but with no luck. It’s true that during the process of drafting the Family Code, the Family Law Committee thought of absolute divorce, with some members favoring a no-fault divorce between the spouses after a number of years of separation. This, however, was not carried out and there is no provision of that sort under Philippine law. Perhaps we could trace the history in the next article.

    @ Simple Mae/elle_beauty/e_gmel/des_09/maryann/donnalyn24/girlcomplicated/gigipasia — I believe your queries are covered by other topics; not here. Please take time to check the other relevant discussions. Thank you.

  3. 13 gigipasia Jun 9th, 2009 at 6:11 pm

    hi im separated for 2 years now but not legally,my ex husband had already a 2nd wife and a love child who is now living at my in laws,but he is supporting my 3 kids,he is now in abu dhabi working,can i file for a legal separation?

  4. 12 elen_dejesus Jun 6th, 2009 at 6:46 am

    Any remedy for my case? i have been separated from my husband for almost 10 years. He is now living in with another woman. Prior to this woman, he married another woman, meaning bigamous marriage, still invalid?
    What remedy would u suggest other than request for annulment? for me to marry a foreigner?

  5. 11 lambstbl1 Jun 6th, 2009 at 12:58 am

    Dear Sir,
    Against my own parent’s and family’s wishes, I eloped and married in July 1977. It was an abusive marriage so I’ve been separated since Jan 25, 1995; and got my divorce judgment in the States in 2001. My husband has been living in the States since 1991 but still is an undocumented [TNT].So we have not been living together since. I feel like I’m married to SOMETHING!!

    I’ve been with a foreigner since 2005 and we wish to marry but because of my complicated status, we cannot seem to arrive there.

    Several have suggested that we marry even in HongKong since divorce is recognized there, then we may live here “quietly”. Since we wish to settle here in the Philippines, my fiance still has a couple of concerns regarding our situation:

    1]. If we go ahead and marry in HongKong our marriage still won’t be recognized by Philippine Law therefore making me a bigamist.

    2]. Can my ex-husband sue me for bigamy even if he cannot leave US soil due to his undocumented status? Can he file a case in absentia?

    3]. What can we do? I tried to file for annulment but it receive 2 denial judgments from the QC RTC and Court of Appeals. Many say that this is practically a death sentence when the COA gives its verdict.

    I’ve not seen or lived with my husband since 1995. Isn’t there any law stating that couples who have not lived or been together for a certain number of years automatically dissolves the contract?

    I feel so stuck because I would like to marry again and live here in the Philippines but fear being sued in the future. Please advice. Thank you so much

  6. 10 girlcomplicated May 7th, 2009 at 2:17 am

    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 they filed na for an anulment, on my part, i have a child too with my (ex) husband and i have filed for an anulment myself. i havent seen and spoke to him since january 08. can i remarry anytime soon? i dont even know where he lives and if he is still alive. what should i do?

  7. 9 donnalyn24 Apr 28th, 2009 at 11:20 am

    Hi, I am currently living now here in Dubai. Me and my boyfriend wants to get married and have requested for a Certificate of Singleness. Upon receiving the CENOMAR it shows that he is still a certified single and there is no record of marriage in his name.

    Two days ago I accidently search one of his mail and there was one message with attachment that surprised me. I found a document which is a marriage contract with his name and a gurl’s name on it, stating that they was once married. I am really confused and ask the guy. He told me that the marriage took place a long time ago (i dont know the exact date) in the municipality office in Quezon City which appears to be a Civil wedding. But now, they were separated with each other and living separate lives.

    My question is, is there any possibility that their marriage is not legal? Because it was not forwarded in the NSO office, and NSO doesn’t have any record of their wedding? I am really confused now. Can I still marry him? is it not against our Philippine law?

    Kindly advice and i will really appreciate your help in this. Thank you.

  8. 8 Apr 15th, 2009 at 6:59 pm

    A friend is married in Phil. thru civil wedding and the marriage lasted only for 8 months. They have a love child which carries the surname of the father. The girl left the man since he is a drug addict. She left and went to Dubai and found a divorced arab muslim man and got married in shariah court. They are still in marriage for 6 years now. Which marriage is valid? How to make the 1st marriage void? What are the remedy to make the 2nd marriage valid in Phil.? Can the new husband adopt the child of the Filipina wife? How?

    Please advice. Thank you in advance for your response.

  9. 7 jedidiah667 Apr 14th, 2009 at 4:17 am

    to dess_09
    they already have a child. Please think of their child. People do not know it, but a child having parents who are separated are emotionally affected.

    God Bless You!

  10. 6 jedidiah667 Apr 14th, 2009 at 4:14 am

    to : dess_09,

    Friend, first and foremost, you ought not to have a relationship with someone who is already married. Wait for the right person in and get married at the right time. At your case now, you dont have the right person because he is already married. Keep away from him. If he is not able to make good of his relationship with his present wife, how can you be sure that he can make a relationship with you. Friend, it is better to stay single than marry the wrong person. Friend, get a good and clear conscience. Let us do unto others what we want others to do unto us. We are going to stand before God and He will account how we handled the life HE has given us. HE will judge us.

    Lawyers are here to help people understand and help people obey the laws of the land. Lawyers can be tempted to get your case and they can file for annulment but remember that

  11. 5 dess_09 Apr 10th, 2009 at 1:16 pm

    hi.. i just want to ask this, i have a boyfriend but he was married before, year 2002, on that the same year, his wife left him, he was in saudi arabia on that time, he is working there up to now! they have one child, but when the baby was 2-day old, his wife left the baby to his mother’s custody, my boyfriend didnt know why his wife left him, he didnt even had a chance to ask her… we’re planning to settle down someday, is it possible for us to get married considering his status? or he should go on annulment process?

    please help me… thank you…

  12. 4 blace Apr 7th, 2009 at 4:13 pm

    hi, how about if i’m married but not lving together for 10yrs. now? is it considered if my husband get marry again? i don’t care anyway.

    please help.

  13. 3 e_gmel Apr 7th, 2009 at 1:07 pm

    A woman has been married for 12 years in the Philippines and her marriage was never a happy one because for many times her husband has been unfaithful to her. Now she went abroad in Saudi Arabia and after 2 years, she met a man she loves more than her husband who forgotten even to text her. Later, she and her boyfriend converted and embraces Islam and decided to get married under Islamic Law. Now, the question is, Is the second marriage committed any violations as far as the Philippines law is concerned? Is there any provision under the Philippines law with regard to marriages such as this one? Thanks!

  14. 2 elle_beauty Apr 6th, 2009 at 5:47 am

    Good day! My situation is I got civilly married last april 10, 2008. He is married before but he told me that they already filed annulment. then just recently I secured his CENOMAR to check if our marriage already registered in census and I found out his first marriage april of 1995 still not nullified. Which means he entered into two marriages.. and our marriage is void.. what should we do to make it valid? should we annul both marriages and get married again or just nullify the first marriage? I want to clear out everything before we got church marriage.

  15. 1 simple mae Feb 10th, 2009 at 12:39 am

    Dear Sir,

    i’m 4 years separated with my husband, with no support and all. i want to file an annullment but he is not here on the Philippines. last time I’ve heard nasa Greece nakadaong ung barkong sinasakyan niya. He is a seaman.. by the way. tanga siguro ako or ma-pride lang pero hindi ako naghabol ng allotment. Its either mother nia or yung mistress nia ang tumatanggap. I don’t care anyway. all i want is to get an annulment and i’m gonna use his inability to give us support kahit may trabaho siya as a ground.

    But how will i do it if he is not here???

    Please advice…. thanks..

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