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This understanding would have been correct, except that Article 83 of the Civil Code was superseded by the Family Code, which now provides: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)
hi, can i ask i am a second wife but, were not yet married because they where not legally anull because my live in partner had not enough money. and we have a one child. they are seperated for 3 years. what should we do and what is the righs for us? my live in partner has two kids with his ex. wife my husband cannot see the two.but,he financially supported. what will we do in our situation?
I am previously married but is separated from my first wife for 25 years due to her infedility…I really caught them thus our separation was mutual …and then I met a girl , shes also separated from her first husband and since then we’ve been living together for 24 years.with no communication from both our previous partners .thus we want to get married…but we cannot afford this annulment process..please help or advice possible way for us to get married..we are on our 59th year of age.we love each other so much… I want to give her my name….
Dear Sir
I just want to know if i can marry to my partner he was more than
20 years not with his wife. They have civil wedding and i want to know if he can marry now because its been very long time and they dont have any contacts to each other and even if he dont filed anything for court for the separation or annulment.i hope i cant get the answer sir.
Thank you
sorry sir ngkamali ng spelling sna po mabigay nyo ang sagot sa tanong ku kng pwd po ba kasi my isang anak na po kami salamat po
MY GIRLFRIEND IS FILOPINO SHE BEEN WORKING IN HONG KONG 7 YRS SEPERATED IM UK BORN AND STAY UK CAN WE MARRY IN HONG KONG WILL MARRIAGE BE RECONISED OR CAN WE FORM CIVIL PATRNERSHIP IN HONK KONG AND WILL THIS CERTIYFY REQUIERMENTS FOR UK GOVERMENT TO BRING HER TO UK
Dear sir:
A married man separated from his wife because of adultery.he then marry a widow after they converted to Muslim they are both catholics before the marriage..2 yrs after his marriage was annulled.. Can they go back to being catholics and get married again civilly or in church? Please advice. thank you.
Hi!sir…ask ko lng poh kung pwd na poh ba ult akong mgpksal kc poh almost 13 yrs. na pong absent ang asawa ko at wla ng kht anong komunikasyon since 2002 pa poh..ano po ba ang pwedeng gwin at klangan pra mksal ako ult?pwd nio poh ishare sa akin kung anong pwede ko pong gwin pra mkasal poh ult ako sa iba?..at posible dn poh ba un? Tnx poh sna mtulungan nio poh ako pgktpos poh ng mraming taon ng mgisa ako sa buhay ng wlang pramdam ng kht ano ang asawa ko sa mtgal na pnahon…godbless poh
Gud pm po atty, tanong ko lang po kung my bisa pa po ba ang kasal ko sa naglaho kong asawa 5 taon na po ang lumipas at ngayon po 5 months na pong alang suporta sa mga anak ko. Na dati po ay kapiranggot lang na magagastos lang ng mga anak niya ng isang linggo. Ganun po ka liit ang suporta. Consider na po ba wala na bisa ang kasal namin? D ko po alam kung nakulong, napatay o nagtatago lang o tinatago ng mga kamag anak niyang sakim sa pera. Mahirap po pala ang asawang banko ng angkan kasi kahit may mga anak na obligado pa din na sumuporta sa mga tiyuhin, tiyahin, kapatid, lola nanay at mga pamangkin at pati apo sa pamangkin. Alam ko po na may kasalanan din siya kasi nasa kanya din naman kung ayaw nya mag pa uto.
My boyfriend got married in very young age when he was17 due to some bad circumstances but now he is not happy with his wife bcz she does nothing for him &her behaviour is very bad towards of him they have been separated since june2012 but he does not know &have no contact with her now so can he remarry me if not then what would be the right process of marrying me now
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?
dear atty,
atty kinasal po ako noong 1999 bago ko ipanganak ang anak namin.makalipas po ang isang taon naghiwalay na kami.mula nang ako’y mabuntis hanggang manganak, wala po siyang binigay na suporta.pareho po kaming may asawa na ngayon.pero mula po nang kami’y maghiwalay, wala na po kaming communication.di naman po siya nagbibigay ng suporta.atty, pwede na po ba akong ikasal?kasi po meron na po akong asawa ngayon at siya po ngayon ang tumatayong ama sa anak namin.kailangan pa po bang dumaan sa annulment o diretso na po kaming papaksal kasi 15 years old na po ang panganay namin ng una kong asawa.
salamat po
hi..I’m 12yrs seperated to my ex husband whom I marry last sept 2001 and seperated June 2002 we had 2 kids on my custody.. From the 12yrs he doesn’t even gve any support to my kids.. And also he had another 3kids from another woman.. We don’t have communication fr 11 yrs then last year he add me on fb and asked for his kids but not give any support..but then he don’t communicate anymore now.. Is there possible that our marriage is void or not valid anymore.. Can I marry again without filing annulment.. Can I have my singleness if ever even not filing annulment? Please I need ur help.. I don’t have any knowledge of this.. Me and my bf want now to get married.. I really appreaciate all ur opinions and help..thank u so much
Dear Sir,
I am separated for almost 16 years fro now since im pregnant with my first child with my ex husband we get married with civil a mayor when im 6 months pregnant I leave my ex husband until now my son going to 16 years old he never meet at all and never supported us no communacation and I want to move on with my new life is there’s a way to re marry with another man do I have to file a case for annulment as I heard 7 years is already legal to get married again but problem is the procedures of those papers for annulment it cost too much an pls advice god bless
im married for four years but my husband is not with me…by june 23, 2010 i and him join in a civil union marriage…but after a year by October 5,2011 he married again since he was a muslim but at that time we were okay.but after 6 months he did not call me nor send me msgs.and this time he dont support me because his wife dont want him to communicate with me..what will i do please advice me..thanks..eva
he told me to wait because he has no work evrytime i send message his wife would call me flirt or prostitute.he would tell his sister that he cant call me but when im with her sister he call and in a longer time.he never mind me at all and he would leave me to his sister.all i want is my right is a wife not because im not maranao and im poor he would not mind me..what will ui do sir please tell me what to do…thanks
Dear sir
I have a boyfriend but he confess me that he got married for almost 13years..but his wife before have already married to someday else after 1year of their marriage..it is possible that there marriage will be null and void? And we can get married if we want..pls sir I need ur help