Presumptive death of a spouse for subsequent marriage

The Family Code clearly provides that a court declaration of presumptive death of a spouse is indispensable before the other spouse may marry again. Failure to comply with this requirement results not only in a void second marriage, but also opens the guilty spouse to a criminal charge of bigamy. Article 41 of the Family Code reads:

Art. 41. A marriage contracted by any person during 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 has 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 provisions 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.

In other words, an absence of 4 years, it being unknown whether the other spouse is still alive and the present spouse has a well-founded belief that the missing spouse is already dead, is a ground to ask the court for a declaration of presumptive death (this is a summary proceeding, not a special proceeding). The 4-year period, however, is reduced to 2 years in the following circumstances:

1. A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for [two] years since the loss of the vessel or aeroplane.

2. A person in the armed forces who has taken part in a war, and has been missing for [two] years.

3. A person who has been in danger of death under other circumstances and his existence has not been known for [two] years.

There are 4 requisites for the declaration of presumptive death under Article 41 of the Family Code:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code.

2. That the present spouse wishes to remarry.

3. That the present spouse has a well-founded belief that the absentee is dead.

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.

As mentioned above, failure to seek a judicial declaration of presumptive death opens a party who contracts a second marriage to a charge of bigamy. The reason is this –

In a real sense, there are three parties to every civil marriage; two willing spouses and an approving State. On marriage, the parties assume new relations to each other and the State touching nearly on every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent parties and to society, are so serious that the law may well take means calculated to ensure the procurement of the most positive evidence of death of the first spouse or of the presumptive death of the absent spouse after the lapse of the period provided for under the law. One such means is the requirement of the declaration by a competent court of the presumptive death of an absent spouse as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the death of the first spouse. Indeed, “men readily believe what they wish to be true,” is a maxim of the old jurists. To sustain a second marriage and to vacate a first because one of the parties believed the other to be dead would make the existence of the marital relation determinable, not by certain extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of individuals. Only with such proof can marriage be treated as so dissolved as to permit second marriages. Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage dependent not only upon the personal belief of parties, but upon certain objective facts easily capable of accurate judicial cognizance, namely, a judgment of the presumptive death of the absent spouse.

To be sure, this appears to be a relatively easier way of contracting another marriage. The problem, however, is that the second marriage is easily voided by the appearance of the “absentee” spouse (void ab initio or void from the beginning if both parties to the second marriage contracted the marriage in “bad faith”). The Family Code provides:

Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed.

So, is a judicial declaration of presumptive death better than seeking an annulment or a declaration of nullity of the second marriage? There are no hard and fast rules. Suffice it to state that “the automatic termination of the second marriage upon the reappearance of the absent or missing spouse is a risk that the paties to said marriage knew they were taking when they entered into such marriage, so that if it does happen, they have no reason to complain” (Justice Alicia Sempio-Diy, Handbook on the Family Code of the Philippines).

52 thoughts on “Presumptive death of a spouse for subsequent marriage

  1. balot298

    what if a guy got married because his wife got pregnant after giving birth they were seperated due to insanity of a girl. she. was admitted in mental hospital in mandaluyong… after 5 years she was missing… after 11 years he got married again it was 2001… for 11consecutive years she never reappeared… before he. got married.. and until now 15 years add to 11 years in total of 26 consecutive years she never appeared even her family didnt know what happen to her.. from 1990 up to this moment.. my question is… is the second marriage still can be null and void? is it needed to file for annulment of his first marriage.?

  2. aisle

    Good day Atty. Fred,

    How do I file presumptive death certificate for my husband? He got missing while on board a ship since February 14, 2015.

    Thank you and God bless!

  3. Jane


    My partner is now filing a case of presumptive death with her wife. If it will be granted does that mean their marriage is annuled? If not, how can he annul his marriage after the approval of court with the case of presumptive death? We just want to make sure that our marriage if ever will not be void if the previous wife will surprisingly show up.

  4. Cristina

    I need professional advice po and alam ko na matutulungan nyo po ako, may property po naiwan ang mother ko who died nuon pong 1993 at sa Land Title po nakalagay ay owned by (mothers name) married to (my father). Pinakasalan po ng dad ko ang mother ko sa tiwalang wala po itong asawa at anak. Nuon pa po alam ko n walang bisa ang kasal ng ama at ina ko, sa ngayon po eh pinapalayas kami ng ama ko sa lupain na mismong ang nanay ko ang nagpundar at binenta po ito ng lolo at lola ko (magulang ng nanay ko ) sa nanay ko at bilang unang anak din po at taga pag mana. Ang tatay ko po ay sugarol, ngayon po dahil naubos na po pera nya sa mula sa retirement at unti na lang po ang pensyon nya dahil may utang pa sya gusto nya po angkinin ang lupain ng nanay ko at kmi daw po ay walang karapatan samantalang hindi naman po nilapag aari ng nanay ko ang lupain kundi sa nanay ko lang. May mga pagkakataon pa po na nanunutok sya ng baril para mapalayas kami. at may insidenteng gumawa pa ito ng SPA nay may pirma kami pero di namin pirma at binibigyan daw po namin sya ng karapatan ibenta yung lupain ng nanay ko.
    Ano po ba ang tamang proseso kung saan para di nya mabenta nag tatay ko ang lupain ng nanay ko? at paano ko po ba maisasalin ang titulo at lupain ng aking ina bilang legal na anak ng aking pangalan at mawalan na po tuluyan ng karapatan ang aking ama sa lupain na ito kung saan gusto nya itira ang una nyang pamilya sa lupain na hindi sya ang nagpundar? kawawa naman po ako bilang anak na ito na lang ang alala ala ng aking ina.

  5. Cristina

    post script*
    Kami po ang pangalawang pamilya ng ama ko kung saan walng bisa ang kasal nila at buhay po ang unang asawa ng aking ama at ang kanilang anak, at sa kasalukuyan po ay nandito po sila sa Pilipinas, dapat po ba ako magsubmit ng Affidavit of Re-appearance sa Civil Registrar para mapawalang bisa ang kasal ng aking ina at ama? sa kadahilanan na gusto ng aking ama at ang kanyang unang pamilya na angkinin ang lupain ng aking ina? Ano po ba ang dokumento na kailangan ko para di maangkin ng ama ko at ng kanyang unang pamilya ng lupa ng aking ina ?

  6. Lydia

    Dear Atty,

    In march 8, 1982 i was married to Dominador de Castro. In May of the same year he left without leaving a word. In june 1, 1998 he was declared presumed dead by the order of the court. I married Manuel Uy in Jan. 17, 2000. Sadly my husband Manuel Uy died in Feb. 12, 2006. In Oct of 2010, Dominador de Castro reappeared and wanted to be with me, so we live together again. Just recently in Oct 15, 2016 he passed away. I have a hard way of claiming the benefits because of the absence of the affidavit of reappearance which he did not do. Please i need your legal opinion on what to do.

    Thank you and more power


Leave a Reply

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