Article 41 of the Family Code: Remarriage when a spouse is missing
Status: In force
What does Article 41 say?
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.
What does it mean in plain language?
Article 41 is the exception that Article 35(4) makes to the rule that a second marriage during an existing marriage is void. A spouse may remarry if, before the new wedding, the other spouse has been absent for four consecutive years and the present spouse has a well-founded belief that the absent spouse is already dead. If the spouse disappeared in danger of death, two years of absence are enough. In every case, the present spouse must first get a court declaration that the absent spouse is presumptively dead.
Without all of these, the new marriage is void and bigamous. The law protects the spouse who waited in good faith, but years of absence alone are not enough: a judge has to look at the facts first.
How does it work in real life?
Elena: a husband lost at sea
Elena's husband, a seaman, was on a ship that sank two years ago. He has not been heard from since. Because he disappeared in danger of death (a vessel lost during a sea voyage), two years of absence can be enough under Article 41. Elena may remarry only after a court declares him presumptively dead in a summary proceeding.
Rodel: a wife who left for work abroad
Rodel's wife left for work abroad five years ago and stopped calling after a few months. Rodel never asked her relatives, her agency or her friends about her. Five years have passed, but Article 41 also needs a well-founded belief that she is dead. Whether Rodel's belief is well-founded is for the court to decide on the evidence. He cannot remarry without the court declaration.
Mila: the husband who came back
Mila's husband was declared presumptively dead, and she married Jose in good faith. Three years later her first husband returned. Under Article 42, Mila's marriage to Jose ends once an affidavit of reappearance is recorded in the civil registry. Their child, conceived during the marriage, stays legitimate (Article 43(1)).
These are made-up examples to show how the rule works. They are not advice for any real case.
What does this mean in practice?
- Remarrying without the court declaration exposes the present spouse to a bigamy complaint. Article 349 of the Revised Penal Code punishes contracting a second marriage "before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings".
- The declaration of presumptive death under Article 41 is for the purpose of remarriage. The Civil Code has separate rules for presuming a person dead for other purposes, such as succession (Civil Code Article 390).
- For a void first marriage, the rule is different: a final judgment of nullity is needed (Article 40).
- For a full explanation, see can I remarry if my spouse is missing? and the meaning of presumptive death.
What does Article 41 require?
- Absence of four consecutive years. The absent spouse has not been around for four years in a row before the new wedding.
- Or two years, in danger of death. Article 41 points to the cases in Article 391 of the Civil Code: a person on board a vessel lost during a sea voyage or an aeroplane that is missing; a person in the armed forces who took part in war; and a person who was in danger of death under other circumstances.
- A well-founded belief that the absent spouse is dead. Article 41 does not define it. Absence alone is not enough; the court decides on the evidence whether the belief is well-founded.
- A court declaration of presumptive death. The present spouse "must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee". This must come before the new marriage.
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.
What is the "summary proceeding" in Article 41?
The Family Code has a title on summary judicial proceedings (Articles 238 to 253). Article 238 says these procedural rules apply until modified by the Supreme Court, and that such cases are decided in an expeditious manner without regard to technical rules. Article 253 makes those rules govern summary proceedings filed under Article 41, insofar as they are applicable. Among them, Article 247 says the judgment of the court is immediately final and executory.
This site does not describe the filing steps, the court fees or how long a petition takes. Those depend on court rules and practice not covered here; ask a lawyer or the Public Attorney's Office.
What if the missing spouse comes back?
The declaration of presumptive death is "without prejudice to the effect of reappearance of the absent spouse". The Family Code then says:
- The new marriage ends when the reappearance is recorded. Under Article 42, it is automatically terminated by recording an affidavit of reappearance in the civil registry of the residence of the parties to the new marriage, unless there is a judgment annulling the first marriage or declaring it void. If the fact of reappearance is disputed, a court can decide it.
- Children stay legitimate. Children of the new marriage conceived before it ends are legitimate (Article 43(1)).
- Property and good faith. The property of the new marriage is dissolved and liquidated. A spouse who entered it in bad faith loses his or her share of the net profits (Article 43(2)). If both spouses of the new marriage acted in bad faith, it is void from the beginning (Article 44).
Frequently asked questions
How many years must my spouse be missing before I can remarry?
Under Article 41, four consecutive years of absence, with a well-founded belief that the absent spouse is already dead. Two years are enough if the disappearance happened in danger of death, in the cases of Article 391 of the Civil Code, such as a ship lost at sea.
Is it enough that my spouse has been gone for four years?
No. Article 41 also requires a well-founded belief that the absent spouse is dead, and a summary court proceeding to declare the absentee presumptively dead before the new marriage. Years of absence alone do not allow you to remarry.
What happens if my missing spouse comes back?
Under Article 42, the new marriage is automatically terminated when an affidavit of reappearance is recorded in the civil registry of the residence of the parties to the new marriage, unless there is a judgment annulling the first marriage or declaring it void. The affidavit can be recorded at the instance of any interested person, with notice to the spouses of the new marriage.
Are children of the new marriage legitimate if it later ends because the spouse came back?
Yes. Article 43(1) says children of the subsequent marriage conceived before its termination are considered legitimate.
Can I be charged with bigamy if I remarry without the court declaration?
There is a risk. Article 349 of the Revised Penal Code punishes contracting a second marriage before the absent spouse has been declared presumptively dead by a judgment in the proper proceedings. Article 35(4) also makes the new marriage void.
Is the seven-year rule of the Civil Code the one that applies to remarriage?
No. Article 390 of the Civil Code has its own periods for presuming a person dead for other purposes. For remarriage, Article 41 of the Family Code sets four years, or two years in danger-of-death cases, plus the court declaration.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
Was this page helpful?