Presumptive Death: Meaning in Philippine Law

Article 41 sets the rule for remarriage:

So the spouse who wants to remarry needs three things:

• the other spouse has been absent for four consecutive years, or two years in a danger-of-death case;
• a well-founded belief that the absent spouse is already dead;
• a court declaration of presumptive death, obtained in a summary proceeding before the new wedding (Article 41, second paragraph).

Article 41 refers to Article 391 of the Civil Code. Its cases are a person on board a ship lost at sea or a missing plane, a member of the armed forces who took part in war, and a person who was in danger of death under other circumstances. In these cases, two years of absence is enough for remarriage.

Article 390 of the Civil Code presumes a person dead after seven years of absence for most purposes, and after ten years for opening his or her succession (five years if the person disappeared after age 75). For a spouse who wants to remarry, the Family Code periods of four or two years apply instead.

Under Article 42 of the Family Code, the new marriage ends automatically when a sworn statement of the reappearance is recorded in the civil registry, unless the earlier marriage had already been annulled or declared void by a court.

Article 349 of the Revised Penal Code punishes a second marriage contracted "before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings." So the court declaration must come before the new wedding. See Bigamy.

Made-up illustration: Elena's husband, a seaman, was on a ship that sank two years ago and has not been heard from since. Elena may remarry only after a court declares him presumptively dead. Because his ship was lost at sea, two years of absence is enough. Compare Rico, also made up, whose wife left him and lives in another province: he cannot use this rule, because she is alive. For more, see Can I remarry if my spouse is missing?.