Can I Remarry If My Spouse Has Been Missing for Years?
Quick answer
Yes, but only after a court declares your missing spouse presumptively dead. Under Article 41 of the Family Code, your spouse must have been absent for four consecutive years, and you must have a well-founded belief that he or she is already dead. If your spouse disappeared in danger of death, such as on a ship that was lost at sea, two years is enough. Without the court declaration, the new marriage is void and you risk a bigamy case.
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.
The second paragraph adds the court step:
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.
So there are three conditions, and all must be met before the new wedding:
- Absence. Your spouse has been absent for four consecutive years, or two years in a danger-of-death case.
- Belief of death. You have a well-founded belief that your spouse is already dead.
- Court declaration. A court has declared your spouse presumptively dead in a summary proceeding.
When is two years enough?
Article 41 says two years of absence are enough when the disappearance happened in the danger-of-death circumstances of Article 391 of the Civil Code:
(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 four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.
Article 391 itself speaks of four years, for other purposes such as dividing an estate. For remarriage, Article 41 of the Family Code borrows only the list of situations and shortens the absence to two years.
What is a "well-founded belief" that the spouse is dead?
Article 41 uses these words but does not list what counts. It is not enough that your spouse has simply been away for four years: you must also believe, on good grounds, that he or she is dead. Whether your belief is well-founded is for the court to decide on the evidence you present. A lawyer can tell you what evidence courts look for.
Why do I need a court declaration?
Because the law requires it twice. Article 41 requires the summary proceeding "for the purpose of contracting the subsequent marriage". And the Revised Penal Code treats a second marriage made before that declaration as bigamy:
The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings.
Prision mayor lasts from six years and one day to twelve years (Article 27 of the Revised Penal Code). See Bigamy in the Philippines.
This page does not cover which court hears the summary proceeding, its fees or how long it takes. A lawyer or the Public Attorney's Office can explain the procedure.
Is this the same as the seven-year rule?
No. The Civil Code has a general rule on presumed death:
After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.
For a spouse who wants to remarry, the Family Code sets its own, shorter periods in Article 41, and adds the requirement of a court declaration.
What happens if the missing spouse comes back?
Article 41 says the declaration is "without prejudice to the effect of reappearance". Article 42 explains that effect: the later marriage is automatically terminated when a sworn statement of the reappearance is recorded in the civil registry of the residence of the spouses of the later marriage. This does not apply if the first marriage had been annulled or declared void by a court. If the fact of reappearance is disputed, a court can decide it.
When the later marriage ends this way, Article 43 says children conceived before it ended are legitimate, and the property of that marriage is divided. A spouse who entered the later marriage in bad faith loses his or her share of the net profits and cannot inherit from the innocent spouse. If both spouses of the later marriage acted in bad faith, that marriage is void from the start (Article 44).
How does this work in real life?
These are made-up examples to show how the rules work. They are not advice for any real case.
Elena's husband, a seaman, was on a ship that sank two years ago and has not been heard from since. This is a danger-of-death case under Article 391(1) of the Civil Code, so two years of absence is enough. Elena may remarry only after a court declares him presumptively dead.
Mila's husband left for work in another country five years ago. He stopped calling after a few months, and his relatives have had no news since. Mila must still ask a court to declare him presumptively dead. She must show both the four years of absence and a well-founded belief that he is dead, and the court decides whether her evidence is enough.
Jun's wife has been gone for three years after a fight, and Jun knows she lives in another province. Article 41 does not apply: the period is short, and Jun has no reason to believe she is dead. If he marries again, the new marriage is void and he risks a bigamy case.
When do you need a lawyer?
A declaration of presumptive death is a court case, even if it is a summary one. A lawyer can explain which court to go to, what evidence of the absence and of the circumstances of the disappearance you need, and what happens to your property and children if your spouse returns. Talk to a lawyer before you apply for a new marriage license.
If you cannot afford a lawyer, see Free legal help in the Philippines for the Public Attorney's Office (PAO) and other options.
Which provisions does this answer rest on?
Frequently asked questions
How many years must my spouse be missing before I can remarry?
Four consecutive years, with a well-founded belief that your spouse is dead. If your spouse disappeared in danger of death, such as on a lost ship or plane, or as a soldier missing after taking part in a war, two years is enough (Article 41 of the Family Code with Article 391 of the Civil Code).
Is the seven-year rule for presumed death the one that applies?
Not for remarriage. Article 390 of the Civil Code has a general seven-year rule, but Article 41 of the Family Code sets four years, or two in danger-of-death cases, for a spouse who wants to remarry.
Do I need a court case, or is an affidavit enough?
You need a court case. Article 41 says the spouse present must institute a summary proceeding for the declaration of presumptive death before the new marriage.
What if my missing spouse comes back after I remarry?
Under Article 42, the new marriage ends automatically when a sworn statement of the reappearance is recorded in the civil registry, unless the earlier marriage had been annulled or declared void by a court.
My spouse left and I know where he lives. Can I use this rule?
No. Article 41 is for an absent spouse whom the spouse present believes on good grounds is already dead. A spouse who simply left and is alive is not covered.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
Was this page helpful?