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Presumption of Death and Remarriage

Posted by Dave on Monday, February 23rd, 2009

Many people ask us: I have not heard from my spouse in 7 years, can I remarry?

The answer is no. No matter how long spouses have been separated 2, 4, 7, 15 years or more, one can not remarry without the courts having issued a:

  • Decree of Annulment or Nullity
  • Judicial Decree of Absolute Divorce
  • Death Certificate of the Deceased Spouse

Article 41 of The Family Code of the Philippines states:

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 (4) 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.

Danger of Death pertains to:

  • A person who was on board a ship or airplane which has gone missing and who has not been heard of for 2 years
  • A person in one or the other branch of the military who has taken part in war or other military operations, and has been missing for 2 years
  • A person who has been abducted and there has been no news about them for 2 years
  • Or other situations where there is a high chance that death may have occurred within a 2 year period

Presumption of Death should not be used as a work around to be to remarry, as the law provides that if an affidavit of reappearance is recorded, the presumption of death is automatically terminated. If the presumption of death is terminated; any remarriage is immediately voided.

Comments

By Jonatahan on March 9th, 2009 at 10:54 pm

My question is, what if she is alive but do not know her whereabouts for 5 years? How or what case can I file for annullment?

Jonatahan, You will have to hire a lawyer to discuss your case to find the best grounds to file a petition for annulment.

I have filed a petition of Declaration of Pressumptive Death and the court order were forwarded to NSO and has been given a notated marriage contract and was authenticated by DFA as well. Isn’t this enough to contract a marriage as stated in the court order that i can contract a marriage with no impediment of merriage. But the country that i am to get married is asking for a death cert of my ex-husband which is not possible because it was pressump death not dead. They are asking for certificate of no impediment of marriage and what i have now is the authenticated court order but they don’t approve.

Jhie, the Philippines has no control over the requirements of other countries governments. You might want to change the venue of your marriage and marry in the Philippines.

I married a foreign man year 2005, 3 weeks after our weeding he went back to his country, since then until now i heard nothing from him.I dont know where he is now.What case can i file against him? Please help.tnx.

Fatimah, the kind of case you file will depend on what you want to achieve.

twenty four years ago, we have contracted marriage and not a single day that we live as husband and wife, and both of us thinKing that said marriage was not consumated, both of us are now married, not knowing both of us had an existing marriage contraCT in the NSO, Can we annul our marriage.

Kenn, you can annul your marriage as it is considered null and void from the beginning, as your first marriage was not dissolved when you married for the second time. It is still necessary to file a petition for annulment.

if a woman is still married to a filipino and got married to a japanese citizen, and that woman is in japan right now, was this a legal marriage contract?

Ederlyn, the marriage in Japan is not valid and the woman is committing the crime of bigamy.

Been separated and no communication with ex husband for 9 years (know nothing his whereabouts)then filed for anullment presumed death.GOT supporting documents from NSO then got married to a foreigner.Marriage didnt work out after a year then we learned my ex still alive but not bothered to reappear in court.But former husband wanted to null our marriage as he said it seemed FAKE AS MY EX IS ALIVE.Was it a bigamy case .Can my former husband still can marry in Philippines to somebody else?Need ur advice please

Jessica, if your first husband files an affidavit of reappearance in court your second marriage will be terminated. Your former husband can not remarry as he is still married to you. It is not bigamy.

I was pregnant when we married in 1992,gave birth but child died 1 month after birth.A year after we married, my husband left me and he filed an annulment for grounds of psychological incapacity. The case was in court, attended 2 hearings and I never heard of him after. I left Philippines 2 years later to work in a foreign land. I married a foreigner in 1997 and now have 2 children. Am now a holder of foreign passport.Since then, have not heard of first husband. What happened now to the case filed long ago? is that case considered closed? is my second marriage valid according to Phil.law?

Eugenie, you will have to check if a decree for annulment was issued by checking with the NSO and the local marriage registrar. If an annulment decree was issued before your second marriage, it is legal under Philippine law.

my husband and i married in 2006, we lived in together more than 1 year before we got married. In the marriage contract it says that we lived more than five years before married. Then 1 year after our marriage i found out that she has another woman, we separated he went to saudi and me to other country also, we lost contact for more than 2 years now, can I file an annulmet for that reason?

Sher, infidelity, separation and 1 year of live in instead of 5 are not grounds for annulment.

Hi,
my husband American filed a divorced in U.S.A. even we got married here in Phil s.,and now i have new bf and we want to marry here in Phil.Is that divorce document that i have could help for me to remarry again?If not,can you help me pls. What i should do?
Thanks in advance.

Rizzche, you must file a pettion for recognition of foreign divorce in the Philippines.

Hi,I need advice please.I was married 2001,the marriage went rough,it’s full of lie,but we have a child. 2003 he left ,since then i never heard anything from him anymore.As he told me he don’t have any family anymore,even friends that i know.I was waiting for him so long to contact me since he knows where i live and he knows we have a child but more than 6 years still haven’t heard from him.Many things happened since he abandoned us,and I want to get marry again,but my marriage with him keeping me not to.can i file for presumption of death or annulment?How can I file annulment if i don’t know where he is?Please give me advice.
Thank you so much.
Hoping you can give me advice on what is best thing to do.please.thank you.

Kzeah, presumption of death can only be filed if a spouse was in a dangerous place or there is some strong proof that he/she is dead. One does not need to know where their spouse is to file an annulment.

By cjkulot19 on July 24th, 2009 at 10:36 am

i just have a question and i would like to address it to anyone who can answer this….i filed my petition for pressumptive death of my husband in the PHilippines last april 2008 and i received the RTC decicion last Sept 2008..My attorney told me to wait for the decision of the Court of Appeals before i can get a certificate that proves that the court has granted me my petition.Its been 10 months now and still haven’t heard anything about it from my attorney and all he can say is that to wait.I want to know, how long does it really or usually take for the Court of Appeals to release the decision on a Petition for Pressumptive Death case? I want to start a new life with my fiance for 3 yrs.Im hoping for a reply on this matter…thank u so much

By confused pisces on August 6th, 2009 at 2:10 am

I was married in 2002 and petitioned my husband to follow here in US but he was denied because he is not related to the petitioner since his 1st marriage was null and void in 2003 through presumptive death.In order for him to be petitioned again,we remarried in 2008 with that same nulled and void certificate in 2003.But then he was denied again this year since presumptive death is not acceptable in US.My concern is is that 2nd marriage in 2008 is valid?He knew that his ex wife is still alive and leaving abroad with another family. Could i file a divorce against him since i am a US citizen already?Thank you for your insights.

Confused Pisces, as an American you have the right to file a divorce in the US but the divorce will not be recognized in the Philippines. If you wish to update your records in the Philippines, you will have to file a petition for recognition of foreign judgment once you have finalized your divorce in the US.

why didnt u answer my question?…do u find it difficult to answer?

I am 65 years old now and i separated for many years ago I was married in 1964 but because we always quarrel we lived on and off. I went to Cebu leaving him but after a few months he followed me and we stayed together again, after a few months i left him for the reason that it seems i am a punching bag and he got a girlfriend. Since i left him i did not see him anymore until now. We have no sibling and i did not use his surname ever since. Can i acquire a declaration stating that i will be single again.

To be single again one must obtain an annulment.

hi
my fiance n i are planning to get married. but we are still waiting for the result of the annulment which he filed last year. his wife is already in the u.s . and they dont have any communicaion for more than 5 years already. the grounds he used is presumption death. do you think i should marry him?
please help

Rhea, if the presumed dead person shows up in court and files an affidavit to show that they are alive the annulment will be canceled as well as any remarriage by the spouse filing the annulment.

My husband and I broke up 20 years ago… and I have not seen or communicated with him and i dont know his whereabout. Can this be used as a basis for annullment?

Josephine, separation no matter how many years is not grounds for annulment.

good morning!
i was married on 2003 then my husband left me on 2006 with our daughter without my knowledge and went to a 3rd party. i asked my sister to secure cenomar of my husband and i found out that existing married was there. what do i need to do to for nullity of my marriage. please advice. thanks in advance.

Marlyn, you may file a petition for annulment on the grounds of bigamy.

i’m married 1998 and our marriage is not working due to financial problems we had 3 kids and in 2004 my wife told me personally that our 3rd child was not my biological daughter and also with that year she abandoned me not knowing her whereabouts leaving along with me my 2 kids and then in 2006 i have heard that she had an affair and got pregnant.can i file annulment case with the grounds of adultery?

Alba, adultery is not grounds for annulment.

I am applying as single together w/ my common law partner in canada. The canadian embassy reply to submit documents. I was married last year 2000. Is it possibel for us to pursue? I dont know where is my husband now. I want to start a new life. Canadian embassy put a note that in case of civil status discrepansies include letter of explanation!

Jenn, you lied about your status to the Canadian Embassy, you must explain to the Canadian Embassy why you wrote single and see what they say respond.

I was married year 1999 and had a child in 2000. I went working abroad in 2004 but since then my marriage was not working well. My family and her family were not in good terms as well as ourselves. Our marriage became shaky by mid 2004 and I wasn’t able to contact them anymore by phone and she didn’t answer my letters. Since that time in mid 2004, I did not receive any reply from her. I went vacation 2006 and I went to their house to see my kid but unfortunately, it was something that I don’t want to remember because first, I did not see my son and second, the two parties just fought. I went back abroad after 2 months and until now I’ve no communication with them, no calls, no letters and I know that she already has a boyfriend. I haven’t had communication with them for 3 years but to think it should be 5 years all in all. Will this marriage be considered null and void so I can proceed with my life?

Joseph, no marriage is automatically voided even if you have been separated for 100 years. /to annul your marriage you must file a petition for annulment and a judge must issue a decree of annulment.

my husband had his 1st marriage in 1997, a month after the wedding the wife went abroad and had no contact with him. in 2004 he filed for presumption of death which was grated by the court in 2005. dec. of 2005 we got married. is our marriage valid?

Sabina, your marriage is valid until the day your husband’s first wife makes an appearance.

my fiance want to be married, but she may still be married, she was informed by people that knew her exhusband that he had died, she has not seen him for 17 years, altho her daughter wasin contact for years, then no contact at all with any one. is this a good primise for assumpion of death.. we would just file for annullment but it is costing over $5000 u.s. can you advise us

Keith, many countries will not recognize an annulment by presumption of death. Meaning your marriage will be recognized in the Philippines but not in the USA.

Hi
I have a friend they were married for i think a yr.then the husband go abroad and they have a communication problem then they decided to broke up when the guy back in the phils.after 2 yrs.they talk then mutually decided to separate ways but they did not file any legal separation or annulment yrs.past the guy meet another woman and now the girl got pregnant without the knowledge of the wife they have now a child..what happen to the guy and the girl she have a child with?is the wife can file a case and what case?

Ginfer, the wife may file a case of concubinage.

Can I use presumption of death as a reason for getting remarried, my wife went to the u.s. in the year 2001, after 2 yers she sent me dissolution of marriage, after that we have no more communication untill now, at present i already have a relationship with other woman and we already have 2 kids, i want to get married again, can you advise me what to do, can i use presumption of death as a ground to get marriage? please advise me on this matter, thank you very much

Myke, you need to show that your wife was in a dangerous place where her life was at risk to file a presumption of death. You would be better off filing a petition for annulment on other grounds.

MY GIRLFRIEND AND I WANT TO GET MARRIED BUT HER HUSBAND LEFT OVER 2 YEARS AGO NOT SEEN OR HEARD FROM HIM . WOULD YOU ADVISE ANNULMENT OR PRESUMPTION OF DEATH
WHAT WOULD THE COST BE ? FOR BOTH AND HOW LONG ?

Jerry, most countries will not recognize an annulment based on presumption of death. It is not enough just to say I don’t know where my husband has been for the last 2 years. Proof must be given that he was in a place where there is actual danger such as a war zone. And there is always the chance that your girlfriend’s husband reappears which would dissolve your marriage in the Philippines.

my friend (lets hide her as CITA)got pregnant by a man(lelts hide him as TOM) whom he just meet… & had a mutual understanding… but as soon as tom known he got CITA pregnant,,,he brought my cita to his autie & they started living there since cita dont know what to do…& afraid to go home to her parents…she was stocked there until she gave birth.. she cant live her child to work,, because she want to work because tom was irresponsible.. but she got preggy again.., tom became dependent to his auntie & cita was always upset… they do fight about finances as they have 2 kids & seems tom was justplaying…ofF & on on his as he is a trouble maker wihtout cita knowing it…cita got a chance to get a job when tom was permanently jobless & do always got drunk.. until tom became so jelious about cita going home a bit late as her job was so far from home… so he keeps bitting cita…but still cita had geven him a chance… they went to prvince of cita to see citas parent & as for vacation.. but citas parent talk to tom to weather he want to marry cita ,, but cita dont have any plan getting married.. but tom decided to marry cita as citas parent anyway provided the small celebration.. . cita didn want but .. she got convinced to marry .. but she did not told her parent about tom bitting her… they went back to manila & cita think tom will change but he got worse & bits cita as much as he want..he claims cita made “pikot ” him..thats why he marry her.. cita was then like a punching bag & decided to leave tom after one year THEY GOT MARRIED & of being A PUNCHING BAG..as she can not stand it,,, even infront of their kis tom bit her..SHE BRING 2 KIDS TO HER PARENTS TO PROVINCE & CONTINUE TO HER WORK..since then they lost communication .. but tom knows where cita was… but he never give any support & even a call.. up to now.. CITA DONT KNOW WHERE TOM IS… BECAUSE SHE TRY TO ASK TOMS COUSIN ,,BUT THEY DONT KNOW WHERE HE WAS BECUASE HE DONT GO THERE IN HIS AUNTIE SINCE HE LEFT…MY QUESTION IS… DO THIER MARRIAGE CONSIDERED VOID? OR DOES CITA NEED TO FILE PSYCOLOGICAL INCAPACITY AGAINST TOM AS SHE WAS A BATTERED WIFE??? THANK PO ,, MORE POWER TO ALL.. PLEASE LET US HELP CITA… SHE WANT TO START NEW LIFE AS THERE IS SOME ONE WANTS TO TAKE CARE HER & HER KIDS,, & WANT TO MARRY HER…

Nadya, a marriage does not become void automatically, separation and no communication are not grounds for annulment. Cita should consult a lawyer to explore filing a petion for annulment on the grounds of psychological incapacity.

Sir, if one gets married before the Family Code came into law, can he validly declare presumptive death only on the basis of his own assertion that the first wife has been absent for more than 7 years? He asserts Art. 83 of the Civil Code as against Art. 41 of the Family Code where one has to prove “well-founded belief”. Thank you.

Herence, the law in effect today is Art. 41 of the Family Code of the Philippines.

Good day to you..Please help me with my problem..I got married year 2003,that time i am 23 years old..I really dont know at that time what is really marriage..I just marry that woman because she told me that she is pregnant,but after our wedding she told me that she is not pregnant,she just did it because she want me to marry her. Frankly speaking i did not love that woman. I marry her because she told me she’s pregnant but she just blockmailed me. After she told me that she is not pregnant i got angry and everyday we make arguing and quarreling. In 2004 she went to Davao City because maybe she realized that i did not really love her. From 2004 until now 2009 i did not hear any news about her,in short we dont have communication for almost 6 years already. Year 2009,I fall in love with another woman and now we have 1 child,i want to marry this woman but i cant do it because when i filed the CENOMAR i found there that i have an existing marriege..MY QUESTION IS: CAN I FILE PRESUMPTIVE DEATH SO THAT I CAN MARRY AGAIN WITH THE WOMAN I LOVE?PLEASE HELP ME WITH MY PROBLEM?I REALLY DONT KNOW WHAT TO DO.

Arnel, you can not file presumption of death unless you have a well founded belief that your wife is already dead. The belief has to be based on witnesses or that your wife was living in a war zone or some very dangerous material.

This is about presumption of death. One of the conditions is:
Or other situations where there is a high chance that death may have occurred within a 2 year period.

My husband left the house more than 3 years ago. I suspected he was having an affair. months after he left the house.. people and collectors from different company) are coming to the house looking for him because he owed them money or got things such as motorcycles from them. Most them are mad at him. One even said they will do something bad to him if they see him. Neighbors heard them said that. I recently contact his brothers due to the tax waiver but they all said he has not seen him in years. They became orphaned at a young age and grew up apart so they are not close to each other so I believe that they have not seen him at all. Can I file presumption of death in the court due to this?

Marissa L, do you have evidence of there being a high chance that death may have occurred, if yes you may use those grounds to file the petition.

All I can say is the government should amend the family code especialy about annulment and legal separation. Many Filipinosnowa days are having domestic problems mostly about marriage. Both husbands and wives are emotionaly burdened by the relationship including the children. The goverment should look into this because the family is the basinc unit of society, and we cant function well if the family is in suffering for many causes eg. domestic abuse. I find it hypocrite being in a country a roman catholics but theres no being christian seeing a lot of abuses in women and children. Our country should legalize divorce.

Hello my scottish ex-husband and i got married here in the Philippines in civil and we separated 10yrs ago and i havent heard anything from him and i dont even know where he is right now, he might be dead by now coz he was ill, having a brain damaged, can i file a presumption of death? what are the requirements to file for this case and how it cost? or can i get married again without filling an annulment? i have a boyfriend now and we have plan of getting married in the church, will that be possible?
thanks for your advice!

Russell, you can not remarry legally without obtaining an annulment or showing proof of his death. Presumption of death is not based upon illness.

My american ex-husband and i got separated 9years ago and i dont even heard of him since then, how can i file an annulment? i have heard that he got married again to other filipina, is that possible? that we’re not even annuled yet?how can i sue him or file an annulment that i dont know where he lives right now.
i want to get married to my filipino boyfriend will that be possible?
Thank you for your advice!

Babe, an American citizen may obtain a divorce in the USA and remarry even in the Philippines. If he obtained a divorce you need to get a copy of the divorce and file a petition for recognition of foreign divorce. Or you can file a petition for annulment. You don not need to know where he lives to file a petition for annulment.

How long will it takes to file for presumption of death and how much will it cost? Can I ask help from PAO’s for this case?
Thank you!

April, contact the PAO to find out if they will help you.

Would a church marriage in 2002 be legal though my husband’s 1st marriage was’nt null and void yet?The decision of the 1st marriage was null and void because of presumptive death(but he knew that his ex wife is just living abroad and also remarried in the Phils.)months after our church wedding.Would that make our 2nd marriage on 2008 in civil rights valid or still null and void? Thank you for yor insights.

Ms. March, since your husband obtained an annulment based on presumption of death your marriage is valid, but if the first wife appears and files an affidavit that shows she is still alive your marriage will be invalidated.

What is the procedure in getting a formal separation? My husband and I separated in 2004. I have been based in Germany since 2004. Can I seek legal separation through the Phil. Embassy in Germany?

Anna, do you mean annulment or legal separation they are not the same. Both require that a petition be filed in court in the Philippines. The embassy can not help you.