Tag Archives: presumption of death

Presumption of Death and Remarriage

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.