What to Do If your Spouse Has Been Missing for Many Years and You Wish to Remarry

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NDVLAW Article image summary proceeding to have the absent spouse declared presumptively dead, in order to remarry

Marriage after Spouse Goes Missing

Losing a spouse is painful. More so when a spouse goes missing and you have a feeling that he or she might be dead. How do you move on from such ordeal? What if you meet someone else and wish to remarry? Technically, you are not yet a widow or a widower, so how can you legally get married to another?

There is a legal remedy to such hapless circumstance. Under Article 41 of the Family Code of the Philippines, if a spouse has been absent for four (4) consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead, he or she can file a summary proceeding to have the absent spouse declared presumptively dead, in order to remarry.  The period of four (4) years is shortened to two (2) years if the absent spouse was on board a vessel lost during a sea voyage or an airplane which is missing, or a member of the armed forces taking part in a war or in danger of death under similar circumstances.

Requirements of Declaration of Presumptive Death

In the case of Republic vs. Catubag (G.R. No. 210580, 18 April 2018), the Supreme Court explained that the following requisites must be complied with for the declaration of presumptive death to prosper:

  1. The absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391 of the Civil Code; 
  2. The present spouse wishes to remarry;
  3. The present spouse has a well-founded belief that the absentee is dead
  4. The present spouse files for a summary proceeding for the declaration of presumptive death of the absentee.

Mere Absence of the Spouse is not Enough

Mere absence of the spouse (even beyond the period required by law), lack of any news that the absentee spouse is still alive, mere failure to communicate, or general presumption of absence under the Civil Code would not suffice (Republic vs. Cantor, G.R. No. 184621, 10 December 2013). The present spouse must have a well-founded belief that the absent spouse is dead.  This can be done by exerting diligent and reasonable efforts to locate the absent spouse. It necessitates exertion of active effort (not a mere passive one) (Republic vs. Villanueva, G.R. No. 210929, 29 July 2015). In view of the possibility of collusion between spouses to avail of this remedy as a shortcut, the Supreme Court has required a stringent standard and degree of diligence in coming up with the well-founded belief of the death of the spouse. 

Recording of Affidavit of Reappearance

What would happen if after the declaration by the court of the presumptive death of the absent spouse and the remarriage of the present spouse, the absent spouse suddenly appears? Article 42 of the Family Code is instructive and enunciates that the subsequent marriage shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse. A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in case such fact is disputed. 

Effects of Reappearance of Absent Spouse

If the subsequent marriage is terminated by the reappearance of the absent spouse, Article 43 of the Family Code provides for the effects of the termination of the subsequent marriage:

(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;

(2) The absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse;

(3) Donations by reason of marriage shall remain valid, except that if the donee contracted the marriage in bad faith, such donations made to said donee are revoked by operation of law;

(4) The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable; and (5) The spouse who contracted the subsequent marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession.

Effect on Subsequent Marriage in Bad Faith

It must be borne in mind that if both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law pursuant to Article 44 of the Family Code.

This is how to declare an absent spouse presumptively dead to enable the present spouse to remarry in the Philippines.

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If you need help regarding annulment of marriage, declaration of nullity of marriage, legal separation, or have any questions or concerns regarding family law or other civil or criminal law-related issues, we can help you. Nicolas and De Vega Law Offices is a full-service law firm in the Philippines.  You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines.  You may also call us at +632 84706126, +632 84706130, +632 84016392 or e-mail us at [email protected]. Visit our website https://ndvlaw.com/.

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