Can you remarry if your spouse goes missing? Marriage is a special contract of permanent union between a man and a woman, which is protected by law and all consequences and incidents related related thereto. What happens if one party to a marriage has been nowhere to be found for a long time and now the present spouse wishes to remarry? Will the law allow it, provided that the current marriage still exists?
The answer in such a situation is provided in the Family Code. The legal remedy if a spouse wishes to remarry, after the absent spouse went missing for a long time, shall be found in the Family Code. Under Article 41 of the Family Code:
“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. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient.1
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.”2
To reiterate, the general rule is that when a marriage is contracted during the subsistence of a previous marriage, the same shall be null and void, and the exception to this is if the present spouse has a well-founded belief that the absent spouse was already dead, if absent for four consecutive years, although this may be shortened to two years if it is believed that there is danger of death. For the purposes of contracting a valid marriage, the present spouse shall secure a declaration of presumptive death.
How to establish the absence of the spouse?
The absence of the spouse provided in the above-mentioned article does not mean mere absence by reason of failure to communicate or lack of news. There must be a well-founded belief that the absent spouse is dead who was absent for four consecutive years which may be reduced to two years if there is a danger of death such as:
- 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;3
- A person in the armed forces who has taken part in war, and has been missing for four years;4
- A person who has been in danger of death under other circumstances and his existence has not been known for four years.4
The present spouse shall have utilized diligent efforts in trying to locate or find his missing husband, in order to have a well-grounded belief that the absent spouse is presumptively dead. Failure to do this will not entitle the present spouse to declare his better half’s presumptive demise, even for purposes of remarriage.
What is a declaration of presumptive death?
This is a judicial proceedings. A decree, in the form of a Decision, shall be rendered by the court of competent jurisdiction. The judicial declaration of presumptive death is a statement to give effect that the prior spouse is presumed dead and to allow the present spouse to contract a valid marriage.
However, the fact of the death of the absent spouse is not established just by declaring its presumptive death. Hence, the declaration of presumptive death is without prejudice to the reappearance of the absent spouse. There is no finality of the Decision in this case.
What is the rule for reappearance of absent spouse?
The reappearance of the absent spouse does not automatically terminate the subsequent marriage contracted by the present spouse. As provided in Article 42 of the Family Code, “the subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.”
The spouse who reappeared needs to record an affidavit of appearance in the civil registry of the residence of the parties to the subsequent marriage. In this case, any interested person may actually file for an affidavit of appearance, hence, not limited to the spouse who reappeared.
The subsequent marriage of the present spouse is actually considered a valid but terminable marriage since it may be terminated by reason of recording of the affidavit of reappearance of the absent spouse.
What are the legal effects of the termination of the valid subsequent by reason of reappearance of the absent spouse?
The legal effects of the termination of the valid subsequent marriage is provided for under Article 43 of the Family Code:
Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:5
(1) The children of the subsequent marriage conceived prior to its termination shall be considered legitimate;2
Since the subsequent marriage is valid, the children conceived prior to the termination of such marriage are considered legitimate and the same is true even after the termination of such subsequent marriage. In case of dispute, the custody and support for the children shall be decided by the court in a proper proceeding.
(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;2
The legal effects of the termination of a subsequent marriage is clearly stated in the above provision. Since the marriage is valid, the same shall follow the dissolution and liquidation in accordance with the property regime chosen by the spouses. However, as stated above, there are legal consequences if a spouse contracted the said marriage in bad faith.
(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;2
Donations by reason of marriage, also called ‘donation propter nuptias’ are those made before the celebration of marriage by reason or mainly because of the marriage which are given to one or both of the spouses. It is necessary that the donee shall be one or both of the spouses. Though donation propter nuptias are still valid, there is an exception if the donee contracted the marriage in bad faith, in this case such donations shall be revoked.
(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; and2
The general rule under the insurance code is if the designation of the beneficiary is irrevocable, the insured cannot change the beneficiary without the consent of the irrevocable beneficiary. However, an exception to this ruling is where a spouse contracted the marriage in bad faith, in this case, the innocent spouse may revoke the designation of the spouse who acted in bad faith.
(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.2
Another legal consequence for the spouse who contracted the marriage in bad faith is provided in the above provision. In addition, if both spouses acted in bad faith, hence the marriage is considered void ab initio, the testamentary dispositions made by one spouse in favor of the other are revoked by operation of law.
The above effects e the consequences of termination of marriage by reason of registration of an affidavit of the reappearance of the absent spouse. Thus, if the subsequent marriage was terminated by reason of death of either spouse, Article 43 shall not apply and instead it shall be dissolved as a valid marriage.
What does it mean to contract the marriage in bad faith?
In Armas vs. Calisterio,6 it is said that bad faith imports a dishonest purpose or some moral obliquity and conscious doing of wrong – it partakes of the nature of fraud, a breach of a known duty through some motive of interest or ill-will.7
One form of bad faith in relation to the discussion of subsequent marriages is where a party to the marriage purposely contracts a marriage while fully knowing that at the time of the celebration of the subsequent marriage, the absent spouse is still alive.
Final Thoughts
Those who seek to remarry due to the presumed death of a spouse may do so by first requesting a declaration of presumed death from the court. The following requirements must be met in order for this to be permitted under the ordinary presumptions.
Thus, it has to be that your husband has been missing for four years in a row. This is controlled by Article 41 of the Family Code of the Philippines, as modified. You firmly believe that your missing husband has passed away.
You have put a lot of work into finding and getting in touch with your husband who is away. You’ve submitted a summary proceeding for the declaration of the absent spouse’s presumed demise. You’d like to wed again.
For extraordinary absence, the four-year duration might be lowered to two consecutive years. Therefore, it has to be that the missing spouse has been on board a ship that capsized at sea or an airplane that went missing, and has been missing for the last two years. The missing spouse should be a member of the military who had served in a conflict and had been away for two years.
Under other conditions, the absent husband, whose presence had been unknown for two years, has been in danger of death. If the present spouse remarries without obtaining a declaration of presumed death, he or she is at the risk being accused of bigamy. Additionally, the second marriage is invalid for being bigamous.
- Article 41, Family Code[↩]
- Id.[↩][↩][↩][↩][↩][↩]
- Article 391, Civil Code[↩]
- Id.[↩][↩]
- Article 43, Family Code[↩]
- G.R. No. 136467, April 6, 2000[↩]
- Ibid.[↩]