The Case of the Vanished and Presumably Deceased Spouse

What if my husband or wife has been missing for years? Is he or she presumed dead?
Can I remarry?


Law cases are inherently woven with the cloth of drama. They involve controverted issues that matter to the actors, which is why they cared to file suit in the first place. And our adversarial court system means that there is always someone who stands in opposition to the suit. Dry though the law sometimes seems, the scenarios it contemplates are anything but to those who live them.

Imagine that a man and a woman marry. One day the man vanishes and does not return, never heard of again. With no divorce in the Philippines, where does this place the woman if, years later, she seeks to marry another man?

The Civil Code and the Family Code have provisions for this scenario. Assuming that the couple was married after the Family Code came into effect in 1988, the provision that applies is:

Art. 41. 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.

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.

Under Article 41, the woman can remarry if the man has not been heard of for 4 years or even 2 years. A case needs to be filed in Court for an official declaration of the presumed death of her husband.

Alright, so the woman institutes a summary proceeding with the Regional Trial Court asking for a ruling that applies these provisions to her case.

What must she prove?

She has to prove both the absence of her husband  for the required 4 or 2 years and also prove the basis for her “well-founded belief that the absent spouse was already dead.” For this, the Supreme Court has required that the petitioning spouse have conducted a search for the missing spouse “with such diligence as to give rise to a ‘well-founded belief’.” (Republic vs. Nolasco, G.R. No. 94053 March 17, 1993)

In practice, convincing evidence of these needs more substance than the wife’s bare testimony that her husband has been missing all those years. Evidence demonstrating her sufficiently diligent attempts to actively look for the husband should also be presented.

A case for declaration of presumptive death is usually opposed as a matter of course by the state prosecutor acting on behalf of the Office of the Solicitor General.

But let us say that the wife’s lawyer prevails. He presents enough evidence to convince the Court that the law is satisfied. The Court rules that the husband — let’s call him Martin Guerre — is presumed dead.

With this, the woman is now free to remarry. She remarries. The years slip by, life rolls on, and perhaps that is the end of that story .

… But what if Martin Guerre returns?

The Family Code provides for that too.

Art. 42. 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.

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.

Barring a separate Court judgment of annulment or nullity, the first marriage resumes with the return of Martin Guerre. The second marriage is automatically terminated by submitting to the civil registry an affidavit of the man’s reappearance. The woman and Martin are considered to be married again/still.

The effect of this termination of the second marriage is:

Art. 43. The termination of the subsequent marriage referred to in the preceding Article shall produce the following effects:

(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. (n)

Art. 44. 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. (n)

The law fudges a bit on the notion or legal fiction that the first marriage persisted throughout.  Paragraph 1 of Article 43 provides that despite the resumption of the wife’s marriage with Martin Guerre, her children from the second marriage are considered legitimate (i.e., born of a valid marriage). The other paragraphs deal with the property relations in the aftermath of the automatic end of the second marriage.

In her commentaries on these provisions, Justice Alicia Sempio-Diy considers whether Article 41 of the Family Code is a practical, easier alternative to the uncertain nullity cases which can take many years to be resolved. The good Justice intimates that yes, they might be, but that the consequence of Article 42 — the automatic termination of their marriage in case there is a resurrection — is a risk the parties to the second marriage knew they were taking.


Atty. Francesco C. Britanico

2 thoughts on “The Case of the Vanished and Presumably Deceased Spouse

  1. Hello. I am Ime, I am married to a foreigner 9 years ago, we get married july 28, 2009, and after the days of our wedding, he goes home to his country we communicate each other inside of 4 months, but then after that he just lost, he dont call me anymore he dont send me messages, until now i dont hear anything about him, i dont know where he is.
    I just want to ask about presumptive death? How to file, and do i need a lawyer?

    1. Yes, a case would require a lawyer. Whether one can be filed depends very much on the specific facts.

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