The Case of the Vanished and Presumably Deceased Spouse
What should the remaining spouse do in case her husband disappears?
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 Law’s Provisions in such a case
Assuming that the couple was married after the Family Code came into effect in 1988, the provision that applies is:
The law has provisions allowing remarrying should a spouse disappear.
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.
Proof Required for a Declaration of Presumptive Death
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)
A spouse needs to be missing for 4 years or 2 years if there is the threat of death before filing.
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.
Proof should be show attempts to find the missing spouse.
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.
The Missing Spouse Reappears
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.
What happens if the missing spouse appears?
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 Effects on the 2nd marriage if the Missing Spouse Reappears
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;
Net profits of the second marriage will be divided between the spouses; however, if there was bad faith, his share will go to his children.
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.
Hello Attorney,
I found your website and would like to inquire for legal representation and assistance.
I am a Filipino residing in Europe since 1993. I am widowed by my first husband with whom I have two children with, in December 2021, although legally separated from him since April 2011, I have contracted a second marriage with my then partner in January 2011 (please see attached CENOMAR). Although my second marriage should have been void due to bigamous marriage, it was left as it was because my first husband did not mind and we were already living our separate lives. Unfortunately, my second marriage ended in bad faith in 2019 after he had left me and our new-born son for someone else in the Philippines that he was already secretly living with in Saudi Arabia while he was working there.
Now that I have a widow status in Europe, I would like to have my second marriage voided. We never lived together as he was working in Saudi Arabia and me residing in Europe, it was a LDR and internet love/marriage and we would only see each other every two or three years. I was coerced into marrying him a day after I arrived in the Philippines to meet him for the first time and everything was arranged by his family although I had to pay for the expenses myself. I did not have time or counsel to think things through into marrying him while still being married to my first one, the plan at that time as per his family was that the civil wedding will take place but the contract will not be finalized until I am annulled form my first, this made me agree in the hopes of finding the real husband for me. However, when my first husband found out, he used this against me to get custody of our children during our separation. We unfortunately didn’t make it to divorce our first marriage as we will still be required to have it annulled in the Philippines being both still Filipino nationals.
The death of my first husband has already been reported in the Philippines and I am now carrying my maiden name as my surname in my passport. But records in the Philippine would still show my marriage to my second husband which I am hoping to have declared void from the start. We did not have any marriage license and all parties involved at that time were aware that I was still married but I was still encouraged to go ahead with the ceremony.
I have had no contact with him since 2019 and his family and friends avoided and blocked me as well so there is no way fo rme to know if he is living or not. Can I file for a judiciary declaration of presumption of death or nullity of marriage with him? Which better way to go?
Would you be able to help me please?
Filing for nullity of marriage may be the better way. This can be done even if you are abroad so long as he is in the Philippines.
We have written an article on this here: https://lawyerphilippines.org/how-to-file-for-annulment-in-the-philippines-while-abroad/
We will need more information to address this. Will send you an email.
Hi Atty,
Hope all is well with you.
I am a Filipino, I have met an American woman online in 2007 and we had the kind of Internet love story. I fell in love with her as she appeared to be God-fearing and a very appropriate person. During the third quarter of 2008, on short notice, she came to the Philippines wanting to get married. Later on, she said that she had to escape an abusive situation she had with her family. We got married a month after her arrival without any of her family members or any American friends attending the wedding.
Weeks after our marriage, she started showing her bad side – All throughout, I kept doing my best to understand that it may just be due to homesickness, her type 2 diabetes, cultural indifferences and being unable to work in a foreign country for lack of a working visa. As soon as I can, I have filed for her permanent Philippine residency because she has been telling me that she wanted to stay for good. Our situation worsened as time passed by and she was already being violent to a degree wherein she tried getting hold of medicines to do an overdose (which I was able to stop). She also had relationship issues with my mother & our other family members. I did my best many times to sort things out with her but unsuccessful.
Eventually, she contacted the U.S. Embassy claiming that I was mistreating her and that she wanted to go back to the U.S. She was advised to visit the U.S. Embassy where she was interviewed but had no indications of any physical or psychological abuse. She immediately filed for the repatriation loan but still chose to stay with me until the time she departed for the U.S. While taking care of her travel documents, she also told the Bureau of Immigration (Philippines) that she has no plans of coming back & that they can ban her forever from doing so. Before her flight, I gave her USD $150 & did my last-ditch effort to sort things out with her but she gave no indications of us being okay in any way, she said we will talk about it when she gets to the U.S.
We exchanged some emails but no voice calls because she said she no longer has a phone. She said that she was in a difficult financial situation living off on student loan. 2 weeks after, she said that “things will no longer work for us anymore & that she is already sleeping with some men”. I kept asking her if she will file for a divorce but failed to get an answer.
She shared some pictures wherein she was shown as being part of a dangerous cult and having intimate acts with different men, indicative that she has completely deviated from what she originally was – her former good-self. She stopped communicating with me from then on.
Years passed and it has been more than 10 years now. I tried communicating with her several times in the past but received no response from her whatsoever. I have also checked the U.S. Government websites for information regarding her and have been unsuccessful in acquiring any valuable information. I have also sent the U.S. Embassy Manila several emails, however, they weren’t able to direct or point me in the right direction.
I have been traumatized by this experience for many years & have avoided any kind of relationship. Few years ago, the sun started to shine on me again. I have met a wonderful Filipina who made me realize that true love is for real. She knows my marriage impediments and did not rush things. It’s only now that we are beginning to think and plan about the possibility of getting married.
In regard to this, I am writing your good office to seek your advice on the best direction to take for me to be able to remarry again in the near future. I have also read some information on the Internet regarding the possibility of presumptive death and/or nullity of marriage due to psychological incapacity.
Thank you in advance. Please stay safe & keep up the excellent work!
This is rather involved. Will send you an email.
Hi Atty.
Im married since August 2010, after that said marriage we broke and she ran away from our home with no explanations whatsoever, ever since then i never heard from her now call or any other message from her family or relatives. I did try looking for her, going to her house, her relatives house but i cant find any soul of her. Up unti now 2019 we do not have any communication or even see her. What can do to with this problem of mine. I have a new family now and i cannot marry her because of that past marriage. thanks. hope to hear from you soon.
Will send you an email.
Hello, just a hypothetical question. Can the judicially declared missing/absentee/or presumed to be dead spouse, remarry another person too? Thanks
Not validly. A dead person has no juridical capacity to marry.
Hello Atty.
I’m Married to foreigner 2012
But his physically abusive i left in his country and come back to Philippines but we are married to Philippines i file and annulment but due to my work as ofw i never had a time to follow up the annulment process i pay for the lawyer for 150k already.
I want to find after long time im separated more 5 years already can be my married be annul without going to a court?
I want to be single again and remove his last name.
How is this work? should i need to pay again for a lawyer?
Sent you an email.
Hi atty… may i ask what is the status of a child conceived and born after her mother reappers without filing an affidavit. The child was fathered by spouse present with the presumed dead spouse
Thanks
You may have to clarify the question, but children born of the subsequent marriage are legitimate even if the presumably dead spouse reappears.
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?
Yes, a case would require a lawyer. Whether one can be filed depends very much on the specific facts.