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It is not accurate to say that if spouses have not seen or communicated with each other for more than seven years that the marriage is terminated automatically or is considered void. In situations where one spouse has not seen the other spouse for a number of years or does not know what has happened to the other spouse, he or she must file a petition asking the court to declare the missing spouse as presumptively dead for purposes of remarriage.
Petition for declaration of presumptive death for purposes of remarriage
Articles 41 to 44 of the Family Code deal with the declaration of presumptive death for purposes of remarriage. There are a lot of misconceptions, however, about this part of the Family Code. Please let me explain.
1. People cannot take the law into their own hands.
Article 40 provides that persons cannot take the law into their own hands and simply declare by themselves that their marriage is void. A person wanting to remarry must first obtain a court decision declaring the previous marriage void before getting married again.
2. Period of absence: four years for ordinary absence, two years for extraordinary absence.
The Family Code only provides for a period of two years (extraordinary absence like in war, shipwreck, storm, etc) or four years (ordinary absence) for a person to be able to go to court and file a petition for declaration of presumptive death of the missing spouse. The seven years separation that people usually refer to was previously provided for by the New Civil Code.
3. Proof is required that the petitioner tried to locate the missing spouse.
The court will however require the petitioner to present proof that he or she exerted earnest and diligent efforts to locate the whereabouts of the missing spouse. These efforts include asking the police or NBI for help in locating the missing spouse, using the media like newspapers or radio, etc. The court will deny the petition if the petitioner cannot present such evidence of earnest and diligent efforts to locate the missing spouse.
4. If the court declares the missing spouse as presumptively dead, then the petitioner will be able to remarry.
5. Reappearance of the missing spouse:
But the problem is, if any person (friend, relative, barangay official, etc) discovers that the missing spouse is really alive, then that person can file an affidavit of reappearance with the Local Civil Registrar. If the petitioner had already gotten married, then that subsequent marriage is automatically terminated (subject to conditions under Article 42 of the FC).
Posted below are the specific provisions of the Family Code on this matter:
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void. (n)
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. (83a)
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. (n)
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)
