Dear Attorney,

I have a concern regarding my girlfriend, who was previously married. Her husband left nine years ago and has not been seen or heard from since. We wish to get married but are unsure of our legal options. Could you provide guidance on how we can proceed with this matter?

Insights

Under Philippine law, specifically Article 41 of the Family Code, the presumption of death of a spouse may be invoked as a ground for remarriage. In cases where a person’s spouse has been absent for a significant period, such as seven consecutive years without any word or evidence of their existence, the abandoned party may file a petition to have the spouse declared presumptively dead. This legal remedy is intended to help individuals who have been left by their spouse for an extended time, enabling them to remarry after completing certain judicial procedures.

Presumption of Death Process:

Filing a Petition: The abandoned spouse must file a verified petition in court to declare the absentee spouse presumptively dead. This is done through a judicial declaration.
Grounds for Presumption: The petitioner must show proof that the absentee spouse has not been heard from for at least four consecutive years, or two years if the disappearance occurred under certain extraordinary circumstances (e.g., danger of death). If the spouse left under ordinary circumstances, the period is seven years.
Evidence: The petitioner should present evidence that diligent efforts were made to locate the absent spouse. This includes showing the absence of any communication or knowledge of the spouse’s whereabouts during the specified period.
Judicial Declaration: If the court is satisfied with the evidence, it may issue a decision declaring the absentee spouse presumptively dead. Once this judicial declaration is granted, the petitioner can legally remarry.

Important Considerations:

If the presumed-dead spouse later reappears or is proven to be alive, the subsequent marriage of the petitioner becomes void, and the legal effects of the prior marriage resume.
A declaration of presumptive death is different from an annulment or divorce, as it does not sever the marriage bond but only allows for remarriage under specific conditions.

This legal remedy offers an option for individuals left in limbo due to their spouse’s prolonged absence, while still upholding the sanctity of marriage as protected by the law.