Presumptive Death under Article 41 of Family Code

20 Oct

There is a complicated situation under the Family Code where it allows, as an exception to the general accepted rule, the validity of two marriages involving a present spouse and a reappearing absent spouse. In Article 41:

A marriage contracted by any person during the 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 had 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 for only two years shall be sufficient.

For the purposes of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided for in this Code for the declaration of presumptive death of the absentee, without prejudice to the reappearance of the absent spouse.

First, let us first establish what is meant by “well-founded belief”. Obviously, it is easy for a present spouse, especially when the said spouse wishes to remarry, to believe that the other spouse is already dead. In Republic of the Philippines vs. Court of Appeals (G.R. No. 159614, December 9, 2005), the Supreme Court said that:

Belief is a state of the mind or condition prompting the doing of an overt act.  It may be proved by direct evidence or circumstantial evidence which may tend, even in a slight degree, to elucidate the inquiry or assist to a determination probably founded in truth.  Any fact or circumstance relating to the character, habits, conditions, attachments, prosperity and objects of life which usually control the conduct of men, and are the motives of their actions, was, so far as it tends to explain or characterize their disappearance or throw light on their intentions, competence evidence on the ultimate question of his death.

The belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still alive or is already dead. Whether or not the spouse present acted on a well-founded belief of death of the absent spouse depends upon the inquiries to be drawn from a great many circumstances occurring before and after the disappearance of the absent spouse and the nature and extent of the inquiries made by present spouse.

If the well-founded belief within the periods stated under Article 41 is acceptable to the court, a summary proceeding is to be instituted. Full blown trial is no longer necessary. Once the Declaration of Presumptive Death is issued by the competent court, it will be immediately be final and executory. This is not subject to ordinary appeal. In Republic of the Philippines vs. Tango (G.R. No. 161062, July 31, 2001), the Supreme Court settled the rule regarding appeal judgments rendered in such proceeding under the Family Code:

By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and executory. As a matter of course, it follows that no appeal can be had of the trial court’s judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction.

Once a decision becomes final and executory, it cannot be directly or collaterally attacked again by way of appeal other than that resulting from excess or lack of jurisdiction. In the recent ruling of Chan-Tan vs. Tan (G.R. No. 167139, February 25, 2010):

Nothing is more settled in law than that when a judgment becomes final and executory, it becomes immutable and unalterable. The same may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law. The reason is grounded on the fundamental considerations of public policy and sound practice that, at the risk of occasional error, the judgments or orders of courts must be final at some definite date fixed by law. Once a judgment has become final and executory, the issues there should be laid to rest.

Now suppose the present spouse validly remarry another person after the summary proceeding. Then after a few years, the absent spouse of the previous marriage suddenly reappeared.  This will now be a case where a present spouse is “validly” married to two persons. Remember that the marriage with reappearing spouse was never severed.   The subsequent marriage cannot be bigamous either. However, the conflict may be resolved by the filing of the reappearing spouse of an Affidavit of Reappearance in accordance with Article 42 of the Family Code. In such case, the subsequent marriage will automatically be terminated upon the recording of the Affidavit of Reappearance, except when the previous marriage is declared void ab initio.

But what will happen if the reappearing spouse, or any interested person, did not institute any action? Take the case of Social Security System vs. Teresita Jarque Vda. De Bailon (G.R. No. 165545, March 24, 2006):

If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or by court action, such absentee’s mere reappearance, even if made known to the spouses in the subsequent marriage, will not terminate such marriage. Since the second marriage has been contracted because of a presumption that the former spouse is dead, such presumption continues inspite of the spouse’s physical reappearance, and by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is terminated as provided by law.

By this ruling of the Supreme Court, the appearance of the absentee spouse, per se,  does not ipso jure terminate the subsequent marriage. This may cause some complications later. There will be no further issue if the reappearing spouse will assert locus standi on their marriage. The subsequent marriage will be void after some administrative procedures. This is without prejudice to the outcome of any judicial proceeding questioning the reappearance.

An argumentative situation now comes if the reappearing spouse chooses to do nothing to reclaim the previous marriage. The reappearing spouse cannot contract a subsequent marriage because of a valid and subsisting marriage with the present spouse. But can the former maintain a (sexual) relationship with the latter without being penalized under the law? Technically, yes. Is there no cause of action for the subsequent spouse to sue the present spouse? The possibility of suing with bigamy was explained in the case of Manuel vs. People of the Philippines (G.R. No. 165842, November 29, 2005):

Such judgment is proof of the good faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime.  As explained by former Justice Alicia Sempio-Diy:

[S]uch rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be guilty of bigamy in case he or she marries again.

The above Article of the Family Code now clearly provides that for the purpose of the present spouse contracting a second marriage, he or she must file a summary proceeding as provided in the Code for the declaration of the presumptive death of the absentee, without prejudice to the latter’s reappearance. This provision is intended to protect the present spouse from a criminal prosecution for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the missing spouses presumptively dead, the good faith of the present spouse in contracting a second marriage is already established. (Underscoring supplied.)

A lot of legal conflicts and infirmities will rise from the above scenario. It may also appear that the subsequent spouse has no cause of action against any right deprived of him. Take for instance the knowledge of the subsequent spouse of the infidelity of the present spouse. The former’s claim on either criminal case of adultery or infidelity as a ground for Legal Separation is questionable. This is from the fact that the reappearing spouse and the present spouse are still considered to be married for any or all legal purposes.

In conclusion, Article 41 of the Family Code provides a speedy and efficient way of declaring absentees especially for the purposes of remarriage. It also provides a reckoning point in the recovery of civil rights that might have been lost from the absenteeism. However, there are still gray areas that need to be reinforced. There can be more impaired or prejudiced rights if the situation will involve presence of children in both marriages. Such unwanted situations may be avoided if there would be a more straightforward rule like the case where appearance of the absentee per se, provided that it is authentic, will cause the judicial declaration of presumptive death immediately rendered functus officio, concurring to the view of Atty. Mel Sta. Maria in his book “Persons and Family Relations Law”, Fifth Edition (2010), pages 282-284.


Posted by on October 20, 2012 in Civil Law


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42 responses to “Presumptive Death under Article 41 of Family Code

  1. babylyn c morales

    June 6, 2013 at 11:21 am

    Regarding po s case ng father KO he is still missing PNP po father KO and we wanted to file a petition of presumption of death kc po d namin maprocess ang knyang mga insurances nbbhala po kami n maforfeit katulad po ng afpslai ala n DW po kami mttanggap n claims
    Ng ttay KO kc DW po terminated n ung membership nia gusto KO po Sana ireklamo cla kc po matagal n member ng afpslai ang tray tapos sabihin nil a ala n claims npka imposible po kc po Phil constabulary p LNG c c tatay meron n CIA membership s knila

    • engrjhez

      June 6, 2013 at 1:18 pm

      Ang akin pong tinalakay ay “presumptive death” sang-ayon sa Family Code. Ito po ay “for the purpose of contracting the subsequent marriage”. Iba naman po ang presumptive death sa kaso ninyo, na dapat ay sang-ayon naman sa Art. 390-391 ng Civil Code. Ang pagkawala ng 7 taon ay ipagpapalagay na ng batas na patay na. Subalit sa pagkawala lamang ng 10 taon o higit pa maaaring buksan ang usapin sa manahan. Summary proceeding lamang po iyan sa korte. Asikasuhin ninyo na po para masimulan ang mga claims ninyo sa AFSLAI.

  2. cherryline

    June 17, 2013 at 7:24 pm

    ano po ang unang steps para makapag file ng Declaration of presumptive death of a spouse for subsequent marriage? eto po ung overview ng case ko:

    * I’ve been married po kc 2002 tapos po naghiwalay kmi after a year ng husband ko tapos po nag abroad ako at till now nandito pa rin po ako sa abroad. Then I think (not sure) umalis ng bansa ang dati kong asawa year 2006. But i remember po year 2008 may pinapirmahan po akong sulat sa akin asawa pero po ito ay dumaan sa aking mga biyenan pero ni hindi ko po nakita o nakausap man ang aking asawa. Sa ngayon po ay totally wala na akong balita sa kanila at kahit anong e-mail at mensahe ko sa asawa ko at sa pamilya niya ay wala din reply, pwede na po ba akong mag gile ng Declaration of presumptive death of a spouse for subsequent marriage?

    Please advise po..


    • engrjhez

      June 18, 2013 at 5:31 pm

      Kailangan pong maipakita ninyo sa korte sa pamamagitan ng mga katibayan o ebidensya na ginawa na ninyo lahat ng paraan upang hanapin ang inyong asawa subalit sadyang hindi ninyo na makita. Mainam na kasama sa mga katibayang ito ang mga sinumpaang salaysay mula sa kanyang mga malalapit na kamag-anak (tulad ng iyong biyenan) na sila man ay walang balita ni anuman sa iyong nawawalang asawa. Dapat komprehensibo ang paghahanap at hindi sa mga okasyon lamang. Magandang isangguni ninyo rin sa isang abogado ang kasapatan ng mga ebidensyang hawak ninyo para sa pagpa-file ng petisyon sa korte at sa positibong resulta ng kaso.

  3. rhoena mae gomez-arellano

    October 27, 2013 at 8:12 am

    good day and greetings…. i am also a separated wife (not yet legally though) Presently i have a boyfriend who wants to marry me but unless am totally separated from my previous husband. My ex husband is already living with a new girl, have kids and our 21 year old son is living with them by choice. Will Presumption of death in this case be applicable? we have been separated since long does it take to file a case such as this? same costs as annulment?

    • engrjhez

      October 27, 2013 at 9:49 am

      No. You cannot make use of this option if you personally knew that your husband is still living. It is an option available only if you have a well founded belief that your husband is presumably dead. Even if you succeeded in obtaining a Judicial Decree of Presumptive Death and contracted a second marriage, the filing of Affidavit of Reappearance of the previous husband reinstates previous marriage and cancels subsequent marriage. Going to court must be with clean hands. Otherwise, there is no relief. Please seek attorney’s advise on the available remedies on the grounds of annulment.

      • B

        July 11, 2015 at 11:27 pm

        Engr. upon filling the case, ilang buwan possible na antayin para mababa ang hatol? Tsaka atleast give me idea kng magkanu range ng gastusin? thanks

      • engrjhez

        July 31, 2015 at 11:01 pm

        Pinakamabilis na marahil sa anim na buwan, subalit kalimitan ay taon din ang binibilang bago lumabas ang Decree. Ang halaga ng gastos ay depende, una sa lahat, sa “acceptance fee” ng abogado na hahawak ng inyong kaso.

  4. Bong

    January 14, 2014 at 1:18 am

    Ang Presumptive Death po ba ay ground for annulment? O Di na kaylangan mag pa Annul if nag apply ng Presumptive death? Usually magkano po ang fees for the Presumptive death case???

    • engrjhez

      January 14, 2014 at 8:50 am

      Ang Presumptive Death ay hindi po ground for annulment. Wala pong pinuputol na kasal sa paggamit ng Presumptive Death. Binibigyan lamang ng pagkakataon na muling makapag-asawa ang isang naiwan matapos ma-exhaust ang effort sa paghahanap at makalipas ang sapat na panahon ay may matatag na basehan na maaaring patay na ang kaniyang asawa. Valid and subsisting pa rin ang kanilang naunang kasal. Kung nakakuha na ng Judicial Decree of Presumptive Death at naikasal na sa ikalawang pagkakataon bago muling lumitaw ang asawang inakalang patay na, hindi mapuputol ang pangalawang kasal maliban sa pag-file ng nauna ng Affidavit of Reappearance. Para po sa mga fees, sumangguni sa inyong abogado o sa Family Courts malapit sa inyo.

  5. Angel

    February 20, 2014 at 3:56 pm

    Atty narinig ko po na pde lang ma void ung 2nd marriage kung mag aappear ung husband mo kung saan kayo kinasal nung 2nd husband mo. is that right?

    • engrjhez

      March 6, 2014 at 7:31 am

      Hindi po masyado malinaw ang tanong ninyo. Ang pwede pong mapawalang bisa ay ang pangalawang kasal. Subalit hindi sapat na lumitaw lamang siya matapos ang mahabang panahon. Kailangang mag-file pa siya ng Affidavit of Appearance kung nais niyang mapawalang bisa ang kasal sa pangalawa.

      • mhemhe

        March 6, 2014 at 3:43 pm

        Saan po xa pde mag file ng affidavit of appearance?may bayad di po ba yun? Kelangan din ba nya ng lawyer para ma void ung 2nd marriage?

      • engrjhez

        March 9, 2014 at 10:12 am

        The reappearing spouse may file his Affidavit of Reappearance to the local civil registrar where the marriage certificate was filed. (May bayad po ang pag-prepare ng affidavit at pag-notaryo nito; depende sa lugar, baka may minimal na filing fee na babayaran din sa local civil registrar) The filing of that Affidavit of Reappearance shall render the second marriage void by operation of the law without any further judicial proceeding.

      • angelina mendoza

        March 9, 2014 at 3:10 pm

        Im sorry po im confused po. Mag appear po siya sa civil registrar kung saan kinasal. 1st or 2nd marriage?

        Sent from Samsung Mobile

      • engrjhez

        March 10, 2014 at 9:15 pm

        Presumptive death po ang pinag-uusapan dito. Ibig sabihin, inakalang patay ang unang asawa kaya nagpakasal uli. Siyempre yung paglitaw ng unang asawa po ang tinutukoy. Nasa unang asawa kung gusto niyang mag-file ng reappearance para pawalang-bisa ang pangalawang kasal.

  6. richard oliveros

    August 3, 2014 at 11:12 pm

    good day po i was married at 2005 it was a quick marriage and courtship for 6 months. we stayed 5 years and she went to UK for her studies and work as a caregiver, after 1 year of work in UK she went back home to have her vacation which she was not staying at home she went to thailand and got married to one of the scouthland man and when she came back for 20 days married she went back to UK with all the force and harang sa kanya she left home without my conscent or permission so i keep my communication with here that she told me that she could process me as a visit visa and telling me to secure a passport in order for me to go to UK. But niloko ako ng asawa ko. tinawagan ko ulit sabi nya hindi kana lng mag punta dito without my knowledge she was pregnant with that scoutish man. she commintted bigamy. so i went to legal attorney and ask for advice they told me that we will send a UNDERTAKEN LETTER dated march 2010 both which are no longer have responsibility whatever acts they will do. until now august 2014 its been 4 years we dont have any communications. can you advice me what to do becuase i wanted to have wife and children same as normal family is living, hope you can advice me. and are the easiest thing to get remarry?

    thank you and all the best wishing you a quick reply from my inquiries.

    • engrjhez

      August 4, 2014 at 1:54 pm

      Sorry for this late reply.

      You may have problems in prosecuting “bigamy” because criminal law is territorial in nature; meaning the place where the crime is committed is jurisdictional. But even if you succeed in prosecuting bigamy, it is not a ground for annulment of (Philippine) marriage. If you are a Filipino and your spouse is a foreigner, and your spouse is allowed to remarry, you are also be allowed to remarry by reasons of international comity, subject to compliance of some formalities.

      There are a lot of other details which were not mentioned (like nationality of spouses, place of marriage, etc.). Unfortunately, I cannot give you a legal advice because I am not allowed by law (still a law student as of the moment). What I can advise is to follow your lawyer’s advice. You may have discussed with him/her you case with particularity.

  7. jo-ann arnigo

    August 14, 2014 at 5:28 pm

    good day po atty. ano po ang mangyayari kung by the time ng pagpublished po para presumtive death ay may nagpatunay na buhay pa ang taong ito?

    • engrjhez

      August 16, 2014 at 12:07 am

      Hi Ms. Jo-ann. I am not an attorney (yet). Still a law student. Wala naman po tayong publication requirement sa presumptive death. Kung may declaration na from court na presumptively dead na ang spouse, tapos nag-appear siya, kailangan niya mag file ng reappearance sa civil registrar. Otherwise, wala effect masyado yung pag-appear niyang muli.

  8. Jeni

    September 10, 2014 at 5:45 am

    Good day Mr. Future Attorney!

    Kailangan po ba na ang absent spouse ang mag file ng affidavit of reappearance? Ano po ang ibig sabihin ng phrase na at the instance of any interested person sa article 42 ng Family code? Thank you so much and have a great day!

    • engrjhez

      September 10, 2014 at 7:19 am

      Hindi naman po kailangan na siya na “reappearing” mismo. Ang sabi sa pangalawang talata ng Art. 42:

      “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. (emphasis supplied)

      Nangangahulugan ang “at the instance of any interested person” na yaong mga tao o grupo ng mga tao na may kinalaman lamang at maaapektuhan ng dalawang kasal (sa panig ng: una kung saan pinaniniwalaan patay na ang isa, at sa pangalawa na pinakasalan matapos ang “declaratation of presumptive death”). Maaaring ito mismo ang “reappearing spouse”, o kanilang mga magulang o mga anak (kung mayroon). Maaari din itong mga tao na apektado ng personal na pagkakautang, dating karelasyon kung saan siya ay may anak na sinusuportahan, o mga may katulad na sitwasyon.

  9. Chryz

    November 24, 2014 at 8:46 pm

    ask ko lang po sana sir/atty. kung pede mag file ng presumptive death against sa husband na 5 years na wala communication ung wife and husband…pede na po ba yun maging basis to file presumptive death para makapag remarry ung wife na naiwan??? thanks po

    • engrjhez

      December 2, 2014 at 9:58 am

      Hindi po sapat na dahilan ang walang communication and mag-asawa para mag-operate ang presumptive death. Kailangan ay na-exhaust na ng asawa ang lahat ng pamamaraan upang mahanap ang nawawalang asawa subalit bigo pa rin siya. Kailangang makumbinse rin ang hukuman na may dahilan upang paniwalaan na patay na nga ang nawawalang asawa at marapat na pagbigyan ang naiwan upang muling makapag-asawa.

      Pagtatama lang po, hindi pa po ako Atty. Pwede naman pong Engr. (dahil ako ay rehistradong Civil Engineer). Kasalukuyang mag-aaral pa lang po tayo ng batas.

  10. pam

    May 28, 2015 at 6:24 pm

    good day sir! when you say “na-exhaust na ng asawa ang lahat ng pamamaraan upang mahanap ang nawawalang asawa subalit bigo pa rin sya..” does that mean na I need to ask some statement of affidavit from his family na kahit sila ay hindi rin alam kung nasaan ang kanilang kapatid?

    • engrjhez

      June 30, 2015 at 8:35 pm

      You may do that. The thing is, korte ang mag-a-appreciate ng mga ebidensya na ip-present mo kung sapat na ba ang effort ng spouse.

      Paalala lang po: hindi ito substitute sa annulment. Binibigyan lamang ng pagkakataon ang surviving spouse na mag-asawa muli. Subalit mababale-wala ang pangalawang kasal kung muling lilitaw ang nawawalang asawa at magp-file ng Affidavit of Reappearance.

  11. eileen bautista

    June 25, 2015 at 3:10 pm

    ask ko lang po kung pwede mag-file ng presumptive death ung friend ko. 1 month lang sila nagsama kc umalis din puntang abroad ung babae more than 10 years na silang di nagsasama at wala na din communication. nag-file ng divorce ung babae doon noon pero di na niya alam kung na-grant o hindi. nag-file din ung friend ko dati ng presumptive death pero nakita sa record ng DFA na nagbakasyon ung babae dito sa Pinas kaya na-dismiss din. ano po ba dapat kong ifile? Annulment o pwede uli Presumptive Death kahit sa pagkakaalam ko nasa abroad lang siya. salamat!

    • engrjhez

      June 30, 2015 at 8:55 pm

      Hindi po substitute sa annulment ang declaration of presumptive death. Kung malinaw na buhay naman po ang asawa at hindi lamang makita (o ayaw magpakita), hindi po maaaring gamitin ang “presumptive death”. Kung annulment naman po ang ipa-file ninyo, kailangang mayroong ground kayo para i-annul ang kasal. Hindi po maaaring ma-annul ang isang kasal dahil sa kagustuhan lamang ng isa o parehas sa mag-asawa.

  12. Vilma

    July 10, 2015 at 11:49 pm

    Hello po.
    San po ako pwede magpagawa ng
    Declaration of presumptive death of a spouse for subsequent marriage? eto po ung overview ng case ko:
    Kasal po ako sa french 2007 last contact ko po s knya 2008.wala na po ako contact number din o cya email.ngtry din po ako sumulat s knya sa france 3 times pero la reply.
    Nagpunta po ako embassy pra makibalita pero khit cla po wala rin maitutulong skin pra macontact.ngyon po gusto ko n magpakasal ulit.ano pa po bang ibang katibayan ang pwede ko maibigy s korte?

    • engrjhez

      July 31, 2015 at 10:56 pm

      Ang Declaration of Presumptive Death ay inilalabas ng Korte matapos ang paglilitis. Mas mainam na kumuha kayo ng abogado upang mas maintindihan ninyo ang mga kailangan upang maihain ang petisyon sa Korte.

  13. Vilma

    July 10, 2015 at 11:56 pm

    Ask ko lng po ulit gaano naman po katagal bgo makuha ang Judicial Decree Declaration Presumptive of Death?

    • engrjhez

      July 31, 2015 at 10:59 pm

      Depende po ang bilis o tagal ng kaso sa maraming factors. Maaaring pinakamabilis sa loob ng anim na buwan, o maari rin namang abuting ng dalawang taon.

  14. Ethel

    December 29, 2015 at 7:54 pm

    Hello po, para saan po ba gamitin ang Presumptive Death aside from remarry, pwede po ba itong gamitin ko mag file ng claims sa Insurance at SSS ngayong 10 years ng missing asawa ko? wala ako planong mag asawa ulit gusto ko lang ma claim ang SSS benefits nya at insurance ok ba mag file ako ng Presumptive Death for this purpose?

    • engrjhez

      December 31, 2015 at 11:06 pm

      Ang nasa discussion ay presumptive death para sa muling pag-aasawa. Ayon sa ikalawang talata ng Art. 390 ng ating Civil Code: “The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.” Samakatwid, maaari na ninyong buksan ang usapin ng pagmamana at kasama na rin ang pagasikaso ng insurance at SSS benefits.

  15. lilia valera

    January 2, 2016 at 1:38 am

    hi, i am separated with my husband for 29 years. the last time i heared from him is he is living in another place with another woman and his life was 50/50 by then because of his attempted suicide. ido i need to file in court still to get papers for Presumptive Death in order to remarry?…thank you sir ..more power

    • engrjhez

      February 8, 2016 at 11:24 am

      Presumptive Death operates only in good faith. If the you have reasons to believe that your spouse is not dead but in some other place, you cannot successfully invoke it. A speculation is not enough. What you need to do is to prove before the court that you fail to find him despite diligent efforts.

  16. Cynthia

    April 5, 2016 at 10:25 am

    Hi! I got married last 2012 with an American. He stayed in the Phils for almost a year. Since 2014 until now we never had communication. I cant even trace his account in facebook or any email. Do I have a chance to file for a “Presumptive Death”? What evidences then shall I prepare?

    • engrjhez

      April 8, 2016 at 11:12 pm

      You can only avail of the “presumptive death” for the purposes of another marriage if the disappearing spouse is absent for at least four consecutive years, and you have a well founded belief that he is already dead. You must also show evidence that you have exerted earnest efforts in searching for him but to no avail.

  17. maridel

    September 10, 2016 at 10:08 pm

    Can a person with an annotation or declare in the marriage contract still can travel abroad? He just found out when he got the marriage contract from the NSO. Can he remarry if the EX-spouse had given an approval by the JUDICIAL the DECLARATION OF PRESUMPTIVE DEATH already? In short can he marry again bcOz he had been declared dead by his wife? He even had a facebook account, and very much in knowledge that he is alive bcoz their children visits their father. Despite of that, the court released a decision of PRESUMPTIVE DEATH.

    • engrjhez

      September 16, 2016 at 10:26 am

      An annotation in the marriage contract has nothing to do with the right to travel abroad, for as long as you have a valid passport and you do not have any Hold Departure Order.

      According to you, if there had already been a court declaration that the absent spouse is presumptively dead, then YES, the present spouse can remarry. However, such marriage shall be declared as void upon reappearance of the supposedly dead spouse and his filing of the affidavit of reappearance.

  18. Gary

    December 7, 2016 at 11:58 am

    My Fiancee married in Aug 1992 and by Nov 92 he left to go back to Japan. In 24 years she has not seen or heard from him. I would like to marry her and bring her to the states. We have sent request to the Japan embassy to find him but no reply. So will this article fix this issue? Will both government accept this judgement?

    • engrjhez

      December 13, 2016 at 9:52 am

      Let’s make this clear. YY (woman) is married to ZZ (man) in 1992. YY never heard from ZZ in 24 years. Now you like to marry YY.

      You did not mention the nationalities of YY and ZZ. It may play a factor. Also, declaration of presumptive death requires earnest efforts on the part of the present spouse to look for the absent spouse. Without such effort, our courts will simply dismiss the petition.


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