Declaring a spouse presumptively dead

Persida Acosta

Persida Acosta

Dear PAO,
I married my wife some ten years ago, but just after a few months of being together, I lost my love for her. She was a prolific liar, and she often engaged in illicit relationships. I have considered her dead since we separated in fact a little more than nine years ago. She now lives with another man in Jolo. May I have her declared presumptively dead, since that is what I regard her anyway and I am ready to marry a better person already?

Sincerely yours,

Dear Jonathan,
Please be informed that under the Family Code, there is a strict guideline in order for a declaration of presumptive death to prosper:

Art. 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 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) (Emphasis added)

Clearly, the law has set out a strict parameter regarding a declaration of presumptive death, in order for the present spouse to remarry – there must be a “well founded belief” that the absent spouse was already dead. The situation that you presented in your lettercannot serve as sufficient basis for a well founded belief that she is already dead. The same may not serve as a ground for a declaration of presumptive death in order for you to remarry. In fact your knowledge of your wife’s current situation, that she is already in a relationship with someone else and is living in Jolo, belies the very essence of the law’s intent, which is to presume a person dead for lack of knowledge of his or her whereabouts and current condition given the circumstances surrounding his or her disappearance, for purposes of remarriage.

However, there may be other circumstances, which you failed to mention that would warrant the proper dissolution of your marital ties with your wife that are suitable for the filing of the appropriate petition for the annulment or nullification of your marriage. Nonetheless, the discussion about this is an entirely different matter.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to


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