Husband presumptively dead, wife can remarry conditionally

Persida Acosta

Persida Acosta

Dear PAO,

What will happen to the subsequent marriage of a wife, whose previous husband who has been declared presumptively dead reappears?

Dear Olga,

If a husband has been declared by the court presumptively dead, his wife shall be eligible to remarry. This is according to Article 41 of the Family Code of the Philippines, which provides:

“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.”

On the other hand, if the absent husband reappears and registers his reappearance in the Civil Registry of the place where his wife and the latter’s new husband reside, the subsequent marriage of his wife shall be automatically terminated, unless there is a judgment annulling the previous marriage or declaring the same null and void. (Article 42, Ibid.)

It is worth mentioning at this juncture the following effects of the termination of the subsequent marriage above-mentioned pursuant to Article 43 of the Family Code of the Philippines, to wit:

“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 the 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.”

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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1 Comment

  1. Ms Armi Ardanas on

    My parents had conjugal property in the philippines, my mother passed away 4 years ago, my father remarry to almost half of his age, we have apt with income of at least 20,000 pesos a month, my father & his new wife live on that said property and they are the one collecting the income of the apt. As a legitimate son & daughter do we have the right to get half of the property & the income of the apt. My fathers second wife had 3 children living with them too, pls give advice