Dear Atty. Peachy,

My husband and I got married in 2012. In 2015, the passenger ferry where my husband was riding capsized. The coast guard did not find the body of my husband and he is still missing until now. In 2022, I fell in love with someone and he proposed to me last Christmas.

Some people are telling me that I can already get married because my husband has been missing for more than seven years already. Others, on the other hand, are telling me that my subsequent marriage shall be null and void because I am still married to my husband in the eyes of the law.

What can I do to ensure that my subsequent marriage will be valid? I love my husband but, after more than seven years of mourning his loss, I think it is time for me to move on. I hope you can guide me as to what I can do under my circumstances.

Beth

Dear Beth,

Under Article 41 of the Family Code of the Philippines, if a spouse has been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead, he or she can file a summary proceeding to have the absent spouse declared presumptively dead, in order to remarry. The period of four years is shortened to two years if the absent spouse was on board a vessel lost during a sea voyage or an airplane which is missing, or a member of the armed forces taking part in a war or in danger of death under similar circumstances.

In the case of Republic vs Catubag (G.R. 210580, 18 April 2018), the Supreme Court held that the following requisites must be complied with for the declaration of presumptive death to prosper:

The absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391 of the Civil Code; 

The present spouse wishes to remarry;

The present spouse has a well-founded belief that the absentee is dead.

The present spouse files for a summary proceeding for the declaration of presumptive death of the absentee.

You should first file a summary proceeding for the declaration of presumptive death of your husband before contracting another marriage, to ensure that your subsequent marriage will not subsequently be declared null and void.

Atty. Peachy Selda-Gregorio