Dear Smart Parenting, My ex-wife left to work abroad but has not communicated with me for more than 5 years now. I don’t even know where she resides or how to contact her. Even her relatives there don’t seem to know her whereabouts. During the time that she has been away, I met someone whom I’ve fallen in love with and I’d like to marry her. Can I do that, since my wife seems to have abandoned me?
There appears to be a common misconception that after several years of separation from a spouse, one is free to automatically remarry, but I’m afraid that things are not that simple. Whatever the reason, a declaration of nullity is still needed from a court before one can remarry. If you remarry without first obtaining a declaration of nullity of your first marriage, then you shall become liable for the crime of bigamy.
Abandonment of a spouse is just a ground for legal separation under our law, which does not allow you to remarry. But if you can prove that your spouse’s abandonment is a manifestation of her psychological incapacity to comply with the essential obligations of marriage, then you may have a ground for annulment under Article 36 of the Family Code. For this purpose, it is best to consult a licensed psychologist.
Article 41 of the Family Code also provides: “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.” Now this means that if you suspect your wife might be dead because your diligent efforts to locate her have not been successful, then you can file a summary proceeding for the declaration of her presumptive death. You have to prove, however, that she has been missing for four years or more, and that you have a well-founded belief that your spouse may be dead. Once the court declares the presumptive death of your wife, then you will be free to remarry. However, the law is very clear on one fact: If you remarry, and your wife later reappears, then your second marriage is automatically voided. If you plan on moving abroad, take note also that some countries require a death certificate of the first spouse as proof that your second marriage is valid. This might be difficult, considering that the death is just presumptive.
To repeat, just because you have been separated from your wife for several years does not mean that you are free to remarry. A marriage does not have an expiration date, and it cannot be terminated upon the decision of one or both of the parties. In every case, a declaration of the nullity of the marriage must be obtained from a court before one can remarry.
Atty. Nikki Jimeno
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