Short answer. Only on recording. Article 42 of the Family Code is explicit: the subsequent marriage is automatically terminated by the recording of the affidavit of reappearance in the civil registry, not by the mere physical return of the absent spouse. Until the affidavit is recorded, the subsequent marriage legally continues.
What the law says
The subsequent marriage referred to in the preceding Article shall be automatically terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous marriage or declaring it void ab initio.
Family Code, Article 42 — Reappearance of the Absent Spouse. Read the full provision →
Physical return is not enough
Article 42 of the Family Code sets a specific, formal mechanism for ending a subsequent marriage that was contracted while the first spouse was presumed dead. The key word is recording — not reappearance, not confrontation, not the absent spouse's mere presence in the country. The subsequent marriage shall be automatically terminated by the recording of the affidavit of reappearance in the civil registry. Until that affidavit is filed and recorded, the subsequent marriage remains legally in force regardless of the absent spouse's physical return.
What the affidavit of reappearance requires
Article 42 specifies that a sworn statement of the fact and circumstances of reappearance must be recorded in the civil registry of the residence of the parties to the subsequent marriage. This affidavit may be filed by any interested person — not only the absent spouse or the parties to the subsequent marriage. However, the spouses of the subsequent marriage are entitled to due notice before recording. If the fact of reappearance is disputed — perhaps the present spouse doubts that it is truly the absent spouse — the matter may be determined by the courts before the recording takes effect.
The exception: prior annulment or declaration of nullity
Article 42 also carries an important exception. The automatic termination does not occur if there is a judgment annulling the previous marriage or declaring it void ab initio. If the previous marriage was already declared void or annulled by a court before the absent spouse reappears, there is no first marriage to revive. The subsequent marriage is already on a different legal footing — it was not contracted in the good-faith belief that the first spouse was dead following a presumption of death, because the first marriage is already gone.
What this means practically
If you are the absent spouse who has returned, or if you are the present spouse or any other interested person, the legal step to terminate the subsequent marriage is clear: file the affidavit of reappearance and have it recorded. Until that happens, the subsequent marriage continues to have legal effect. If you are a party to the subsequent marriage and the absent spouse returns without immediately filing the affidavit, you are still married under that subsequent marriage in the eyes of the law. Consulting a lawyer can help you navigate the procedural steps and ensure the recording is done correctly with proper notice to all concerned.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- Noel Buenaventura vs. Court of Appeals, et al, G.R. No. 127358, March 31, 2005 — read the decision on LawPhil →
- Republic of the Philippines vs. Leilanie Dela Cruz Fenol, G.R. No. 212726, June 10, 2020 — read the decision on LawPhil →
- Republic of the Philippines vs Jose B. Sareñogon, Jr, G.R. No. 199194, February 10, 2016 — read the decision on LawPhil →
- Republic of the Philippines vs. Edna Orcelino-Villanueva, G.R. No. 210929, July 29, 2015 — read the decision on LawPhil →