Text of the provision
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.
(83a)
Family Code of the Philippines, Executive Order No. 209, approved July 6, 1987. The Code took effect on August 3, 1988 (Republic v. Orbecido III, G.R. No. 154380, October 5, 2005). Reproduced in full.
What this article means
A marriage contracted while an earlier marriage is still subsisting is bigamous and void — this is the ground listed in Article 35(4). Article 41 sets out the single narrow exception: where the prior spouse has been absent long enough, and under the right conditions, the present spouse may lawfully remarry and the later marriage is valid rather than bigamous.
The absence periods are strict. The ordinary period is four consecutive years. It drops to two years only where the disappearance occurred under circumstances of danger of death described in Article 391 of the Civil Code — for example a lost vessel, a downed aircraft, or a person in the armed forces who took part in war.
Two requirements, not one
Time alone is never enough. The present spouse must also hold a well-founded belief that the absent spouse is already dead — a belief the Supreme Court has read strictly, requiring active and diligent efforts to locate the missing spouse, not passive waiting. And before remarrying, the present spouse must obtain a judicial declaration of presumptive death in the summary proceeding this Code provides. Remarrying on the strength of the four years alone, without that declaration, exposes the present spouse to a bigamy prosecution.
Related provisions
- Article 35(4) — bigamous and polygamous marriages, void from the beginning, from which this article carves the exception.
- Article 42 — what happens when the absent spouse reappears: the subsequent marriage is automatically terminated.
- Article 391, Civil Code — the danger-of-death circumstances that shorten the period to two years.
Cases interpreting this article
- The leading authorities on the strict "well-founded belief" standard and the requirement of a judicial declaration of presumptive death will be added here as each is verified against primary sources.