Separation-in-Fact: Misconception

One day, a client asked me whether she could remarry again.  She has been separated from her husband for almost 15 years already.  Is it true that her marriage already expires considering of the number of years she has been separated with her husband?

It is one of the many misconceptions people are getting from the circle of friends.  Accordingly, one could remarry again if he or she has been separated with his/her wife/husband for a number of years.  For example, in the situation mentioned in this post, considering that the spouses are separated for more than 15 years already, it would render their marriage null and void.

The separation that is tackled here is one that is known as separation-in-fact.  Or the spouses have just agreed to separate without the benefit of any court order.  In short, their separation has not been sanctioned by any order of the court.

Separation-in-Fact, no matter how long it may be, does not severe the marriage bond of the spouses.  The spouses remain married to each other.  Their marriage remains valid and existing.  The separation of the parties would not affect the validity of the marriage.

In this situation, she cannot remarry.  She cannot contract another marriage because of the existing valid marriage.  

Granting without accepting that she would be able to contract a subsequent marriage, what would be the effects?

The subsequent marriage is valid.  Yes, there would be now two valid marriages.  However, the subsequent marriage can be annulled in view of the previous marriage.  Unless and until the second marriage is annulled, it remains valid. It is not automatic to declare the second marriage as null and void.  There must be a petition to that effect first.

The wife who contracted a subsequent marriage can be prosecuted for the crime of bigamy. 

So, do not get fooled from the people who would say that the marriage would expire if the parties have separated-in-fact for more than 15 years.  There is no law granting or providing such.  

The marriage contract has no expiry date, so to speak.

For the client to remarry again, she must file an annulment case, if her case falls within the marriages that can be annulled.  If her husband can no longer be found despite the effort she exerted to locate him, she may petition the court to presumptively declare her husband as dead so as she could remarry again.

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