In short
This subsection has three articles and each settles a different question. Article 436 says what must be proved: to declare the divorce on grounds of absence it is enough to attach to the petition the certified copy of the judicial resolution declaring the state of absence. A single document. And it adds that the court may dispose summarily if the absentee’s interests are not compromised by the expedited proceeding; note the summary route is a faculty of the court and not a right of whoever asks. Article 437 anticipates the most obvious conflict of interest: if the absent spouse’s guardian is the petitioning spouse themselves, or someone who cannot represent them in the divorce, the absentee is appointed a defensor judicial for that sole purpose. That is, nobody represents both themselves and the opposing party at once. And Article 438 answers the question that causes the most anxiety: the reappearance of the absentee does not revive the marital tie already dissolved by reason of the declaration of absence, even if that absence was involuntary. The final phrase matters: the article expressly covers whoever disappeared without meaning to. What this subsection does not explain is how the declaration of absence is obtained, which is the entry requirement and lives in another Title of the Code, nor what the court weighs in concluding the absentee’s interests are not compromised.
What is it?
It is Subsection Three of Section Two of Chapter III of Title IV of Book Two of the Civil Code of 2020, Articles 436 to 438: divorcing a spouse declared absent.
Who can do it?
Anyone married to a person already judicially declared to be in a state of absence.
Requirements
- To declare the divorce for absence it is enough to attach the certified copy of the judicial resolution declaring the state of absence.Verified against the official source
- The court may dispose summarily if the absentee’s interests are not compromised by the expedited proceeding.Verified against the official source
- If the absentee’s guardian is the petitioning spouse, or someone who cannot represent them, a defensor judicial is appointed.Verified against the official source
- That defensor judicial is appointed for the sole purpose of representing the absentee in the divorce.Verified against the official source
- The absentee’s reappearance does not revive the already dissolved marital tie, even if the absence was involuntary.Verified against the official source
Documents you need
Cost
Step by step
Step 1: Obtain the declaration of absence
Article 436: it is the document to attach to the petition, in certified copy.
Step 2: That suffices as proof
The same article says attaching that copy suffices to declare the divorce for absence.
Step 3: The summary route is the court’s call
It may dispose summarily if the absentee’s interests are not compromised by the expedited proceeding.
Step 4: Check who the absentee’s guardian is
Article 437: if it is you, or someone who cannot represent them, a defensor judicial is needed.
Step 5: That defender is only for this
The same article appoints them for the sole purpose of representing the absentee in the divorce.
Step 6: And if they turn up later, nothing revives
Article 438: reappearance does not revive the dissolved tie, even if the absence was involuntary.
Where to do it
These three articles do not describe the court filing procedure. The Code does not explain here how the declaration of absence is obtained, which is the entry requirement of this whole subsection and lives in another Title; this site covers it separately. It does not say what the court weighs in concluding the absentee’s interests are not compromised by the expedited proceeding. It does not say who may be appointed defensor judicial, how they are appointed, or what faculties they hold. And it publishes no fees or processing times. None of those gaps is filled here.
How long it takes
What to do if something goes wrong
The question that recurs most in these cases is not procedural but human: if the person turns up later, am I married to them again? Article 438 answers no, and it does so leaving no gap: the reappearance of the absentee does not revive the marital tie already dissolved by reason of the declaration of absence, even if that absence was involuntary. That last phrase is the one that matters, because it covers precisely the hardest case, that of someone who disappeared without meaning to. The second thing worth knowing is how little must be proved. Article 436 does not ask you to reconstruct the story or document the search: it is enough to attach to the petition the certified copy of the judicial resolution declaring the state of absence. All the weight sits in that document, obtained beforehand and in another proceeding. That said, speed is not guaranteed: the same article says the court may dispose summarily if the absentee’s interests are not compromised by the expedited proceeding, so the fast route is its faculty and not your right, and the article does not say what it weighs in deciding. The third is a detail that can stall the case if not anticipated: Article 437 requires appointing the absentee a defensor judicial when their guardian is the very spouse seeking the divorce, or someone who cannot represent them in that proceeding. It is common for the spouse to be precisely who was left as guardian after the declaration of absence, so it is worth arranging that appointment from the start rather than discovering it midway. MiPRFácil does not represent anyone in court and gives no legal advice.
Common mistakes
- Fearing the absentee’s reappearance revives the marriage: Article 438 says it does not.
- Believing the involuntariness of the absence changes that: the article expressly covers it.
- Attempting the absence divorce without the judicial resolution declaring the state of absence.
- Gathering more evidence than needed: Article 436 says attaching that certified copy suffices.
- Treating the summary route as guaranteed: it is the court’s faculty, conditioned on the absentee’s interests.
- Representing the absentee while being the petitioning spouse: Article 437 requires a defensor judicial.
- Discovering midway that the appointment is needed instead of anticipating it.
- Looking in this subsection for how the declaration of absence is obtained: it lives in another Title.
Frequently asked questions
If my former spouse turns up, are we married again?
No. Article 438 says the absentee’s reappearance does not revive the dissolved tie, even if the absence was involuntary.
What must I prove for this divorce?
Article 436 says it is enough to attach the certified copy of the judicial resolution declaring the state of absence.
Does the case always go the summary route?
Not necessarily. The court may dispose summarily if the absentee’s interests are not compromised by the expedited proceeding.
I am my absent spouse’s guardian. May I represent them?
Article 437 says in that case the absentee is appointed a defensor judicial for the sole purpose of the divorce.
Official sources
These are the government pages this guide is based on.
- Poder Judicial de Puerto Rico
Poder Judicial
bvirtualogp.pr.gov
Last verified
September 13, 2026
MiPRFácil is an independent informational website and is not affiliated with, endorsed by, or operated by the Government of Puerto Rico or any government agency.
MiPRFácil does not submit applications on your behalf.
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Declaring a missing person absent
A year without news, a court, and someone left in charge of their accounts and debts until they turn up.
A spouse who serves as guardian may not seek divorce until the guardianship closes
Article 442 of the Civil Code of 2020 bars the guardian spouse from seeking divorce from their ward until the guardianship ends and final accounts are rendered.
The individual-petition judgment does not describe the conduct behind the divorce
Article 434 of the Civil Code of 2020 dissolves the tie without describing the specific conduct behind an individual petition for irreparable rupture.
From provisional possession to the absentee’s presumed death
Three years to enter possession, ten to ask for presumed death, and four to claim if they return.
The dissolution does not prejudice good-faith third parties until it is inscribed
Article 418 of the Civil Code of 2020 requires noting the dissolution in the margin of the marriage inscription and makes it opposable only from then.
Guardianship: how a guardian is appointed and what they can and cannot do
The four types of guardianship, the bond and its exemptions, and why the role does not begin until registration.