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CASE IN POINT | “Love cannot endure indifference. It needs to be wanted.”



As a rule, if a person has an existing marriage, whether valid or void, he cannot remarry. The exception is, if there is a juridical decree declaring the absent spouse presumptively dead. The rule however, requires a well-founded belief that the absent spouse is already dead. Strict standard approach is used in such an action.

Maria and Jerry were married on September 20, 1997. They lived together as husband and wife in their conjugal dwelling in Agan Homes, Koronadal City, South Cotabato. Sometime in January 1998, the couple had a violent quarrel brought about by: (1) the respondent’s inability to reach “sexual climax” whenever she and Jerry would have intimate moments; and (2) Jerry’s expression of animosity toward the respondent’s father.

After their quarrel, Jerry left their conjugal dwelling and this was the last time that the respondent ever saw him. Since then, she had not seen, communicated nor heard anything from Jerry or about his whereabouts.

On May 21, 2002, or more than four (4) years from the time of Jerry’s disappearance, she filed before the RTC a petition for her husband’s declaration of presumptive death. She claimed that she had a well-founded belief that Jerry was already dead. She alleged that she had inquired from her mother-in-law, her brothers-in-law, her sisters-in-law, as well as her neighbors and friends, but to no avail. In the hope of finding Jerry, she also allegedly made it a point to check the patients’ directory whenever she went to a hospital. All these earnest efforts, she claimed, proved futile, prompting her to file the petition in court.

The RTC issued an order granting the respondent’s petition and declaring Jerry presumptively dead. It concluded that the respondent had a well-founded belief that her husband was already dead since more than four (4) years had passed without the former receiving any news about the latter or his whereabouts.

What are the essential requisites for the declaration of presumptive death of a spouse under Article 41 of the Family Code?

Answer: Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior spouse had been absent for four consecutive years and the present spouse had a well-founded belief that the prior spouse was already dead. Under Article 41 of the Family Code, there are four (4) essential requisites for the declaration of presumptive death:

That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code;

That the present spouse wishes to remarry;
That the present spouse has a well-founded belief that the absentee is dead; and
That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee. (Rep. v. Maria Fe Espinosa Cantor, G.R. No. 184621, December 10, 2013 citing Republic v. Nolasco, G.R. No. 94053, March 17, 1993, 220 SCRA 20).

The burden of proof rests on the present spouse to show that all the requisites under Article 41 of the Family Code are present. Since it is the present spouse who, for purposes of declaration of presumptive death, substantially asserts the affirmative of the issue, it stands to reason that that burden of proof lies with him/her. He who alleges a fact has the burden of proving it and mere allegation is not evidence. (Guidangen v. Wooden, G.R. No. 174445, February 15, 2012, 666 SCRA 119; Republic v. Nolasco, G.R. No. 94053, March 17, 1993, 220 SCRA 20).

The law does not define what is meant by “well-founded belief.” It depends upon the circumstances of each particular case. Its determination, so to speak, remains on a case-to-case basis. To be able to comply with this requirement, the present spouse must prove that his/her belief was the result of diligent and reasonable efforts and inquiries to locate the absent spouse and that based on these efforts and inquiries, he/she believes that under the circumstances, the absent spouse is already dead. It requires exertion of active effort (not a mere passive one).

Courts fully aware of the possible collusion of spouses in nullifying their marriage, has consistently applied the “strict standard” approach. This is to ensure that a petition for declaration of presumptive death under Article 41 of the Family Code is not used as a tool to conveniently circumvent the laws. Courts should never allow procedural shortcuts and should ensure that the stricter standard required by the Family Code is met. In Republic of the Philippines v. Court of Appeals (Tenth Div.), it was said:

In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration of presumptive death of one’s spouse, the degree of due diligence set by this Honorable Court in the above–mentioned cases in locating the whereabouts of a missing spouse must be strictly complied with. There have been times when Article 41 of the Family Code had been resorted to by parties wishing to remarry knowing fully well that their alleged missing spouses are alive and well. It is even possible that those who cannot have their marriages xxx declared null and void under Article 36 of the Family Code resort to Article 41 of the Family Code for relief because of the xxx summary nature of its proceedings. (Republic v. Nolasco, G.R. No. 94053, March 17, 1993, 220 SCRA 20).
The application of this stricter standard becomes even more imperative if we consider the State’s policy to protect and strengthen the institution of marriage. Since marriage serves as the family’s foundation and since it is the state’s policy to protect and strengthen the family as a basic social institution, (Constitution, Article 2, Section 12) marriage should not be permitted to be dissolved at the whim of the parties. In interpreting and applying Article 41, this is the underlying rationale – to uphold the sanctity of marriage. Arroyo, Jr. v. Court of Appeals, G.R. Nos. 96602 and 96715, November 19, 1991, 203 SCRA 750, 761,  reflected this sentiment when it was stressed:

The protection of the basic social institutions of marriage and the family in the preservation of which the State has the strongest interest; the public policy here involved is of the most fundamental kind. In Article II, Section 12 of the Constitution there is set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. (Rep. v. Maria Fe Espinosa Cantor, G.R. No. 184621, December 10, 2013 citing Republic v. Nolasco, G.R. No. 94053, March 17, 1993, 220 SCRA 20).

The requisite judicial declaration of presumptive death of the absent spouse (and consequently, the application of a stringent standard for its issuance) is also for the present spouse’s benefit. It is intended to protect him/her from a criminal prosecution of bigamy under Article 349 of the Revised Penal Code which might come into play if he/she would prematurely remarry sans the court’s declaration.

Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the present spouse’s good faith in contracting a second marriage is effectively established. The decision of the competent court constitutes sufficient proof of his/her good faith and his/her criminal intent in case of remarriage is effectively negated. (Manuel v. People, 512 Phil. 818, 836 [2005]). Thus, for purposes of remarriage, it is necessary to strictly comply with the stringent standard and have the absent spouse judicially declared presumptively dead. (Rep. v. Cantor, G.R. No. 184621, December 10, 2013).

In his dissenting opinion, Justice Leonen quoted Henry Ward Beecher when he said:

“Love cannot endure indifference. It needs to be wanted. Like a lamp it needs to be fed out of the oil of another’s heart or its flames burn low.”

and said:

A wife, abandoned with impunnity, also deserves to be happy. (Republic vs. Maria Fe Espinosa Cantor, G.R. No. 184621, December 10, 2013).

Dean Ed Vincent S. Albano is the Bar Review Director of Albano Bar Review Center. He authored books/reviewers in Civil Law, Political,  Law, Remedial Law and Legal Ethics.

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