Special Proceedings Rule 107

[1] G.R. No.
214243, March 16, 2016 Assailed in this petition for review on certiorari1 are the Decision2 dated June
17, 2013 and the Resolution3 dated September 2, 2014 rendered by the
REPUBLIC OF THE PHILIPPINES, Petitioner, v. NILDA B. TAMPUS, Court of Appeals (CA) in CA-G.R. SP No. 04588, which affirmed the
Respondent. Decision4 dated July 29, 2009 of the Regional Trial Court of Lapu-Lapu City,
Branch 54 (RTC) declaring respondent's spouse, Dante L. Del Mundo, as
Civil Law; Family Law; Persons and Family Relations; Judicial Declaration of
presumptively dead.
Presumptive Death; Before a judicial declaration of presumptive death can be
obtained, it must be shown that the prior spouse had been absent for four (4)
The Facts
consecutive years and the present spouse had a well-founded belief that the prior
spouse was already dead.—Before a judicial declaration of presumptive death can be
obtained, it must be shown that the prior spouse had been absent for four consecutive Respondent Nilda B. Tampus (Nilda) was married to Dante L. Del Mundo
years and the present spouse had a well-founded belief that the prior spouse was (Dante) on November 29, 1975 in Cordova, Cebu. The marriage ceremony
already dead. Under Article 41 of the Family Code of the Philippines (Family Code), was solemnized by Municipal Judge Julian B. Pogoy of Cordova, Cebu.5
there are four (4) essential requisites for the declaration of presumptive death: (1) Three days thereafter, or on December 2, 1975, Dante, a member of the
that the absent spouse has been missing for four (4) consecutive years, or two (2) Armed Forces of the Philippines (AFP), left respondent, and went to Jolo,
consecutive years if the disappearance occurred where there is danger of death under Sulu where he was assigned. The couple had no children.6
the circumstances laid down in Article 391 of the Civil Code; (2) that the present
spouse wishes to remarry; (3) that the presaent spouse has a well-founded belief that Since then, Nilda heard no news from Dante,. She tried everything to locate
the absentee is dead; and (4) that the present spouse files a summary proceeding for
him, but her efforts proved futile.7 Thus, on April 14, 2009, she filed before
the declaration of presumptive death of the absentee. The burden of proof rests on
the present spouse to show that all the foregoing requisites under Article 41 of the the RTC a petition8 to declare Dante as presumptively dead for the purpose
Family Code exist. Since it is the present spouse who, for purposes of declaration of of remarriage, alleging that after the lapse of thirty-three (33) years without
presumptive death, substantially asserts the affirmative of the issue, it stands to any kind of communication from him, she firmly believes that he is already
reason that the burden of proof lies with him/her. He who alleges a fact has the dead.
burden of proving it and mere allegation is not evidence.
Same; Same; Same; The “well-founded belief” in the absentee’s death requires Due to the absence of any oppositor, Nilda was allowed to present her
the present spouse to prove that his/her belief was the result of diligent and evidence ex parte. She testified on the allegations in her petition, affirming
reasonable efforts to locate the absent spouse and that based on these efforts and that she exerted efforts to find Dante by inquiring from his parents, relatives,
inquiries, he/she believes that under the circumstances, the absent spouse is already
and neighbors, who, unfortunately, were also not aware of his whereabouts.
dead.—The “well-founded belief” in the absentee’s death requires the present spouse
to prove that his/her belief was the result of diligent and reasonable efforts to locate She averred that she intends to remarry and move on with her life.10
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 necessitates exertion of The RTC Ruling
active effort, not a passive one. As such, the mere absence of the spouse for such
periods prescribed under the law, lack of any news that such absentee spouse is still In a Decision11 dated July 29, 2009, the RTC granted Nilda's petition and
alive, failure to communicate, or general presumption of absence under the Civil declared Dante as presumptively dead for all legal purposes, without
Code would not suffice. The premise is that Article 41 of the Family Code places prejudice to the effect of his reappearance. It found that Dante left the
upon the present spouse the burden of complying with the stringent requirement of conjugal dwelling sometime in 1975 and from then on, Nilda never heard
“well-founded belief” which can only be discharged upon a showing of proper and from him again despite diligent efforts to locate him. In this light, she believes
honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s that he had passed away especially since his last assignment was a combat
whereabouts, but more importantly, whether the latter is still alive or is already dead.
mission. Moreover, the RTC found that the absence of thirty-three (33) years
DECISION was sufficient to give rise to the presumption of death.12
PERLAS-BERNABE, J.:
₯Special Proceedings (Rule 107- Absentees) Page 1 of 25

Dissatisfied, the Office of the Solicitor General (OSG), on behalf of petitioner remarry; (3) that the present spouse has a well-founded belief that the
Republic of the Philippines (Republic), filed a petition for certiorari13 before absentee is dead; and (4) that the present spouse files a summary
the CA assailing the RTC Decision. proceeding for the declaration of presumptive death of the absentee.20
The CA Ruling The burden of proof rests on the present spouse to show that all the
foregoing requisites under Article 41 of the Family Code exist. Since it is the
In a Decision14 dated June 17, 2013, the CA denied the OSG's petition and present spouse who, for purposes of declaration of presumptive death,
affirmed the RTC Decision declaring Dante as presumptively dead. The CA substantially asserts the affirmative of the issue, it stands to reason that the
gave credence to the RTC's findings that Nilda had exerted efforts to find her burden of proof lies with him/her. He who alleges a fact has the burden of
husband by inquiring from his parents, relatives, and neighbors, who likewise proving it and mere allegation is not evidence.
had no knowledge of his whereabouts. Further, the lapse of thirty-three (33)
years, coupled with the fact that Dante had been sent on a combat mission to The "well-founded belief in the absentee's death requires the present spouse
Jolo, Sulu, gave rise to Nilda's well-founded belief that her husband is to prove that his/her belief was the result of diligent and reasonable efforts to
already dead.15 locate the absent spouse and that based on these efforts and inquiries,
he/she believes that under the circumstances, the absent spouse is already
Moreover, the CA opined that if Dante were still alive after many years, it dead. It necessitates exertion of active effort, not a passive one. As such, the
would have been easy for him to communicate with Nilda, taking into mere absence of the spouse for such periods prescribed under the law, lack
consideration the fact that Dante was only 25 years old when he left and, of any news that such absentee spouse is still alive, failure to communicate,
therefore, would have been still physically able to get in touch with his wife. or general presumption of absence under the Civil Code would not suffice.22
However, because neither Nilda nor his own family has heard from him for The premise is that Article 41 of the Family Code places upon the present
several years, it can be reasonably concluded that Dante is already dead.16 spouse the burden of complying with the stringent requirement of "well-
founded belief which can only be discharged upon a showing of proper and
The OSG's motion for reconsideration was denied in a Resolution dated
honest-to-goodness inquiries and efforts to ascertain not only the absent
September 2, 2014; hence, this petition.
spouse's whereabouts, but more importantly, whether the latter is still alive or
The Issue Before the Court is already dead.
The sole issue for the Court's resolution is whether or not the CA erred in In this case, Nilda testified that after Dante's disappearance, she tried to
upholding the RTC Decision declaring Dante as presumptively dead. locate him by making inquiries with his parents, relatives, and neighbors as to
his whereabouts, but unfortunately, they also did not know where to find him.
The Court's Ruling Other than making said inquiries, however, Nilda made no further efforts to
find her husband. She could have called or proceeded to the AFP
The petition has merit. headquarters to request information about her husband, but failed to do so.
She did not even seek the help of the authorities or the AFP itself in finding
Before a judicial declaration of presumptive death can be obtained, it must be
him. Considering her own pronouncement that Dante was sent by the AFP
shown that the prior spouse had been absent for four consecutive years and
on a combat mission to Jolo, Sulu at the time of his disappearance, she could
the present spouse had a well-founded belief that the prior spouse was
have inquired from the AFP on the status of the said mission, or from the
already dead. Under Article 4119 of the Family Code of the Philippines
members of the AFP who were assigned thereto. To the Court's mind,
(Family Code), there are four (4) essential requisites for the declaration of
therefore, Nilda failed to actively look for her missing husband, and her
presumptive death: (1) that the absent spouse has been missing for four (4)
purported earnest efforts to find him by asking Dante's parents, relatives, and
consecutive years, or two (2) consecutive years if the disappearance
friends did not satisfy the strict standard and degree of diligence required to
occurred where there is danger of death under the circumstances laid down
create a "well-founded belief of his death.
in Article 391 of the Civil Code; (2) that the present spouse wishes to

Furthermore, Nilda did not present Dante's family, relatives, or neighbors as
witnesses who could have corroborated her asseverations that she earnestly
looked for Dante. These resource persons were not even named. In Republic
v. Nolasco,24 it was held that the present spouse's bare assertion that he
inquired from his friends about his absent spouse's whereabouts was found
insufficient as the names of said friends were not identified in the testimony
nor presented as witnesses.
Finally, other than Nilda's bare testimony, no other corroborative evidence

had been offered to support her allegation that she exerted efforts to find him
but was unsuccessful. What appears from the facts as established in this
case was that Nilda simply allowed the passage of time without actively and
diligently searching for her husband, which the Court cannot accept as
constituting a "well-founded belief that her husband is dead. Whether or not
the spouse present acted on a well-founded belief of death of the absent
spouse depends upon the inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of the absent
spouse and the nature and extent of the inquiries made by the present
spouse.
In fine, having fallen short of the stringent standard and degree of due
diligence required by jurisprudence to support her claim of a "well-founded
belief that her husband Dante is already dead, the instant petition must be
granted.
WHEREFORE, the petition is GRANTED. Accordingly, the Decision dated

June 17, 2013 and the Resolution dated September 2, 2014 rendered by the
Court of Appeals in CA-G.R. SP No. 04588 are hereby REVERSED and SET
ASIDE. The petition of respondent Nilda B. Tampus to have her husband,
Dante L. Del Mundo, declared presumptively dead is DENIED.
SO ORDERED.

[2] G.R. No. 187512 June 13, 2012 DECISION
REPUBLIC OF THE PHILIPPINES, Petitioner, vs. YOLANDA CADACIO SERENO, J.:

GRANADA, Respondent.
This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23
Civil Law; Family Code; Declaration of Presumptive Death; Articles 41, 238, January 20091 and 3 April 20092 issued by the Court of Appeals (CA), which
247 and 253 of the Family Code provide that since a petition for declaration of affirmed the grant by the Regional Trial Court (RTC) of the Petition for
presumptive death is a summary proceeding, the judgment of the court therein shall Declaration of Presumptive Death of the absent spouse of respondent.
be immediately final and executory.—Taken together, Articles 41, 238, 247 and 253
of the Family Code provide that since a petition for declaration of presumptive death In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus
is a summary proceeding, the judgment of the court therein shall be immediately Granada (Cyrus) at Sumida Electric Philippines, an electronics company in
final and executory. Paranaque where both were then working. The two eventually got married at
Civil Procedure; Appeals; Under Article 41 of the Family Code, the losing the Manila City Hall on 3 March 1993. Their marriage resulted in the birth of
party in a summary proceeding for the declaration of presumptive death may file a their son, Cyborg Dean Cadacio Granada.
petition for certiorari with the Court of Appeals on the ground that, in rendering
judgment thereon, the trial court committed grave abuse of discretion amounting to Sometime in May 1994, when Sumida Electric Philippines closed down,
lack of jurisdiction.—In sum, under Article 41 of the Family Code, the losing party Cyrus went to Taiwan to seek employment. Yolanda claimed that from that
in a summary proceeding for the declaration of presumptive death may file a petition time, she had not received any communication from her husband,
for certiorari with the CA on the ground that, in rendering judgment thereon, the trial notwithstanding efforts to locate him. Her brother testified that he had asked
court committed grave abuse of discretion amounting to lack of jurisdiction. From the relatives of Cyrus regarding the latter’s whereabouts, to no avail.
the decision of the CA, the aggrieved party may elevate the matter to this Court via a
petition for review on certiorari under Rule 45 of the Rules of Court. Evidently then,
the CA did not commit any error in dismissing the Republic’s Notice of Appeal on After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus
the ground that the RTC judgment on the Petition for Declaration of Presumptive declared presumptively dead. The Petition was raffled to Presiding Judge
Death of respondent’s spouse was immediately final and executory and, hence, not Avelino Demetria of RTC Branch 85, Lipa City, and was docketed as Sp.
Proc. No. 2002-0530.
subject to ordinary appeal.
Civil Law; Family Code; Declaration of Presumptive Death; Requisites for the
declaration of presumptive death under the Family Code.—The four requisites for On 7 February 2005, the RTC rendered a Decision declaring Cyrus as
the declaration of presumptive death under the Family Code are as follows: 1. That presumptively dead.
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 On 10 March 2005, petitioner Republic of the Philippines, represented by the
circumstances laid down in Article 391, Civil Code; 2. That the present spouse Office of the Solicitor General (OSG), filed a Motion for Reconsideration of
wishes to remarry; 3. That the present spouse has a well-founded belief that the this Decision. Petitioner argued that Yolanda had failed to exert earnest
absentee is dead; and 4. That the present spouse files a summary proceeding for the efforts to locate Cyrus and thus failed to prove her well-founded belief that he
declaration of presumptive death of the absentee. was already dead. However, in an Order dated 29 June 2007, the RTC
Civil Procedure; Immutability of Final Judgments; Nothing is more settled in denied the motion.
law than that when a judgment becomes final and executory, it becomes immutable
and unalterable.—The RTC ruling on the issue of whether respondent was able to Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably
prove her “well-founded belief” that her absent spouse was already dead prior to her under Rule 41, Section 2(a) of the Rules of Court. Yolanda filed a Motion to
filing of the Petition to declare him presumptively dead is already final and can no Dismiss on the ground that the CA had no jurisdiction over the appeal. She
longer be modified or reversed. Indeed, “[n]othing is more settled in law than that argued that her Petition for Declaration of Presumptive Death, based on
when a judgment becomes final and executory, it becomes immutable and Article 41 of the Family Code, was a summary judicial proceeding, in which
unalterable. The same may no longer be modified in any respect, even if the the judgment is immediately final and executory and, thus, not appealable.
modification is meant to correct what is perceived to be an erroneous conclusion of
fact or law.”

In its 23 January 2009 Resolution, the appellate court granted Yolanda’s Article 41 of the Family Code provides:
Motion to Dismiss on the ground of lack of jurisdiction. Citing Republic v.
Bermudez-Lorino,3 the CA ruled that a petition for declaration of presumptive Art. 41. A marriage contracted by any person during the subsistence of a
death under Rule 41 of the Family Code is a summary proceeding. Thus, previous marriage shall be null and void, unless before the celebration of the
judgment thereon is immediately final and executory upon notice to the subsequent marriage, the prior spouse had been absent for four consecutive
parties. 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
Petitioner moved for reconsideration, but its motion was likewise denied by death under the circumstances set forth in the provisions of Article 391 of the
the CA in a Resolution dated 3 April 2009.4 Civil Code, an absence of only two years shall be sufficient.
Hence, the present Rule 45 Petition. For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as
Issues provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent
spouse. (Underscoring supplied.)
1. Whether the CA seriously erred in dismissing the Petition on the
ground that the Decision of the RTC in a summary proceeding for the
declaration of presumptive death is immediately final and executory Clearly, a petition for declaration of presumptive death of an absent spouse
upon notice to the parties and, hence, is not subject to ordinary for the purpose of contracting a subsequent marriage under Article 41 of the
appeal Family Code is a summary proceeding "as provided for" under the Family
Code.
2. Whether the CA seriously erred in affirming the RTC’s grant of the
Petition for Declaration of Presumptive Death under Article 41 of the Further, Title XI of the Family Code is entitled "Summary Judicial
Family Code based on the evidence that respondent presented Proceedings in the Family Law." Subsumed thereunder are Articles 238 and
247, which provide:
Our Ruling
Art. 238. Until modified by the Supreme Court, the procedural rules in this
Title shall apply in all cases provided for in this Code requiring summary
1. On whether the CA seriously erred in dismissing the Petition on the ground
court proceedings. Such cases shall be decided in an expeditious manner
that the Decision of the RTC in a summary proceeding for the declaration of
without regard to technical rules.
presumptive death is immediately final and executory upon notice to the
parties and, hence, is not subject to ordinary appeal
Art. 247. The judgment of the court shall be immediately final and executory.
In the assailed Resolution dated 23 January 2009, the CA dismissed the
Petition assailing the RTC’s grant of the Petition for Declaration of Further, Article 253 of the Family Code reads:
Presumptive Death of the absent spouse under Article 41 of the Family
Code. Citing Republic v. Bermudez-Lorino, 5 the appellate court noted that a ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise
petition for declaration of presumptive death for the purpose of remarriage is govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and
a summary judicial proceeding under the Family Code. Hence, the RTC 217, insofar as they are applicable.
Decision therein is immediately final and executory upon notice to the parties,
by express provision of Article 247 of the same Code. The decision is Taken together, Articles 41, 238, 247 and 253 of the Family Code provide
therefore not subject to ordinary appeal, and the attempt to question it that since a petition for declaration of presumptive death is a summary
through a Notice of Appeal is unavailing. proceeding, the judgment of the court therein shall be immediately final and
executory.
We affirm the CA ruling.

In Republic v. Bermudez-Lorino,6 the Republic likewise appealed the CA’s We do not agree with the Republic’s argument that Republic v. Jomoc
affirmation of the RTC’s grant of respondent’s Petition for Declaration of superseded our ruling in Republic v. Bermudez-Lorino. As observed by the
Presumptive Death of her absent spouse. The Court therein held that it was CA, the Supreme Court in Jomoc did not expound on the characteristics of a
an error for the Republic to file a Notice of Appeal when the latter elevated summary proceeding under the Family Code. In contrast, the Court in
the matter to the CA, to wit: Bermudez-Lorino expressly stated that its ruling on the impropriety of an
ordinary appeal as a vehicle for questioning the trial court’s Decision in a
In Summary Judicial Proceedings under the Family Code, there is no summary proceeding for declaration of presumptive death under Article 41 of
reglementary period within which to perfect an appeal, precisely because the Family Code was intended "to set the records straight and for the future
judgments rendered thereunder, by express provision of Section 247, Family guidance of the bench and the bar."
Code, supra, are "immediately final and executory."
At any rate, four years after Jomoc, this Court settled the rule regarding
But, if only to set the records straight and for the future guidance of the bench appeal of judgments rendered in summary proceedings under the Family
and the bar, let it be stated that the RTC’s decision dated November 7, 2001, Code when it ruled in Republic v. Tango:9
was immediately final and executory upon notice to the parties. It was
erroneous for the OSG to file a notice of appeal, and for the RTC to give due This case presents an opportunity for us to settle the rule on appeal of
course thereto. The Court of Appeals acquired no jurisdiction over the case, judgments rendered in summary proceedings under the Family Code and
and should have dismissed the appeal outright on that ground. accordingly, refine our previous decisions thereon.
Justice (later Chief Justice) Artemio Panganiban, who concurred in the result Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
reached by the Court in Republic v. Bermudez-Lorino, additionally opined PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern
that what the OSG should have filed was a petition for certiorari under Rule summary court proceedings in the Family Code:
65, not a petition for review under Rule 45.
ART. 238. Until modified by the Supreme Court, the procedural rules in this
In the present case, the Republic argues that Bermudez-Lorino has been Title shall apply in all cases provided for in this Code requiring summary
superseded by the subsequent Decision of the Court in Republic v. Jomoc, 7 court proceedings. Such cases shall be decided in an expeditious manner
issued a few months later. without regard to technical rules.
In Jomoc, the RTC granted respondent’s Petition for Declaration of In turn, Article 253 of the Family Code specifies the cases covered by the
Presumptive Death of her absent husband for the purpose of remarriage. rules in chapters two and three of the same title. It states:
Petitioner Republic appealed the RTC Decision by filing a Notice of Appeal.
The trial court disapproved the Notice of Appeal on the ground that, under ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise
the Rules of Court,8 a record on appeal is required to be filed when appealing govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and
special proceedings cases. The CA affirmed the RTC ruling. In reversing the 217, insofar as they are applicable. (Emphasis supplied.)
CA, this Court clarified that while an action for declaration of death or
absence under Rule 72, Section 1(m), expressly falls under the category of In plain text, Article 247 in Chapter 2 of the same title reads:
special proceedings, a petition for declaration of presumptive death under
Article 41 of the Family Code is a summary proceeding, as provided for by
Article 238 of the same Code. Since its purpose was to enable her to contract ART 247. The judgment of the court shall be immediately final and executory.
a subsequent valid marriage, petitioner’s action was a summary proceeding
based on Article 41 of the Family Code, rather than a special proceeding By express provision of law, the judgment of the court in a summary
under Rule 72 of the Rules of Court. Considering that this action was not a proceeding shall be immediately final and executory. As a matter of course, it
special proceeding, petitioner was not required to file a record on appeal follows that no appeal can be had of the trial court's judgment in a summary
when it appealed the RTC Decision to the CA. proceeding for the declaration of presumptive death of an absent spouse
under Article 41 of the Family Code. It goes without saying, however, that an
aggrieved party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such petition should be filed in

the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. the absentee is still alive; or that the absentee is generally considered to be
To be sure, even if the Court's original jurisdiction to issue a writ of certiorari dead and is believed to be so by the spouse present, or is presumed dead
is concurrent with the RTCs and the Court of Appeals in certain cases, such under Articles 390 and 391 of the Civil Code. In comparison, the Family Code
concurrence does not sanction an unrestricted freedom of choice of court provision prescribes a "well-founded belief" that the absentee is already dead
forum. From the decision of the Court of Appeals, the losing party may then before a petition for declaration of presumptive death can be granted. As
file a petition for review on certiorari under Rule 45 of the Rules of Court with noted by the Court in that case, the four requisites for the declaration of
the Supreme Court. This is because the errors which the court may commit in presumptive death under the Family Code are as follows:
the exercise of jurisdiction are merely errors of judgment which are the
proper subject of an appeal. 1. That the absent spouse has been missing for four consecutive
years, or two consecutive years if the disappearance occurred where
In sum, under Article 41 of the Family Code, the losing party in a summary there is danger of death under the circumstances laid down in Article
proceeding for the declaration of presumptive death may file a petition for 391, Civil Code;
certiorari with the CA on the ground that, in rendering judgment thereon, the
trial court committed grave abuse of discretion amounting to lack of 2. That the present spouse wishes to remarry;
jurisdiction. From the decision of the CA, the aggrieved party may elevate the
matter to this Court via a petition for review on certiorari under Rule 45 of the 3. That the present spouse has a well-founded belief that the
Rules of Court. absentee is dead; and
Evidently then, the CA did not commit any error in dismissing the Republic’s 4. That the present spouse files a summary proceeding for the
Notice of Appeal on the ground that the RTC judgment on the Petition for declaration of presumptive death of the absentee.
Declaration of Presumptive Death of respondent’s spouse was immediately
final and executory and, hence, not subject to ordinary appeal.
In evaluating whether the present spouse has been able to prove the
existence of a "well-founded belief" that the absent spouse is already dead,
2. On whether the CA seriously erred in affirming the RTC’s grant of the the Court in Nolasco cited United States v. Biasbas, 14 which it found to be
Petition for Declaration of Presumptive Death under Article 41 of the Family instructive as to the diligence required in searching for a missing spouse.
Code based on the evidence that respondent had presented
In Biasbas, the Court held that defendant Biasbas failed to exercise due
Petitioner also assails the RTC’s grant of the Petition for Declaration of diligence in ascertaining the whereabouts of his first wife, considering his
Presumptive Death of the absent spouse of respondent on the ground that admission that that he only had a suspicion that she was dead, and that the
she had not adduced the evidence required to establish a well-founded belief only basis of that suspicion was the fact of her absence.
that her absent spouse was already dead, as expressly required by Article 41
of the Family Code. Petitioner cites Republic v. Nolasco, 10 United States v.
Biasbas11 and Republic v. Court of Appeals and Alegro 12 as authorities on the Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic
subject. sought the reversal of the CA ruling affirming the RTC’s grant of the Petition
for Declaration of Presumptive Death of the absent spouse on the ground
that the respondent therein had not been able to prove a "well-founded
In Nolasco, petitioner Republic sought the reversal of the CA’s affirmation of belief" that his spouse was already dead. The Court reversed the CA,
the RTC’s grant of respondent’s Petition for Declaration of Presumptive granted the Petition, and provided the following criteria for determining the
Death of his absent spouse, a British subject who left their home in the existence of a "well-founded belief" under Article 41 of the Family Code:
Philippines soon after giving birth to their son while respondent was on board
a vessel working as a seafarer. Petitioner Republic sought the reversal of the
ruling on the ground that respondent was not able to establish his "well- For the purpose of contracting the subsequent marriage under the preceding
founded belief that the absentee is already dead," as required by Article 41 of paragraph, the spouse present must institute a summary proceeding as
the Family Code. In ruling thereon, this Court recognized that this provision provided in this Code for the declaration of presumptive death of the
imposes more stringent requirements than does Article 83 of the Civil Code. 13 absentee, without prejudice to the effect of reappearance of the absent
The Civil Code provision merely requires either that there be no news that spouse.

The spouse present is, thus, burdened to prove that his spouse has been law than that when a judgment becomes final and executory, it becomes
absent and that he has a well-founded belief that the absent spouse is immutable and unalterable. The same may no longer be modified in any
already dead before the present spouse may contract a subsequent respect, even if the modification is meant to correct what is perceived to be
marriage. The law does not define what is meant by a well-grounded belief. an erroneous conclusion of fact or law."15
Cuello Callon writes that "es menester que su creencia sea firme se funde en
motivos racionales." WHEREFORE, premises considered, the assailed Resolutions of the Court
of Appeals dated 23 January 2009 and 3 April 2009 in CA-G.R. CV No.
Belief is a state of the mind or condition prompting the doing of an overt 90165 are AFFIRMED.
act.1âwphi1 It may be proved by direct evidence or circumstantial evidence
which may tend, even in a slight degree, to elucidate the inquiry or assist to a SO ORDERED.
determination probably founded in truth. Any fact or circumstance relating to
the character, habits, conditions, attachments, prosperity and objects of life
which usually control the conduct of men, and are the motives of their
actions, was, so far as it tends to explain or characterize their disappearance
or throw light on their intentions, competence [sic] evidence on the ultimate
question of his death.
The belief of the present spouse must be the result of proper and honest to
goodness inquiries and efforts to ascertain the whereabouts of the absent
spouse and whether the absent spouse is still alive or is already dead.
Whether or not the spouse present acted on a well-founded belief of death of
the absent spouse depends upon the inquiries to be drawn from a great
many circumstances occurring before and after the disappearance of the
absent spouse and the nature and extent of the inquiries made by present
spouse. (Footnotes omitted, underscoring supplied.)
Applying the foregoing standards to the present case, petitioner points out
that respondent Yolanda did not initiate a diligent search to locate her absent
husband. While her brother Diosdado Cadacio testified to having inquired
about the whereabouts of Cyrus from the latter’s relatives, these relatives
were not presented to corroborate Diosdado’s testimony. In short,
respondent was allegedly not diligent in her search for her husband.
Petitioner argues that if she were, she would have sought information from
the Taiwanese Consular Office or assistance from other government
agencies in Taiwan or the Philippines. She could have also utilized mass
media for this end, but she did not. Worse, she failed to explain these
omissions.
The Republic’s arguments are well-taken. Nevertheless, we are constrained

to deny the Petition.
The RTC ruling on the issue of whether respondent was able to prove her
"well-founded belief" that her absent spouse was already dead prior to her
filing of the Petition to declare him presumptively dead is already final and
can no longer be modified or reversed. Indeed, "[n]othing is more settled in

[3] G.R. No. 230751 Same; Same; Same; Same; Since the petition filed by the petitioner merely
seeks the declaration of presumptive death of Wilfredo under the Civil Code, the
ESTRELLITA TADEO-MATIAS, Petitioner vs. REPUBLIC OF THE Regional Trial Court (RTC) should have dismissed such petition outright. This is
PHILIPPINES, Respondent because, in our jurisdiction, a petition whose sole objective is to have a person
declared presumptively dead under the Civil Code is not regarded as a valid suit and
Civil Law; Family Law; Persons and Family Relations; Declaration of no court has any authority to take cognizance of the same.—Since the petition filed
Presumptive Death; A reading of Article 41 of the Family Code shows that the by the petitioner merely seeks the declaration of presumptive death of Wilfredo
presumption of death established therein is only applicable for the purpose under the Civil Code, the RTC should have dismissed such petition outright. This is
of contracting a valid subsequent marriage under the said law.—It can be recalled because, in our jurisdiction, a petition whose sole objective is to have a person
that the RTC, in the fallo of its January 15, 2012 Decision, granted the petitioner’s declared presumptively dead under the Civil Code is not regarded as a valid suit and
petition by declaring Wilfredo presumptively dead “under Article 41 of the FC.” By no court has any authority to take cognizance of the same. The above norm had its
doing so, the RTC gave the impression that the petition for the declaration of conceptual roots in the 1948 case of In re: Petition for the Presumption of Death of
presumptive death filed by petitioner was likewise filed pursuant to Article 41 of the Nicolai Szatraw. In the said case, we held that a rule creating a presumption of death
FC. This is wrong. The petition for the declaration of presumptive death filed by is merely one of evidence that — while may be invoked in any action or proceeding
petitioner is not an action that would have warranted the application of Article 41 of — cannot be the lone subject of an independent action or proceeding. Szatraw
the FC because petitioner was not seeking to remarry. A reading of Article 41 of the explained: The rule invoked by the latter is merely one of evidence which permits the
FC shows that the presumption of death established therein is only applicable for the court to presume that a person is dead after the fact that such person had been
purpose of contracting a valid subsequent marriage under the said law. unheard from in seven years had been established. This presumption may arise and
Same; Same; Same; Same; Given that her petition for the declaration of be invoked and made in a case, either in an action or in a special proceeding, which
presumptive death was not filed for the purpose of remarriage, petitioner was is tried or heard by, and submitted for decision to, a competent court. Independently
clearly relying on the presumption of death under either Article 390 or Article 391 of of such an action or special proceeding, the presumption of death cannot be
the Civil Code as the basis of her petition. Articles 390 and 391 of the Civil Code invoked, nor can it be made the subject of an action or special proceeding. In
express the general rule regarding presumptions of death for any civil purpose.— this case, there is no right to be enforced nor is there a remedy prayed for by the
Petitioner was forthright that she was not seeking the declaration of the presumptive petitioner against her absent husband. Neither is there a prayer for the final
death of Wilfredo as a prerequisite for remarriage. In her petition for the declaration determination of his right or status or for the ascertainment of a particular fact, for
of presumptive death, petitioner categorically stated that the same was filed “not for the petition does not pray for a declaration that the petitioner’s husband is dead, but
any other purpose but solely to claim for the benefit under P.D. No. 1638 as merely asks for a declaration that he be presumed dead because he had been unheard
amended.” Given that her petition for the declaration of presumptive death from in seven years. If there is any pretense at securing a declaration that the
was not filed for the purpose of remarriage, petitioner was clearly relying on the petitioner’s husband is dead, such a pretension cannot be granted because it is
presumption of death under either Article 390 or Article 391 of the Civil unauthorized. The petition is for a declaration that the petitioner’s husband is
Code as the basis of her petition. Articles 390 and 391 of the Civil Code express presumptively dead. But this declaration, even if judicially made, would not
the general rule regarding presumptions of death for any civil purpose, to wit: Art. improve the petitioner’s situation, because such a presumption is already
390. After an absence of seven years, it being unknown whether or not the absentee established by law. A judicial pronouncement to that effect, even if final and
still lives, he shall be presumed dead for all purposes, except for those of succession. executory, would still be a prima facie presumption only. It is still disputable. It
The absentee shall not be presumed dead for the purpose of opening his succession is for that reason that it cannot be the subject of a judicial pronouncement or
till after an absence of ten years. If he disappeared after the age of seventy-five years, declaration, if it is the only question or matter involved in a case, or upon which
an absence of five years shall be sufficient in order that his succession may be a competent court has to pass. The latter must decide finally the controversy
opened. Art. 391. The following shall be presumed dead for all purposes, including between the parties, or determine finally the right or status of a party or establish
the division of the estate among the heirs: (1) A person on board a vessel lost during finally a particular fact, out of which certain rights and obligations arise or may arise;
a sea voyage, or an aeroplane which is missing, who has not been heard of for four and once such controversy is decided by a final judgment, or such right or status
years since the loss of the vessel or aeroplane; (2) A person in the armed forces who determined, or such particular fact established, by a final decree, then the judgment
has taken part in war, and has been missing for four years; (3) A person who has on the subject of the controversy, or the decree upon the right or status of a party or
been in danger of death under other circumstances and his existence has not been upon the existence of a particular fact, becomes res judicata, subject to no collateral
known for four years. attack, except in a few rare instances especially provided by law. It is, therefore,
clear that a judicial declaration that a person is presumptively dead, because he had

been unheard from in seven years, being a presumption juris tantum only, subject to such recourse still fail, the claimant may file an appeal by certiorari with the
contrary proof, cannot reach the stage of finality or become final. Supreme Court.
Same; Same; Same; Same; Under prevailing case law, courts are without any
authority to take cognizance of a petition that — like the one filed by the petitioner in DECISION
the case at bench — only seeks to have a person declared presumptively dead under
the Civil Code. Such a petition is not authorized by law.—Verily, under prevailing VELASCO, JR., J.:
case law, courts are without any authority to take cognizance of a petition that — like
the one filed by the petitioner in the case at bench — only seeks to have a person
declared presumptively dead under the Civil Code. Such a petition is not authorized This is an appeal1 assailing the Decision2 dated November 28, 2016 and
by law. Hence, by acting upon and eventually granting the petitioner’s petition for Resolution3 dated March 20, 2017 of the Court of Appeals (CA) in CA-G.R.
the declaration of presumptive death, the RTC violated prevailing jurisprudence and SP No. 129467.
thereby committed grave abuse of discretion. The CA, therefore, was only correct in
setting aside the RTC’s decision. The facts are as follows:
Death Benefits; Guidelines that Would Aid the Public, Philippine Veterans’
Affairs Office (PVAO) and the Armed Forces of the Philippines (AFP) in Making or On April 10, 2012, petitioner Estrellita Tadco-Matias filed before the Regional
Dealing with Claims of Death Benefits.—The Court deems it necessary to issue the Trail Court (RTC) of Tarlac City a petition for the declaration of presumptive
following guidelines — culled from relevant law and jurisprudential pronouncements death of her husband, Wifredo N. Matias (Wilfredo). 4 The allegations of the
— to aid the public, PVAO and the AFP in making or dealing with claims of death petition read:
benefits which are similar to that of the petitioner: 1. The PVAO and the AFP can
decide claims of death benefits of a missing soldier without requiring the 1. [Petitioner] is of legal age, married to [Wilfredo], Filipino and curr[e]ntly a
claimant to first produce a court declaration of the presumptive death of such residnet of 106 Molave street, Zone B. San Miguel Tarlac City;
soldier. In such claims, the PVAO and the AFP can make their own determination,
on the basis of evidence presented by the claimant, whether the presumption of death 2. [Wifredo] is of legal age, a member of the Philippine Constabulary and was
under Articles 390 and 391 of the Civil Code may be applied or not. It must be assigned in Araya, Pampanga since August 24, 1967[;]
stressed that the presumption of death under Articles 390 and 391 of the Civil Code
arises by operation of law, without need of a court declaration, once the factual
conditions mentioned in the said articles are established. Hence, requiring the 3. The[p]etitioner and [Wilfredo] entered into a lawful marriage on January 7,
claimant to further secure a court declaration in order to establish the presumptive 1968 in Imbo, Anda, Pangasinan x x x;
death of a missing soldier is not proper and contravenes established jurisprudence on
the matter. 2. In order to avail of the presumption, therefore, the claimant need only 4. After the solemnization of their marriage vows, the couple put up their
present before the PVAO or the appropriate office of the AFP, as the case may be, conjugal home at 106 Molave street, Zone B. San Miguel, Tarlac City;
any “evidence” which shows that the concerned soldier had been missing for such
number of years and/or under the circumstances prescribed under Articles 390 and 5. [Wilfredo] continued to serve the Philippines and on September 15, 1979,
391 of the Civil Code. Obviously, the “evidence” referred to here excludes a court he set out from their conjugal home to again serve as a member of the
declaration of presumptive death. 3. The PVAO or the AFP, as the case may be, may Philippine Constabulary;
then weigh the evidence submitted by the claimant and determine their sufficiency to
establish the requisite factual conditions specified under Article 390 or 391 of the 6. [Wilfredo] never came back from his tour of duty in Arayat, Pampanga
Civil Code in order for the presumption of death to arise. If the PVAO or the AFP since 1979 and he never made contact or communicated with the [p]etitioner
determines that the evidence submitted by the claimant is sufficient, they should nor to his relatives;
not hesitate to apply the presumption of death and pay the latter’s claim. 4. If
the PVAO or the AFP determines that the evidence submitted by the claimant is not
7. That according to the service record of [Wilfredo] issued by the National
sufficient to invoke the presumption of death under the Civil Code and denies the
Police Commission, [Wilfredo] was already declared missing since 1979 x x
latter’s claim by reason thereof, the claimant may file an appeal with the Office of x;
the President (OP) pursuant to the principle of exhaustion of administrative remedies.
If the OP denies the appeal, the claimant may next seek recourse via a petition for
review with the CA under Rule 43 of the Rules of the Court. And finally, should 8. Petitioner constantly pestered the then Philippine Constabulary for any
news regarding [her] beloved husband [Wilfredo], but the Philippine

Constabulary had no answer to his whereabouts, [neither] did they have any 1. The RTC erred when it declared Wilfredo presumptively dead on the basis
news of him going AWOL, all they know was he was assigned to a place of Article 41 of the Family Code (FC). Article 41 of the FC does not seek to
frequented by the New People's Army; remarry. If anything, the petition was invoking the presumption of death
established under Articles 390 and 391 of the Civil Code, and not that
9. [W]eeks became years and years became decades, but the [p]etitioner provided for under Article 41 of the FC.
never gave up hope, and after more than three (3) decades of awaiting, the
[p]etitioner is still hopeful, but the times had been tough on her, specially with 2. Be that it may, the petition to declare Wilfredo presumptively dead should
a meager source of income coupled with her age, it is now necessary for her have been dismissed by the RTC. The RTC is without authority to take
to request for the benefits that rightfully belong to her in order to survive; cognizance of a petition whose sole purpose is to have a person declared
presumptively dead under either Article 390 or Article 391 of the Civil Code.
10. [T]hat one of the requirements to attain the claim of benefits is for a proof As been held by jurisprudence, Articles 390 and 391 of the Civil Code merely
of death or at least declaration of presumptive death by the Honorable Court; express rules of evidence that allow a court or a tribunal to presume that a
person is dead-which presumption may be invoked in any action or
proceeding, but itself cannot be the subject of an independent action or
11. That this petition is being filed not for any other purpose but solely to
proceeding.
claim for the benefit under P.D. No. 1638 as amended.
Petitioner moved for reconsideration, but the CA remained steadfast.

The petition was docketed as Spec. Proc. No. 4850 and was raffled to
Hence,this appeal.
Branch 65 of the Tarlac City RTC. A copy of the petition was then furnished
to the Office of the Solicitor General (OSG)_.
Our Ruling
Subsequently, the OSG filed its notice of appearance on behalf of herein
respondent Republic of the Philippines (Republic). 5 We deny the appeal
On January 15, 2012, the RTC issued a Decision 6 in Spec. Proc. No. 4850 I
granting the petition. The dispositive portion of the Decision reads: 7
The CA was correct. The petition for the declaration of presumptive death
WHEREFORE in view of the foregoing the Court hereby declared (sic) filed by the petitioner is not an authorized suit and should have been
WILFREDO N. MATIAS absent or presumptively dead under Article 41 of dismissed by the RTC. The RTC's decision must, therefore, be set aside.
the Family Code of the Philippines for purpose of claiming financial
benefits due to him as former military officer. SO ORDERED. RTC Erred I Declaring the Presumptive Death of Wilfredo under
Article 41 of the FC; Petitioner's Petition for the Declaration of
The Republic questioned the decision of the RTC via a petition for certiotrari.8 Presumptive Death is Not Based on Article 41 of the FC, but on the Civil
Code
On November 28, 2012, the CA rendered a decision granting the certiorari
petition of the Republic and setting aside the decision of the RTC. It A conspicuous error in the decision of the RTC must first be addressed.
accordingly disposed:
It can be recalled that the RTC, in fallo of its January 15, 2012 Decision,
WHEREFORE, premises considered, the petition for certiorari is GRANTED. granted the petitioner's petition by declaring Wilfredo presumptively dead
The Decision dated January 15, 2012 of the Regional Trial Court, branch 65, "under Article 41 of the FC." By doing so, RTC gave the impression that the
Tarlac City, in Special Proceeding no. 4850 is ANNULED and SET ASIDE, petition for the declaration of presumptive death filed by petitioner was
and the petition is DISMISSED. likewise filed pursuant to Article 41 of the FC. 9 This is wrong.
The CA premised its decision on the following ratiocinations: The petition for the declaration of presumptive death filed by petitioner is not
an action that would have warranted the application of Article 41 of the FC

shows that the presumption of death established therein is only applicable for (2) A person in the armed forces who has taken part in war, and has been
the purpose of contracting a valid subsequent marriage under the said law. missing for four years;
Thus:
(3) a person who has been in danger of death under other circumstances and
Art. 41. A marriage contracted by any person during subsistence of a his existence has not been known for four years.
previous marriage shall be null and void, unless before the celebration of the
subsequent marriage, the prior spouse had been absent for four consecutive Verily, the RTC's use of Article 41 of the FC as its basis in declaring the
years and the spouse present has a well-founded belief that the absent presumptive death of Wilfredo was misleading and grossly improper.The
spouse was already dead. In case of disappearance where there is danger of petition for the declaration of presumptive death filed by the petitioner
death under the circumstances set forth in the provisions of Article 391 of the was based on the Civil Code, and not on Article 41 of the FC.
Civil Code, an absence of only two years shall be sufficient.
Petitioner's Petition for Declaration of Presumptive Death Ought to
For the purpose of contracting the subsequent marriage under the preceding Have Been Dismissed; A Petition Whose Sole Objective is To Declare a
paragraph the spouse present must institute a summary proceeding as Person Presumptively Dead Under the CivilCode, Like that Filed by the
provided in this Code for the declaration of presumptive death of the Petitioner Before the RTC, Is Not a Viable Suit in Our Jurisdiction
absentee, without prejudice to the effect of reappearance of the absent
spouse. The true fault in the RTC's decision, however, goes beyond its misleading
fallo. The decision itself is objectionable.
Here, petitioner was forthright that she was not seeking the declaration of the
presumptive death Wilfredo as a prerequisite for remarriage. In her petition Since the petition filed by the petitioner merely seeks the declaration of
for the declaration of presumptive death, petitioner categorically stated that presumptive death of Wilfredo under the Civil Code, the RTC should have
the same was filed "not for any other purpose but solely to claim for the dismissed such petition outright. This is because, in our jurisdiction, a petition
benefit under P.D. No. 1638 a amended.10 whose sole objective is to have a person declared presumptively dead under
the Civil Code is not regarded as a valid suit and no court has any authority
Given that her petition for the declaration of presumptive death was not filed to take cognizance of the same.
for the purpose of remarriage, petitioner was clearly relying on the
presumption of death under either Article 390 or Article 391 of the Civil The above norm had its conceptual roots in the 1948 case of In re: Petition
Code11 as the basis of her petition. Articles 390 and 391 of the Civil Code for the Presumption of Death of Nicolai Szatraw. 12 In the said case, we held
express the general rule regarding presumption s of death for any civil that a rule creating a presumption of death 13 is merely one of the evidence
purpose, to wit: that-while may be invoked in any action or proceeding-cannot be the lone
subject of an independent action or proceeding. Szatraw explained:
Art. 390. After an absence of seven years, it being unknown whether or not
the absence still lives, he shall be presumed dead for all purposes except for The rule invoked by the latter is merely one of the evidence which permits the
those of succession. court to presume that a person had been unheard from in seven years had
been established. This presumption may arise and be invoked and made in a
The absentee shall not be presumed dead for the purpose of opening his case, either in an action or in a special proceeding, which is tried or heard by,
succession till after an absence of five years shall be sufficient in order that and submitted for decision to, a competent court. Independently of such an
his succession may be opened. action or special proceeding, the presumption of death cannot be
invoked, nor can it be made the subject of an action or special
Art. 391. The following shall be presumed dead for all purposes, including proceeding. In this case, there is no right ti be enforced nor is there a
the division of the estate among the heirs: remedy prayed for by the petitioner against her absent husband. Neither
is there a prayer for the final determination of his right or status or for the
(1) A person on board a vessel lost during a sea voyage, or an aeroplane ascertainment of particular fact, for the petition does not pray for the
which is missing, who has not been heard of for four years since the loss of declaration that the petitioner 's husband us dead, but merely asks for a
the vessel or aeroplane; declaration that he be presumed dead because he had been unheard from in

seven years. If there is any pretense at securing a declaration that the 3. A judicial pronouncement declaring a person presumptively dead under
petitioner's husband os dead, such a pretension cannot be granted because Article 390 or Article 391 of the Civil Code, in an action exclusively based
it is unauthorized. The petition is for a declaration, even if judicially thereon, would never really become "final" as the same only confirms tha
made, would not improve the petitioner's situation, because such a existence of a prima facie or disputable presumption. The function of a court
presumption is already established by law. A judicial pronouncement to to render decisions that is supposed to be final and binding between litigants
that effect, even if final and executory, would be a prima facie is thereby compromised.
presumption only. It is still disputable. It is for that reason that it cannot
be the subject of judicial pronouncement or declaration, if it is tha only 4. Moreove, a court action to declare a person presumptively dead under
question or matter involved in a case, or upon which a competent court Articles 390 and 391 of the Civil Code would be unnecessary. The
has to pass. The latter must decide finally the controversy between the presumption in the said articles is already established by law.
parties, or determine finally the right or status of a party or establish finally a
particular fact, out of which certain rights and obligations arise or may arise; Verily, under prevailing case law, courts are without any authority to take
and once such controversy is decided by a final decree, then the judgement cognizance of a petition that-like the one filed by the petitioner in the case at
on the subject of the controversy, or the decree upon the right or status of a bench-only seeks to have a person declared presumptively dead under the
party or upon the existence of a particular fact, becomes res judicata, subject Civil Code. Such a petition is not authorized by law. 17 Hence, by acting upon
to no collateral attack, except in a few rare instances especially provided by and eventually granting the petitioner's petition for the declaration of
law. It is, therefore, clear that judicial declaration that a person is presumptive death, the RTC violated prevailing jurisprudence and thereby
presumptively dead, because he had been unheard from in seven years, committed grave abuse of discretion. The CA, therefore, was only correct in
being a presumption juris tantum only, subject to contrary proof, cannot reach setting aside the RTC's decision.
the stage of finality or become final. (Citations omitted and emphasis
supplied)
II
The above ruling in Szatraw has since been ussed by the subsequent cases
of Lukban v. Republic14 and Gue v. Republic15 in disallowing petitions for Before bringing this case to its logical conclusion, however, there are a few
declaration of presumptive death based on Article 390 of the Civil Code (and, points the Court is minded to make.
implicity, also those based on the Civil based on Article 391 of the Civil
Code). It is not lost on this Court that much of the present controversy stemmed from
the misconception that a court declaration is required in order to establish a
Dissecting the rulings of Szatraw, Gue and Lukban collectively, we are able person is presumptively dead for purposes of claiming his death benefits as a
to ascertain the considerations why a petition for declaration of presumptive military serviceman under pertinent laws.18 This misconception is what
death based on the Civil Code was disallowed in our jurisdiction, viz: 16 moved petitioner to file her misguided petition for the declaration of
presumptive death of Wilfredo and what ultimately exposed her to
unnecessary difficulties in prosecuting an otherwise simple claim for death
1. Articles 390 and 391 of the Civil Code merely express rules of evidence benefits either before the Philippine Veterans' Affair Office (PVAO) of the
that only allow a court or a tribunal to presume that a person is dead upon Armed Forces of the Philippines (AFP).
the establishment of certain facts.
What the Court finds deeply disconnecting, however, is the possibility that
2. Since Articles 390 an d 391 of the Civil Code merely express rules of such misconception may have been peddles by no less than the PVAO and
evidence, an action brought exclusively to declare a person the AFP themselves; that such agencies, as a matter of practice, had been
presumptively dead under either of the said articles actually presents requiring claimants, such as the petitioner, to first secure a court declaration
of presumptive death before processing the death before processing the
no actual controversy that a court could decide. In such action, there death benefits of missing serviceman.
would be no actual rights to be enforces, no wrong to be remedied nor any
status to be established. In view of the foregoing circumstances, the Court deems it necessary to
issue the following guidelines-culled from relevant law and jurisprudential

pronouncements-to aid the public, PVAO and the AFP in making or dealing While we are constrained by case law to deny the instant petition, the Court
with claims of death benefits which are similar to that of the petitioner: is hopeful that, by the foregoing guidelines, the unfortunate experience of the
petitioner would no longer be replicated in the future.
1. The PVAO and the AFP can decide claims of death benefits of a
missing soldier without requiring the claimant to first produce a court WHEREFORE, the instant appeal is DENIED. The Decision dated November
declaration of the presumptive death of such soldier. In such claims, the 28, 2016 and Resolution dated March 20, 2017 of the Court of Appeals in
PVAO and the AFP can make their own determination, on the basis of the CA-G.R. SP No. 129467 are AFFIRMED. The Court declares that a judicial
evidence presented by the claimant, whether the presumption of death under decision of a court of law that a person is presumptively dead is not
Articles 390 and 391 of the Civil Code may be applied or not. requirement before the Philippine Veterans' Affairs Office and the Armed
Forces of the Philippines for their consideration.
It must be stressed that the presumption of death under Articles 390 and 391
of the Civil Code arises by operation of law, without need of a court SO ORDERED.
declaration, once the factual conditions mentioned in the said articles are
established.19 Hence, requiring the claimant to further secure a court
declaration in order to establish the presumptive death of a missing soldier is
not proper and contravenes established jurisprudence on the matter. 20
2. In order to avail of the presumption, therefore, the claimant need only

present before the PVAO or the appropriate office of the AFP, as the case
may be, any "evidence"21 which shows that the concerned soldier had been
missing for such number of years and or under the circumstances prescribed
under Articles 390 and 391 of the Civil Code. Obviously, the "evidence"
referred to here excludes a court declaration of presumptive death.
3. The PVAO or the AFP, as the case may be, may then weigh the evidence
submitted by the claimant and determine their sufficiency to establish the
requisite factual conditions specified under Article 390 or 391 of the Civil
Code in order for the presumption of death to arise. If the PVAO or the AFP
determines that the evidence submitted by the claimant is sufficient,
they should not hesitate to apply the presumption of death and pay the
latter's claim.
4. If the PVAO or the AFP determines that the evidence submitted by the
claimant is not sufficient to invoke the presumption of death under the Civil
Code and denies the latter's claim by reason thereof, the claimant may file an
appeal with the Office of the President (OP) pursuant to the principle of
exhaustion of administrative remedies.
If the OP denies the appeal, the claimant may next seek recourse via a
petition for review with the CA under Rule 43 of the Rules of the
Court.1avvphi1 And finally, shold such recourse still fail, the claimant may file
an appeal by certiorari with the Supreme Court.

[4] G.R. No. 184621 December 10, 2013 spouse had been absent for four consecutive years and the present spouse had a
well-founded belief that the prior spouse was already dead.—Before a judicial
REPUBLIC OF THE PHILIPPINES, Petitioner, declaration of presumptive death can be obtained, it must be shown that the prior
vs. MARIA FE ESPINOSA CANTOR, Respondent. 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
Civil Law; Family Law; Declaration of Presumptive Death; The Family Code Family Code, there are four (4) essential requisites for the declaration of presumptive
was explicit that the court’s judgment in summary proceedings, such as the death: 1. That the absent spouse has been missing for four consecutive years, or two
declaration of presumptive death of an absent spouse under Article 41 of the Family consecutive years if the disappearance occurred where there is danger of death under
Code, shall be immediately final and executory.—The Family Code was explicit that the circumstances laid down in Article 391, Civil Code; 2. That the present spouse
the court’s judgment in summary proceedings, such as the declaration of presumptive wishes to remarry; 3. That the present spouse has a well-founded belief that the
death of an absent spouse under Article 41 of the Family Code, shall be immediately absentee is dead; and 4. That the present spouse files a summary proceeding for the
final and executory. Article 41, in relation to Article 247, of the Family Code declaration of presumptive death of the absentee.
provides: Art. 41. A marriage contracted by any person during subsistence of a Same; Same; Same; Article 41 of the Family Code places upon the present
previous marriage shall be null and void, unless before the celebration of the spouse the burden of proving the additional and more stringent requirement of
subsequent marriage, the prior spouse had been absent for four consecutive years and “well-founded belief” which can only be discharged upon a showing of proper and
the spouse present has a well-founded belief that the absent spouse was already dead. honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s
In case of disappearance where there is danger of death under the circumstances set whereabouts but, more importantly, that the absent spouse is still alive or is already
forth in the provisions of Article 391 of the Civil Code, an absence of only two years dead.—Article 41 of the Family Code, compared to the old provision of the Civil
shall be sufficient. For the purpose of contracting the subsequent marriage under the Code which it superseded, imposes a stricter standard. It requires a “well-founded
preceding paragraph the spouse present must institute a summary proceeding as belief” that the absentee is already dead before a petition for declaration of
provided in this Code for the declaration of presumptive death of the absentee, presumptive death can be granted. We have had occasion to make the same
without prejudice to the effect of reappearance of the absent spouse. Art. 247. The observation in Republic v. Nolasco, 220 SCRA 20 (1993), where we noted the
judgment of the court shall be immediately final and executory. [underscores ours] crucial differences between Article 41 of the Family Code and Article 83 of the Civil
With the judgment being final, it necessarily follows that it is no longer subject to an Code, to wit: Under Article 41, the time required for the presumption to arise has
appeal, the dispositions and conclusions therein having become immutable and been shortened to four (4) years; however, there is need for a judicial declaration of
unalterable not only as against the parties but even as against the courts. presumptive death to enable the spouse present to remarry. Also, Article 41 of the
Modification of the court’s ruling, no matter how erroneous is no longer permissible. Family Code imposes a stricter standard than the Civil Code: Article 83 of the
The final and executory nature of this summary proceeding thus prohibits the resort Civil Code merely requires either that there be no news that such absentee is still
to appeal. alive; or the absentee is generally considered to be dead and believed to be so by the
Remedial Law; Special Civil Actions; Certiorari; While jurisprudence tells us spouse present, or is presumed dead under Articles 390 and 391 of the Civil Code.
that no appeal can be made from the trial court’s judgment, an aggrieved party may, The Family Code, upon the other hand, prescribes as “well founded belief” that
nevertheless, file a petition for certiorari under Rule 65 of the Rules of Court to the absentee is already dead before a petition for declaration of presumptive
question any abuse of discretion amounting to lack or excess of jurisdiction that death can be granted. Thus, mere absence of the spouse (even for such period
transpired.—While jurisprudence tells us that no appeal can be made from the trial required by the law), lack of any news that such absentee is still alive, failure to
court’s judgment, an aggrieved party may, nevertheless, file a petition for certiorari communicate or general presumption of absence under the Civil Code would not
under Rule 65 of the Rules of Court to question any abuse of discretion amounting to suffice. This conclusion proceeds from the premise that Article 41 of the Family
lack or excess of jurisdiction that transpired. As held in De los Santos v. Rodriguez, Code places upon the present spouse the burden of proving the additional and more
et al., 22 SCRA 451, 455 (1968), the fact that a decision has become final does not stringent requirement of “well-founded belief” which can only be discharged upon a
automatically negate the original action of the CA to issue certiorari, prohibition and showing of proper and honest-to-goodness inquiries and efforts to ascertain not only
mandamus in connection with orders or processes issued by the trial court. the absent spouse’s whereabouts but, more importantly, that the absent spouse is still
Certiorari may be availed of where a court has acted without or in excess of alive or is already dead.
jurisdiction or with grave abuse of discretion, and where the ordinary remedy of Same; Same; Same; The law did not define what is meant by “well-founded
appeal is not available. belief;” Its determination, so to speak, remains on a case-to-case basis.—The law
Civil Law; Family Law; Declaration of Presumptive Death; Before a judicial did not define what is meant by “well-founded belief.” It depends upon the
declaration of presumptive death can be obtained, it must be shown that the prior 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 which might come into play if he/she would prematurely remarry sans the court’s
must prove that his/her belief was the result of diligent and reasonable efforts and declaration. Upon the issuance of the decision declaring his/her absent spouse
inquiries to locate the absent spouse and that based on these efforts and inquiries, presumptively dead, the present spouse’s good faith in contracting a second marriage
he/she believes that under the circumstances, the absent spouse is already dead. It is effectively established. The decision of the competent court constitutes sufficient
requires exertion of active effort (not a mere passive one). proof of his/her good faith and his/her criminal intent in case of remarriage is
Same; Same; Same; In view of the summary nature of proceedings under effectively negated. Thus, for purposes of remarriage, it is necessary to strictly
Article 41 of the Family Code for the declaration of presumptive death of one’s comply with the stringent standard and have the absent spouse judicially declared
spouse, the degree of due diligence set by this Honorable Court in locating the presumptively dead.
whereabouts of a missing spouse must be strictly complied with.—The Court, fully
aware of the possible collusion of spouses in nullifying their marriage, has DECISION
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 BRION, J.:
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.), we emphasized The petition for review on certiorari1 before us assails the decision 2 dated
that: In view of the summary nature of proceedings under Article 41 of the Family August 27, 2008 of the Court of Appeals (CA) in CA-G.R. SP No. 01558-MIN
Code for the declaration of presumptive death of one’s spouse, the degree of due which affirmed be order3 dated December 15, 2006 of the Regional Trial
diligence set by this Honorable Court in the above-mentioned cases in locating Court (RTC), Branch 25, Koronadal City, South Cotabato, in SP Proc. Case
the whereabouts of a missing spouse must be strictly complied with. There have No. 313-25, declaring Jerry F. Cantor, respondent Maria Fe Espinosa
been times when Article 41 of the Family Code had been resorted to by parties Cantor’s husband, presumptively dead under Article 41 of the Family Code.
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 The Factual Antecedents
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. The respondent and Jerry were married on September 20, 1997. They lived
Same; Same; Same; Since marriage serves as the family’s foundation and together as husband and wife in their conjugal dwelling in Agan Homes,
since it is the state’s policy to protect and strengthen the family as a basic social Koronadal City, South Cotabato. Sometime in January 1998, the couple had
institution, marriage should not be permitted to be dissolved at the whim of the a violent quarrel brought about by: (1) the respondent’s inability to reach
parties.—The application of this stricter standard becomes even more imperative if "sexual climax" whenever she and Jerry would have intimate moments; and
we consider the State’s policy to protect and strengthen the institution of marriage. (2) Jerry’s expression of animosity toward the respondent’s father.
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, marriage should not be After their quarrel, Jerry left their conjugal dwelling and this was the last time
permitted to be dissolved at the whim of the parties. In interpreting and applying that the respondent ever saw him. Since then, she had not seen,
Article 41, this is the underlying rationale — to uphold the sanctity of marriage. communicated nor heard anything from Jerry or about his whereabouts.
Arroyo, Jr. v. Court of Appeals, 203 SCRA 750 (1991), reflected this sentiment when
we stressed: [The] protection of the basic social institutions of marriage and the On May 21, 2002, or more than four (4) years from the time of Jerry’s
family in the preservation of which the State has the strongest interest; the public disappearance, the respondent filed before the RTC a petition4for her
policy here involved is of the most fundamental kind. In Article II, Section 12 of the husband’s declaration of presumptive death, docketed as SP Proc. Case No.
Constitution there is set forth the following basic state policy: The State recognizes 313-25. She claimed that she had a well-founded belief that Jerry was
the sanctity of family life and shall protect and strengthen the family as a basic already dead. She alleged that she had inquired from her mother-in-law, her
autonomous social institution. brothers-in-law, her sisters-in-law, as well as her neighbors and friends, but
Same; Same; Same; For purposes of remarriage, it is necessary to strictly to no avail. In the hopes of finding Jerry, she also allegedly made it a point to
comply with the stringent standard and have the absent spouse judicially declared check the patients’ directory whenever she went to a hospital. All these
presumptively dead.—The requisite judicial declaration of presumptive death of the earnest efforts, the respondent claimed, proved futile, prompting her to file
absent spouse (and consequently, the application of a stringent standard for its the petition in court.
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
The Ruling of the RTC

After due proceedings, the RTC issued an order granting the respondent’s (1) Whether certiorarilies to challenge the decisions, judgments or
petition and declaring Jerry presumptively dead. It concluded that the final orders of trial courts in petitions for declaration of presumptive
respondent had a well-founded belief that her husband was already dead death of an absent spouse under Article 41 of the Family Code; and
since more than four (4) years had passed without the former receiving any
news about the latter or his whereabouts. The dispositive portion of the order (2) Whether the respondent had a well-founded belief that Jerry is
dated December 15, 2006 reads: already dead.
WHEREFORE, the Court hereby declares, as it hereby declared that The Court’s Ruling
respondent Jerry F. Cantor is presumptively dead pursuant to Article 41 of
the Family Code of the Philippines without prejudice to the effect of the We grant the petition.
reappearance of the absent spouse Jerry F. Cantor. 5
a. On the Issue of the Propriety of Certiorari as a Remedy
The Ruling of the CA
Court’s Judgment in the Judicial Proceedings for Declaration of
The case reached the CA through a petition for certiorari6filed by the Presumptive Death Is Final and Executory, Hence, Unappealable
petitioner, Republic of the Philippines, through the Office of the Solicitor
General (OSG). In its August 27, 2008 decision, the CA dismissed the
petitioner’s petition, finding no grave abuse of discretion on the RTC’s part, The Family Code was explicit that the court’s judgment in summary
and, accordingly, fully affirmed the latter’s order, thus: proceedings, such as the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code, shall be immediately final and
executory.
WHEREFORE, premises foregoing (sic), the instant petition is hereby
DISMISSED and the assailed Order dated December 15, 2006 declaring
Jerry F. Cantor presumptively dead is hereby AFFIRMED in toto. 7 Article 41,in relation to Article 247, of the Family Code provides:
The petitioner brought the matter via a Rule 45 petition before this Court. The Art. 41. A marriage contracted by any person during subsistence of a
Petition The petitioner contends that certiorari lies to challenge the decisions, previous marriage shall be null and void, unless before the celebration of the
judgments or final orders of trial courts in petitions for declaration of subsequent marriage, the prior spouse had been absent for four consecutive
presumptive death of an absent spouse under Rule 41 of the Family Code. It years and the spouse present has a well-founded belief that the absent
maintains that although judgments of trial courts in summary judicial spouse was already dead. In case of disappearance where there is danger of
proceedings, including presumptive death cases, are deemed immediately death under the circumstances set forth in the provisions of Article 391 of the
final and executory (hence, not appeal able under Article 247 of the Family Civil Code, an absence of only two years shall be sufficient.
Code), this rule does not mean that they are not subject to review on
certiorari. For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as
The petitioner also posits that the respondent did not have a well-founded provided in this Code for the declaration of presumptive death of the
belief to justify the declaration of her husband’s presumptive death. It claims absentee, without prejudice to the effect of reappearance of the absent
that the respondent failed to conduct the requisite diligent search for her spouse.
missing husband. Likewise, the petitioner invites this Court’s attention to the
attendant circumstances surrounding the case, particularly, the degree of Art. 247. The judgment of the court shall be immediately final and executory.
search conducted and the respondent’s resultant failure to meet the strict With the judgment being final, it necessarily follows that it is no longer subject
standard under Article 41 of the Family Code. to an appeal, the dispositions and conclusions therein having become
immutable and unalterable not only as against the parties but even as
The Issues against the courts.8 Modification of the court’s ruling, no matter how
erroneous is no longer permissible. The final and executory nature of this
summary proceeding thus prohibits the resort to appeal. As explained in
The petition poses to us the following issues:

Republic of the Phils. v. Bermudez-Lorino,9 the right to appeal is not granted Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
to parties because of the express mandate of Article 247 of the Family Code, PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern
to wit: summary court proceedings in the Family Code:
In Summary Judicial Proceedings under the Family Code, there is no "ART. 238. Until modified by the Supreme Court, the procedural rules in this
reglementary period within which to perfect an appeal, precisely because Title shall apply in all cases provided for in this Code requiring summary
judgments rendered thereunder, by express provision of [Article] 247, Family court proceedings. Such cases shall be decided in an expeditious manner
Code, supra, are "immediately final and executory." It was erroneous, without regard to technical rules."
therefore, on the part of the RTCto give due course to the Republic’s appeal
and order the transmittal of the entire records of the case to the Court of In turn, Article 253 of the Family Code specifies the cases covered by the
Appeals. rules in chapters two and three of the same title. It states:
An appellate court acquires no jurisdiction to review a judgment which, by "ART. 253. The foregoing rules in Chapters 2and 3 hereof shall likewise
express provision of law, is immediately final and executory. As we have said govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and
in Veloria vs. Comelec, "the right to appeal is not a natural right nor is it a 217, insofar as they are applicable."(Emphasis supplied.)
part of due process, for it is merely a statutory privilege." Since, by express
mandate of Article 247 of the Family Code, all judgments rendered in In plain text, Article 247 in Chapter 2 of the same title reads:
summary judicial proceedings in Family Law are "immediately final and
executory," the right to appeal was not granted to any of the parties therein.
The Republic of the Philippines, as oppositor in the petition for declaration of "ART.247. The judgment of the court shall be immediately final and
presumptive death, should not be treated differently. It had no right to appeal executory."
the RTC decision of November 7, 2001. [emphases ours; italics supplied]
By express provision of law, the judgment of the court in a summary
Certiorari Lies to Challenge the Decisions, Judgments or Final proceeding shall be immediately final and executory. As a matter of course, it
Orders of Trial Courts in a Summary Proceeding for the Declaration of follows that no appeal can be had of the trial court's judgment ina summary
Presumptive Death Under the Family Code proceeding for the declaration of presumptive death of an absent spouse
under Article 41 of the Family Code. It goes without saying, however, that an
aggrieved party may file a petition for certiorari to question abuse of
A losing party in this proceeding, however, is not entirely left without a discretion amounting to lack of jurisdiction. Such petition should be filed in
remedy. While jurisprudence tells us that no appeal can be made from the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts.
the trial court's judgment, an aggrieved party may, nevertheless, file a To be sure, even if the Court's original jurisdiction to issue a writ of certiorari
petition for certiorari under Rule 65 of the Rules of Court to question any is concurrent with the RTCs and the Court of Appeals in certain cases, such
abuse of discretion amounting to lack or excess of jurisdiction that transpired. concurrence does not sanction an unrestricted freedom of choice of court
forum.
As held in Delos Santos v. Rodriguez, et al.,10 the fact that a decision has
become final does not automatically negate the original action of the CA to Viewed in this light, we find that the petitioner’s resort to certiorari under Rule
issue certiorari, prohibition and mandamus in connection with orders or 65 of the Rules of Court to question the RTC’s order declaring Jerry
processes issued by the trial court. Certiorari may be availed of where a court presumptively dead was proper.
has acted without or in excess of jurisdiction or with grave abuse of
discretion, and where the ordinary remedy of appeal is not available. Such a
procedure finds support in the case of Republic v. Tango,11 wherein we held b. On the Issue of the Existence of Well-Founded Belief
that:
The Essential Requisites for the Declaration of Presumptive Death
This case presents an opportunity for us to settle the rule on appeal of Under Article 41 of the Family Code
judgments rendered in summary proceedings under the Family Code and
accordingly, refine our previous decisions thereon.

Before a judicial declaration of presumptive death can be obtained, it must be absentee is still alive; or the absentee is generally considered to be dead and
shown that the prior spouse had been absent for four consecutive years and believed to be so by the spouse present, or is presumed dead under Articles
the present spouse had a well-founded belief that the prior spouse was 390 and 391 of the Civil Code. The Family Code, upon the other hand,
already dead. Under Article 41 of the Family Code, there are four (4) prescribes as "well founded belief" that the absentee is already dead before a
essential requisites for the declaration of presumptive death: petition for declaration of presumptive death can be granted.
1. That the absent spouse has been missing for four consecutive Thus, mere absence of the spouse (even for such period required by the
years, or two consecutive years if the disappearance occurred where law), lack of any news that such absentee is still alive, failure to communicate
there is danger of death under the circumstances laid down in Article or general presumption of absence under the Civil Code would not suffice.
391, Civil Code; This conclusion proceeds from the premise that Article 41 of the Family Code
places upon the present spouse the burden of proving the additional and
2. That the present spouse wishes to remarry; more stringent requirement of "well-founded belief" which can only be
discharged upon a showing of proper and honest-to-goodness inquiries and
efforts to ascertain not only the absent spouse’s whereabouts but, more
3. That the present spouse has a well-founded belief that the
importantly, that the absent spouse is still alive or is already dead. 15
absentee is dead; and
The Requirement of Well-Founded Belief

4. That the present spouse files a summary proceeding for the
declaration of presumptive death of the absentee.12
The law did not define what is meant by "well-founded belief." It depends
upon the circumstances of each particular case. Its determination, so to
The Present Spouse Has the Burden of Proof to Show that All the
speak, remains on a case-to-case basis. To be able to comply with this
Requisites Under Article 41 of the Family Code Are Present
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
The burden of proof rests on the present spouse to show that all the and that based on these efforts and inquiries, he/she believes that under the
requisites under Article 41 of the Family Code are present. Since it is the circumstances, the absent spouseis already dead. It requires exertion of
present spouse who, for purposes of declaration of presumptive death, active effort (not a mere passive one).
substantially asserts the affirmative of the issue, it stands to reason that the
burden of proof lies with him/her. He who alleges a fact has the burden of
To illustrate this degree of "diligent and reasonable search" required by the
proving it and mere allegation is not evidence.13
law, an analysis of the following relevant cases is warranted:
Declaration of Presumptive Death Under Article 41 of the Family Code
i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16
Imposes a Stricter Standard
In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court

Notably, Article 41 of the Family Code, compared to the old provision of the
ruled that the present spouse failed to prove that he had a well-founded belief
Civil Code which it superseded, imposes a stricter standard. It requires a
that his absent spouse was already dead before he filed his petition. His
"well-founded belief " that the absentee is already dead before a petition for
efforts to locate his absent wife allegedly consisted of the following:
declaration of presumptive death can be granted. We have had occasion to
make the same observation in Republic v. Nolasco,14 where we noted the
crucial differences between Article 41 of the Family Code and Article 83 of (1) He went to his in-laws’ house to look for her;
the Civil Code, to wit:
(2) He sought the barangay captain’s aid to locate her;
Under Article 41, the time required for the presumption to arise has been
shortened to four (4) years; however, there is need for a judicial declaration (3) He went to her friends’ houses to find her and inquired about her
of presumptive death to enable the spouse present to remarry. Also, Article whereabouts among his friends;
41 of the Family Code imposes a stricter standard than the Civil Code: Article
83 of the Civil Code merely requires either that there be no news that such

(4) He went to Manila and worked as a part-time taxi driver to look for media for this end, but she did not. Worse, she failed to explain these
her in malls during his free time; omissions.
(5) He went back to Catbalogan and again looked for her; and iii.Republic v. Nolasco21
(6) He reported her disappearance to the local police station and to In Nolasco, the present spouse filed a petition for declaration of presumptive
the NBI. death of his wife, who had been missing for more than four years. He testified
that his efforts to find her consisted of:
Despite these alleged "earnest efforts," the Court still ruled against the
present spouse. The Court found that he failed to present the persons from (1) Searching for her whenever his ship docked in England;
whom he allegedly made inquiries and only reported his wife’s absence after
the OSG filed its notice to dismiss his petition in the RTC. (2) Sending her letters which were all returned to him; and
The Court also provided the following criteria for determining the existence of (3) Inquiring from their friends regarding her whereabouts, which all
a "well-founded belief" under Article 41 of the Family Code: proved fruitless. The Court ruled that the present spouse’s
investigations were too sketchy to form a basis that his wife was
The belief of the present spouse must be the result of proper and honest to already dead and ruled that the pieces of evidence only proved that
goodness inquiries and efforts to ascertain the whereabouts of the absent his wife had chosen not to communicate with their common
spouse and whether the absent spouse is still alive or is already dead. acquaintances, and not that she was dead.
Whether or not the spouse present acted on a well-founded belief of death of
the absent spouse depends upon the inquiries to be drawn from a great iv.The present case
many circumstances occurring before and after the disappearance of the
absent spouse and the nature and extent of the inquiries made by [the] In the case at bar, the respondent’s "well-founded belief" was anchored on
present spouse.18 her alleged "earnest efforts" to locate Jerry, which consisted of the following:
ii. Republic v. Granada19 (1) She made inquiries about Jerry’s whereabouts from her in-laws,
neighbors and friends; and
Similarly in Granada, the Court ruled that the absent spouse failed to prove
her "well-founded belief" that her absent spouse was already dead prior to (2) Whenever she went to a hospital, she saw to it that she looked
her filing of the petition. In this case, the present spouse alleged that her through the patients’ directory, hoping to find Jerry.
brother had made inquiries from their relatives regarding the absent spouse’s
whereabouts. The present spouse did not report to the police nor seek the
aid of the mass media. Applying the standards in Republic of the Philippines These efforts, however, fell short of the "stringent standard" and degree of
v. Court of Appeals (Tenth Div.),20 the Court ruled against the present diligence required by jurisprudence for the following reasons:
spouse, as follows:
First, the respondent did not actively look for her missing husband.1âwphi1 It
Applying the foregoing standards to the present case, petitioner points out can be inferred from the records that her hospital visits and her consequent
that respondent Yolanda did not initiate a diligent search to locate her absent checking of the patients’ directory therein were unintentional. She did not
husband. While her brother Diosdado Cadacio testified to having purposely undertake a diligent search for her husband as her hospital visits
inquiredabout the whereabouts of Cyrus from the latter’s relatives, these were not planned nor primarily directed to look for him. This Court thus
relatives were not presented to corroborate Diosdado’s testimony. In short, considers these attempts insufficient to engender a belief that her husband is
respondent was allegedly not diligent in her search for her husband. dead.
Petitioner argues that if she were, she would have sought information from
the Taiwanese Consular Office or assistance from other government Second, she did not report Jerry’s absence to the police nor did she seek the
agencies in Taiwan or the Philippines. She could have also utilized mass aid of the authorities to look for him. While a finding of well-founded belief

varies with the nature of the situation in which the present spouse is placed, resorted to by parties wishing to remarry knowing fully well that their alleged
under present conditions, we find it proper and prudent for a present spouse, missing spouses are alive and well. It is even possible that those who cannot
whose spouse had been missing, to seek the aid of the authorities or, at the have their marriages xxx declared null and void under Article 36 of the Family
very least, report his/her absence to the police. Code resort to Article 41 of the Family Code for relief because of the xxx
summary nature of its proceedings.
Third, she did not present as witnesses Jerry’s relatives or their neighbors
and friends, who can corroborate her efforts to locate Jerry. Worse, these The application of this stricter standard becomes even more imperative if we
persons, from whom she allegedly made inquiries, were not even named. As consider the State’s policy to protect and strengthen the institution of
held in Nolasco, the present spouse’s bare assertion that he inquired from his marriage.24 Since marriage serves as the family’s foundation 25 and since it is
friends about his absent spouse’s whereabouts is insufficient as the names of the state’s policy to protect and strengthen the family as a basic social
the friends from whom he made inquiries were not identified in the testimony institution,26 marriage should not be permitted to be dissolved at the whim of
nor presented as witnesses. the parties. In interpreting and applying Article 41, this is the underlying
rationale –to uphold the sanctity of marriage. Arroyo, Jr.v. Court of Appeals27
Lastly, there was no other corroborative evidence to support the respondent’s reflected this sentiment when we stressed:
claim that she conducted a diligent search. Neither was there supporting
evidence proving that she had a well-founded belief other than her bare [The]protection of the basic social institutions of marriage and the family in
claims that she inquired from her friends and in-laws about her husband’s the preservation of which the State has the strongest interest; the public
whereabouts. In sum, the Court is of the view that the respondent merely policy here involved is of the most fundamental kind. In Article II, Section 12
engaged in a "passive search" where she relied on uncorroborated inquiries of the Constitution there is set forth the following basic state policy:
from her in-laws, neighbors and friends. She failed to conduct a diligent
search because her alleged efforts are insufficient to form a well-founded The State recognizes the sanctity of family life and shall protect and
belief that her husband was already dead. As held in Republic of the strengthen the family as a basic autonomous social institution.
Philippines v. Court of Appeals (Tenth Div.),22 "[w]hether or not the spouse
present acted on a well-founded belief of death of the absent spouse Strict Standard Prescribed Under Article 41 of the Family Code Is for
depends upon the inquiries to be drawn from a great many circumstances the Present Spouse’s Benefit
occurring before and after the disappearance of the absent spouse and the
natureand extent of the inquiries made by [the] present spouse."
The requisite judicial declaration of presumptive death of the absent spouse
(and consequently, the application of a stringent standard for its issuance) is
Strict Standard Approach Is Consistent with the State’s Policy to also for the present spouse's benefit. It is intended to protect him/her from a
Protect and Strengthen Marriage 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
In the above-cited cases, the Court, fully aware of the possible collusion of court's declaration.
spouses in nullifying their marriage, has consistently applied the
"strictstandard" approach. This is to ensure that a petition for declaration of Upon the issuance of the decision declaring his/her absent spouse
presumptive death under Article 41 of the Family Code is not used as a tool presumptively dead, the present spouse's good faith in contracting a second
to conveniently circumvent the laws. Courts should never allow procedural marriage is effectively established. The decision of the competent court
shortcuts and should ensure that the stricter standard required by the Family constitutes sufficient proof of his/her good faith and his/her criminal intent in
Code is met. In Republic of the Philippines v. Court of Appeals (Tenth Div.),23 case of remarriage is effectively negated.28 Thus, for purposes of remarriage,
we emphasized that: it is necessary to strictly comply with the stringent standard and have the
absent spouse judicially declared presumptively dead.
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 Final Word
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 As a final word, it has not escaped this Court's attention that the strict
standard required in petitions for declaration of presumptive death has not

been fully observed by the lower courts. We need only to cite the instances
when this Court, on review, has consistently ruled on the sanctity of marriage
and reiterated that anything less than the use of the strict standard
necessitates a denial. To rectify this situation, lower courts are now expressly
put on notice of the strict standard this Court requires in cases under Article
41 of the Family Code.
WHEREFORE, in view of the foregoing, the assailed decision dated August

27, 2008 of the Court of Appeals, which affirmed the order dated December
15, 2006 of the Regional Trial Court, Branch 25, Koronadal City, South
Cotabato, declaring Jerry F. Cantor presumptively dead is hereby
REVERSED and SET ASIDE.
SO ORDERED.

[5] G.R. No. 163604 May 6, 2005 In granting the petition, the trial judge, Judge Fortunito L. Madrona, cited
Article 41, par. 2 of the Family Code. Said article provides that for the
REPUBLIC OF THE PHILIPPINES, petitioner, vs.THE HON. COURT OF purpose of contracting a valid subsequent marriage during the subsistence of
APPEALS (Twentieth Division), HON. PRESIDING JUDGE FORTUNITO a previous marriage where the prior spouse had been absent for four
L. MADRONA, RTC-BR. 35 and APOLINARIA MALINAO JOMOC, consecutive years, the spouse present must institute summary proceedings
respondents. for the declaration of presumptive death of the absentee spouse, without
prejudice to the effect of the reappearance of the absent spouse.
Remedial Law; Appeals; Record on Appeal; The petition of Apolinaria Jomoc
required, and is, therefore, a summary proceeding under the Family Code, not a The Republic, through the Office of the Solicitor General, sought to appeal
special proceeding under the Revised Rules of Court appeal for which calls for the the trial court’s order by filing a Notice of Appeal. 3
filing of a Record on Appeal.—Since Title XI of the Family Code, entitled
SUMMARY JUDICIAL PROCEEDING IN THE FAMILY LAW, contains the By Order of November 22, 1999s,4 the trial court, noting that no record of
following provision, inter alia: x x x Art. 238. Unless modified by the Supreme appeal was filed and served "as required by and pursuant to Sec. 2(a), Rule
Court, the procedural rules in this Title shall apply in all cases provided for in this 41 of the 1997 Rules of Civil Procedure, the present case being a special
Codes requiring summary court proceedings. Such cases shall be decided in an proceeding," disapproved the Notice of Appeal.
expeditious manner without regard to technical rules. (Emphasis and italics
supplied) x x x, there is no doubt that the petition of Apolinaria Jomoc required, and The Republic’s Motion for Reconsideration of the trial court’s order of
is, therefore, a summary proceeding under the Family Code, not a special proceeding disapproval having been denied by Order of January 13, 2000,5 it filed a
under the Revised Rules of Court appeal for which calls for the filing of a Record on Petition for Certiorari6 before the Court of Appeals, it contending that the
Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal declaration of presumptive death of a person under Article 41 of the Family
from the trial court’s order sufficed. Code is not a special proceeding or a case of multiple or separate appeals
Same; Same; Petitioner’s failure to attach to his petition before the appellate requiring a record on appeal.
court a copy of the trial court’s order denying its motion for reconsideration of the
disapproval of its Notice of Appeal is not necessarily fatal for the rules of procedure By Decision of May 5, 2004,7 the Court of Appeals denied the Republic’s
are not to be applied in a technical sense.—On the alleged procedural flaw in petition on procedural and substantive grounds in this wise:
petitioner’s petition before the appellate court. Petitioner’s failure to attach to his
petition before the appellate court a copy of the trial court’s order denying its motion
At the outset, it must be stressed that the petition is not sufficient in form. It
for reconsideration of the disapproval of its Notice of Appeal is not necessarily fatal,
failed to attach to its petition a certified true copy of the assailed Order
for the rules of procedure are not to be applied in a technical sense. Given the issue
dated January 13, 2000 [denying its Motion for Reconsideration of the
raised before it by petitioner, what the appellate court should have done was to direct
November 22, 1999 Order disapproving its Notice of Appeal]. Moreover, the
petitioner to comply with the rule.
petition questioned the [trial court’s] Order dated August 15, 1999, which
declared Clemente Jomoc presumptively dead, likewise for having been
DECISION issued with grave abuse of discretion amounting to lack of jurisdiction, yet,
not even a copy could be found in the records. On this score alone, the
CARPIO-MORALES, J.: petition should have been dismissed outright in accordance with Sec. 3,
Rule 46 of the Rules of Court.
In "In the Matter of Declaration of Presumptive Death of Absentee Spouse
Clemente P. Jomoc, Apolinaria Malinao Jomoc, petitioner," the Ormoc City, However, despite the procedural lapses, the Court resolves to delve deeper
Regional Trial Court, Branch 35, by Order of September 29, 1999,1 granted into the substantive issue of the validity/nullity of the assailed order.
the petition on the basis of the Commissioner’s Report 2 and accordingly
declared the absentee spouse, who had left his petitioner-wife nine years The principal issue in this case is whether a petition for declaration of
earlier, presumptively dead. the presumptive death of a person is in the nature of a special
proceeding. If it is, the period to appeal is 30 days and the party appealing
must, in addition to a notice of appeal, file with the trial court a record on

appeal to perfect its appeal. Otherwise, if the petition is an ordinary action, The pertinent provisions on the General Provisions on Special
the period to appeal is 15 days from notice or decision or final order Proceedings, Part II of the Revised Rules of Court entitled SPECIAL
appealed from and the appeal is perfected by filing a notice of appeal PROCEEDINGS, read:
(Section 3, Rule 41, Rules of Court).
RULE 72
As defined in Section 3(a), Rule 1 of the Rules of Court, "a civil action is SUBJECT MATTER AND APPLICABILITY
one by which a party sues another for the enforcement or protection of a OF GENERAL RULES
right, or the prevention of redress of a wrong" while a special proceeding
under Section 3(c) of the same rule is defined as "a remedy by which a Section 1. Subject matter of special proceedings. – Rules of special
party seeks to establish a status, a right or a particular fact (Heirs of proceedings are provided for in the following:
Yaptinchay, et al. v. Del Rosario, et al., G.R. No. 124320, March 2, 1999).
(a) Settlement of estate of deceased persons;
Considering the aforementioned distinction, this Court finds that the (b) Escheat;
instant petition is in the nature of a special proceeding and not an (c) Guardianship and custody of children;
ordinary action. The petition merely seeks for a declaration by the trial (d) Trustees;
court of the presumptive death of absentee spouse Clemente Jomoc. It (e) Adoption;
does not seek the enforcement or protection of a right or the prevention or (f) Rescission and revocation of adoption;
redress of a wrong. Neither does it involve a demand of right or a cause of (g) Hospitalization of insane persons;
action that can be enforced against any person. (h) Habeas corpus;
(i) Change of name;
On the basis of the foregoing discussion, the subject Order dated January (j) Voluntary dissolution of corporations;
13, 2000 denying OSG’s Motion for Reconsideration of the Order dated (k) Judicial approval of voluntary recognition of minor natural children;
November 22, 1999 disapproving its Notice of Appeal was correctly (l) Constitution of family home;
issued. The instant petition, being in the nature of a special (m) Declaration of absence and death;
proceeding, OSG should have filed, in addition to its Notice of (n) Cancellation or correction of entries in the civil registry.
Appeal, a record on appeal in accordance with Section 19 of the Interim
Rules and Guidelines to Implement BP Blg. 129 and Section 2(a), Rule 41 Sec. 2. Applicability of rules of civil actions. – In the absence of
of the Rules of Court . special provisions, the rules provided for in ordinary actions shall be,
as far as practicable, applicable in special proceedings.
The Republic (petitioner) insists that the declaration of presumptive death
under Article 41 of the Family Code is not a special proceeding involving The pertinent provision of the Civil Code on presumption of death provides:
multiple or separate appeals where a record on appeal shall be filed and
served in like manner. Art. 390. After an absence of seven years, it being unknown whether
or not the absentee still lives, he shall be presumed dead for all
Petitioner cites Rule 109 of the Revised Rules of Court which enumerates the purposes, except for those of succession.
cases wherein multiple appeals are allowed and a record on appeal is
required for an appeal to be perfected. The petition for the declaration of Upon the other hand, Article 41 of the Family Code, upon which the trial court
presumptive death of an absent spouse not being included in the anchored its grant of the petition for the declaration of presumptive death of
enumeration, petitioner contends that a mere notice of appeal suffices. the absent spouse, provides:
By Resolution of December 15, 2004,8 this Court, noting that copy of the Art. 41. A marriage contracted by any person during the subsistence of a
September 27, 2004 Resolution 9 requiring respondent to file her comment on previous marriage shall be null and void, unless before the celebration of
the petition was returned unserved with postmaster’s notation "Party the subsequent marriage, the prior spouses had been absent for four
refused," Resolved to consider that copy deemed served upon her. consecutive years and the spouse present had a well-founded belief that
the absent spouses was already dead. In case of disappearance where

there is danger of death under the circumstances set forth in the provisions filing of a Record on Appeal. It being a summary ordinary proceeding, the
of Article 391 of the Civil Code, an absence of only two years shall be filing of a Notice of Appeal from the trial court’s order sufficed.
sufficient.
That the Family Code provision on repeal, Art. 254, provides as follows:
For the purpose pf contracting the subsequent marriage under the
preceding paragraph, the spouses present must institute a summary Art. 254. Titles III, IV, V, VI, VII, VIII, IX, XI and XV of Book I of
proceeding as provided in this Code for the declaration of presumptive Republic Act No. 386, otherwise known as the Civil Code of the
death of the absentee, without prejudice to the effect of a reappearance of Philippines, as amended, and Articles 17, 18, 19, 27, 28, 29, 30, 31,
the absent spouse. 39, 40, 41 and 42 of Presidential Decree No. 603, otherwise known
as the Child and Youth Welfare Code, as amended, and all laws,
Rule 41, Section 2 of the Revised Rules of Court, on Modes of Appeal, decrees, executive orders, proclamations rules and regulations, or
invoked by the trial court in disapproving petitioner’s Notice of Appeal, parts thereof, inconsistent therewith are hereby repealed, seals
provides: the case in petitioner’s favor.
Sec. 2. Modes of appeal. - Finally, on the alleged procedural flaw in petitioner’s petition before the
appellate court. Petitioner’s failure to attach to his petition before the
(a) Ordinary appeal. - The appeal to the Court of Appeals in cases decided appellate court a copy of the trial court’s order denying its motion for
by the Regional Trial Court in the exercise of its original jurisdiction shall be reconsideration of the disapproval of its Notice of Appeal is not necessarily
taken by filing a notice of appeal with the court which rendered the fatal, for the rules of procedure are not to be applied in a technical sense.
judgment or final order appealed from and serving a copy thereof upon the Given the issue raised before it by petitioner, what the appellate court should
adverse party. No record on appeal shall be required except in special have done was to direct petitioner to comply with the rule.
proceedings and other cases of multiple or separate appeals where the
law or these Rules so require. In such cases, the record on appeal shall As for petitioner’s failure to submit copy of the trial court’s order granting the
be filed and served in like manner. petition for declaration of presumptive death, contrary to the appellate court’s
observation that petitioner was also assailing it, petitioner’s 8-page petition 10
By the trial court’s citation of Article 41 of the Family Code, it is gathered that filed in said court does not so reflect, it merely having assailed the order
the petition of Apolinaria Jomoc to have her absent spouse declared disapproving the Notice of Appeal.
presumptively dead had for its purpose her desire to contract a valid
subsequent marriage. Ergo, the petition for that purpose is a "summary WHEREFORE, the assailed May 5, 2004 Decision of the Court of Appeals is
proceeding," following above-quoted Art. 41, paragraph 2 of the Family hereby REVERSED and SET ASIDE. Let the case be REMANDED to it for
Code. appropriate action in light of the foregoing discussion.
Since Title XI of the Family Code, entitled SUMMARY JUDICIAL SO ORDERED.

PROCEEDING IN THE FAMILY LAW, contains the following provision, inter
alia:
Art. 238. Unless modified by the Supreme Court, the procedural rules in
this Title shall apply in all cases provided for in this Codes requiring
summary court proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules.
there is no doubt that the petition of Apolinaria Jomoc required, and is,
therefore, a summary proceeding under the Family Code, not a special
proceeding under the Revised Rules of Court appeal for which calls for the

Special Proceedings Rule 107

Uploaded by

Copyright:

Available Formats

Special Proceedings Rule 107

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Special Proceedings Rule 107

Uploaded by

Copyright:

Available Formats

[1] G.R. No.

₯Special Proceedings (Rule 107- Absentees) Page 1 of 25

₯Special Proceedings (Rule 107- Absentees) Page 2 of 25

Finally, other than Nilda's bare testimony, no other corroborative evidence

WHEREFORE, the petition is GRANTED. Accordingly, the Decision dated

₯Special Proceedings (Rule 107- Absentees) Page 3 of 25

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. YOLANDA CADACIO SERENO, J.:

₯Special Proceedings (Rule 107- Absentees) Page 4 of 25

₯Special Proceedings (Rule 107- Absentees) Page 5 of 25

₯Special Proceedings (Rule 107- Absentees) Page 6 of 25

₯Special Proceedings (Rule 107- Absentees) Page 7 of 25

The Republic’s arguments are well-taken. Nevertheless, we are constrained

₯Special Proceedings (Rule 107- Absentees) Page 8 of 25

₯Special Proceedings (Rule 107- Absentees) Page 9 of 25

₯Special Proceedings (Rule 107- Absentees) Page 10 of 25

Petitioner moved for reconsideration, but the CA remained steadfast.

₯Special Proceedings (Rule 107- Absentees) Page 11 of 25

₯Special Proceedings (Rule 107- Absentees) Page 12 of 25

₯Special Proceedings (Rule 107- Absentees) Page 13 of 25

2. In order to avail of the presumption, therefore, the claimant need only

₯Special Proceedings (Rule 107- Absentees) Page 14 of 25

₯Special Proceedings (Rule 107- Absentees) Page 15 of 25

₯Special Proceedings (Rule 107- Absentees) Page 16 of 25

₯Special Proceedings (Rule 107- Absentees) Page 17 of 25

₯Special Proceedings (Rule 107- Absentees) Page 18 of 25

The Requirement of Well-Founded Belief

In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court

₯Special Proceedings (Rule 107- Absentees) Page 19 of 25

₯Special Proceedings (Rule 107- Absentees) Page 20 of 25

₯Special Proceedings (Rule 107- Absentees) Page 21 of 25

WHEREFORE, in view of the foregoing, the assailed decision dated August

₯Special Proceedings (Rule 107- Absentees) Page 22 of 25

₯Special Proceedings (Rule 107- Absentees) Page 23 of 25

₯Special Proceedings (Rule 107- Absentees) Page 24 of 25

Since Title XI of the Family Code, entitled SUMMARY JUDICIAL SO ORDERED.

₯Special Proceedings (Rule 107- Absentees) Page 25 of 25

You might also like