Declaration of Presumptive Death: Strict Standards Required Under Rule 41

Is For The Present Spouses Benefit

Maria Fe and Jerry were married on September 20, 1997. In January, 1998, the two had a
violent quarrel owing to Jerrys failure to reach sexual climax and his animosity towards
her father. He left the conjugal dwelling and had not been since. On May 21, 2002, Maria
Fe filed a petition to declare Jerry as presumptively dead under Article 41 of the Family
Code. She alleged that she had a well-founded belief that Jerry is dead, and inquired from
her in-laws about Jerry but to no avail. She checked all the patients directory whenever she
visits a hospital. All these earnest efforts proved futile. The RTC granted Maria Fes
petition, but the same was contested by the Office of the Solicitor General through a
petition for certiorari before the Court of Appeals. However, the CA dismissed the OSGs
petition, thus it elevated its case to the Supreme Court. It posits that certiorari lies to
question summary judicial proceedings under the Family Code; it also questions the
circumstances of the case and Maria Fes failure to comply with the strict standards of Art.
41 of the Family Code.
The Supreme Court:
We grant the petition.
a. On the Issue of the Propriety of Certiorari as a Remedy
Courts Judgment in the Judicial Proceedings for Declaration
Presumptive Death Is Final and Executory, Hence, Unappealable

of

The Family Code was explicit that the courts judgment in summary 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.

Article 41, in relation to Article 247, of the Family Code provides:

Art. 41. A marriage contracted by any person during subsistence of a previous

marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the
spouse present has a well-founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death under the circumstances

set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding
paragraph the spouse present must institute a summary proceeding as provided in
this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.

Art. 247. The judgment of the court shall be immediately final and executory.
[underscores ours]
With the judgment being final, it necessarily follows that it is no longer subject to an
appeal, the dispositions and conclusions therein having become immutable and
unalterable not only as against the parties but even as against the courts.
Modification of the courts 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 Republic of the Phils. v. Bermudez-Lorino, the right
to appeal is not granted to parties because of the express mandate of Article 247 of
the Family Code, to wit:

In Summary Judicial Proceedings under the Family Code, there is no reglementary

period within which to perfect an appeal, precisely because judgments rendered
thereunder, by express provision of [Article] 247, Family Code, supra, are
immediately final and executory. It was erroneous, therefore, on the part of the
RTC to give due course to the Republics appeal and order the transmittal of the
entire records of the case to the Court of Appeals.

An appellate court acquires no jurisdiction to review a judgment which, by express

provision of law, is immediately final and executory. As we have said in Veloria vs.
Comelec, the right to appeal is not a natural right nor is it a 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 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 presumptive death, should not be treated differently. It
had no right to appeal the RTC decision of November 7, 2001. [emphases ours;
italics supplied]

Certiorari Lies to Challenge the Decisions, Judgments or Final Orders of

Trial Courts in a Summary Proceeding for the Declaration of Presumptive
Death Under the Family Code

A losing party in this proceeding, however, is not entirely left without a remedy.
While jurisprudence tells us that no appeal can be made from the trial courts
judgment, an aggrieved party may, nevertheless, file a petition for certiorari under
Rule 65 of the Rules of Court to question any abuse of discretion amounting to lack
or excess of jurisdiction that transpired.

As held in De los Santos v. Rodriguez, et al., the fact that a decision has become
final does not automatically negate the original action of the CA to issue certiorari,
prohibition and mandamus in connection with orders or processes issued by the trial
court. Certiorari may be availed of where a court 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 ofRepublic v.
Tango, wherein we held that:

This case presents an opportunity for us to settle the rule on appeal of judgments
rendered in summary proceedings under the Family Code and accordingly, refine
our previous decisions thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN
THE FAMILY LAW, establishes the rules that govern summary court proceedings in
the Family Code:

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 court
proceedings. Such cases shall be decided in an expeditious manner without regard
to technical rules.
In turn, Article 253 of the Family Code specifies the cases covered by the rules in
chapters two and three of the same title. It states:

ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern
summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar
as they are applicable. (Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

ART. 247. The judgment of the court shall be immediately final and executory.
By express provision of law, the judgment of the court in a summary proceeding
shall be immediately final and executory. As a matter of course, it follows that no
appeal can be had of the trial courts judgment in a summary 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. To be sure, even if the Courts original jurisdiction to issue a
writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain
cases, such concurrence does not sanction an unrestricted freedom of choice of
court
forum.
[emphasis
ours]
Viewed in this light, we find that the petitioners resort to certiorari under Rule 65 of
the Rules of Court to question the RTCs order declaring Jerry presumptively dead
was proper.

b. On the Issue of the Existence of Well-Founded Belief

The Essential Requisites for the Declaration of Presumptive Death Under Article 41
of the Family Code

Before a judicial declaration of presumptive death can be obtained, it must be

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

1. That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of
death under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead;
and
4. That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.

The Present Spouse Has the Burden of Proof to Show that All the Requisites Under
Article 41 of the Family Code Are Present

The burden of proof rests on the present spouse to show that all the requisites
under Article 41 of the Family Code are present. Since it is the present spouse who,
for purposes of declaration of presumptive death, substantially asserts the
affirmative of the issue, it stands to reason that the burden of proof lies with
him/her. He who alleges a fact has the burden of proving it and mere allegation is
not evidence.

Declaration of Presumptive Death Under Article 41 of the Family Code Imposes a

Stricter Standard

Notably, Article 41 of the Family Code, compared to the old provision of the Civil
Code which it superseded, imposes a stricter standard. It requires a well-founded
belief that the absentee is already dead before a petition for declaration of
presumptive death can be granted. We have had occasion to make the same
observation in Republic v. Nolasco, where we noted the crucial differences between
Article 41 of the Family Code and Article 83 of the Civil Code, to wit:

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 of presumptive
death to enable the spouse present to remarry. Also, Article 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 absentee is still alive; or the
absentee is generally considered to be dead and believed to be so by the spouse
present, or is presumed dead under Articles 390 and 391 of the Civil Code. The
Family Code, upon the other hand, prescribes as well founded belief that the
absentee
is
already
dead
before
a
petition
for
declaration
of
presumptive death can be granted.

Thus, mere absence of the spouse (even for such period required by the law), lack
of any news that such absentee is still alive, failure to communicate or general
presumption of absence under the Civil Code would not suffice. 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 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 spouses
whereabouts but, more importantly, that the absent spouse is still alive or is already
dead.

The Requirement of Well-Founded Belief

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 speak, remains on a
case-to-case basis. To be able to comply with this requirement, the present spouse
must prove that his/her belief was the result of diligent and reasonable efforts and
inquiries to locate the absent spouse and that based on these efforts and inquiries,
he/she believes that under the circumstances, the absent spouse is already dead. It
requires exertion of active effort (not a mere passive one).

To illustrate this degree of diligent and reasonable search required by the law, an
analysis of the following relevant cases is warranted:

i. Republic of the Philippines v. Court of Appeals (Tenth Div.)

In Republic of the Philippines v. Court of Appeals (Tenth Div.), the Court ruled that
the present spouse failed to prove that he had a well-founded belief that his absent
spouse was already dead before he filed his petition. His efforts to locate his absent
wife allegedly consisted of the following:

(1) He went to his in-laws house to look for her;

(2) He sought the barangay captains aid to locate her;
(3) He went to her friends houses to find her and inquired about her
whereabouts among his friends;
(4) He went to Manila and worked as a part-time taxi driver to look for her in
malls during his free time;
(5) He went back to Catbalogan and again looked for her; and
(6) He reported her disappearance to the local police station and to the NBI.

Despite these alleged earnest efforts, the Court still ruled against the present
spouse. The Court found that he failed to present the persons from whom he
allegedly made inquiries and only reported his wifes absence after the OSG filed its
notice to dismiss his petition in the RTC.
The Court also provided the following criteria for determining the existence of a
well-founded belief under Article 41 of the Family Code:

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 [the] present spouse.

ii. Republic v. Granada

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 her filing of
the petition. In this case, the present spouse alleged that her brother had made
inquiries from their relatives regarding the absent spouses 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 v. Court of Appeals
(Tenth Div.), the Court ruled against the present spouse, as follows:

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 latters relatives, these relatives were not presented
to corroborate Diosdados 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.

iii. Republic v. Nolasco

In Nolasco, the present spouse filed a petition for declaration of presumptive death
of his wife, who had been missing for more than four years. He testified that his
efforts to find her consisted of:
(1) Searching for her whenever his ship docked in England;
(2) Sending her letters which were all returned to him; and
(3) Inquiring from their friends regarding her whereabouts, which all proved
fruitless.

The Court ruled that the present spouses investigations were too sketchy to form a
basis that his wife was already dead and ruled that the pieces of evidence only
proved that his wife had chosen not to communicate with their common
acquaintances, and not that she was dead.

iv. The present case

In the case at bar, the respondents well-founded belief was anchored on her
alleged earnest efforts to locate Jerry, which consisted of the following:
(1) She made inquiries about Jerrys whereabouts from her in-laws, neighbors
and friends; and
(2) Whenever she went to a hospital, she saw to it that she looked through the
patients
directory,
hoping
to
find
Jerry.

These efforts, however, fell short of the stringent standard and degree of
diligence required by jurisprudence for the following reasons:

First, the respondent did not actively look for her missing husband. It can be
inferred from the records that her hospital visits and her consequent checking of the
patients directory therein were unintentional. She did not purposely undertake a
diligent search for her husband as her hospital visits were not planned nor primarily
directed to look for him. This Court thus considers these attempts insufficient to
engender a belief that her husband is dead.

Second, she did not report Jerrys absence to the police nor did she seek the 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, under present
conditions, we find it proper and prudent for a present spouse, whose spouse had
been missing, to seek the aid of the authorities or, at the very least, report his/her
absence to the police.

Third, she did not present as witnesses Jerrys relatives or their neighbors and
friends, who can corroborate her efforts to locate Jerry. Worse, these persons, from
whom she allegedly made inquiries, were not even named. As held in Nolasco, the
present spouses bare assertion that he inquired from his friends about his absent
spouses whereabouts is insufficient as the names of the friends from whom he
made inquiries were not identified in the testimony nor presented as witnesses.

Lastly, there was no other corroborative evidence to support the respondents

claim that she conducted a diligent search. Neither was there supporting evidence
proving that she had a well-founded belief other than her bare claims that she
inquired from her friends and in-laws about her husbands whereabouts.

In sum, the Court is of the view that the respondent merely engaged in a passive
search where she relied on uncorroborated inquiries 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 belief that her husband was already dead. As
held in Republic of the Philippines v. Court of Appeals (Tenth Div.), [w]hether 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.

Strict Standard Approach Is Consistent with the States Policy to Protect and
Strengthen Marriage

In the above-cited cases, the Court, fully aware of the possible collusion of spouses
in nullifying their marriage, has consistently applied the strict standard approach.
This is to ensure that a petition for declaration of presumptive death under Article
41 of the Family Code is not used as a
tool to conveniently circumvent the laws. Courts should never allow procedural
shortcuts and
should ensure that the stricter standard required by the Family Code is met. In
Republic of the Philippines v. Court of Appeals (Tenth Div.),[23] we emphasized that:

In view of the summary nature of proceedings under Article 41 of the Family Code
for the declaration of presumptive death of ones spouse, the degree of due
diligence set by this Honorable Court in the above-mentioned cases in locating the
whereabouts of a missing spouse must be strictly complied with. There have been
times when Article 41 of the Family Code had been resorted to by parties wishing to
remarry knowing fully well that their alleged missing spouses are alive and well. It is
even possible that those who cannot have their marriages xxx declared null and
void under Article 36 of the Family Code resort to Article 41 of the Family Code for
relief because of the xxx summary nature of its proceedings.

The application of this stricter standard becomes even more imperative if we

consider the States policy to protect and strengthen the institution of marriage.
Since marriage serves as the familys foundation and since it is the states policy to
protect and strengthen the family as a basic social institution, marriage should not
be permitted to be dissolved at the whim of the parties. In interpreting and applying
Article 41, this is the underlying rationale to uphold the sanctity of
marriage. Arroyo, Jr. v. Court of Appeals[ reflected this sentiment when we
stressed:

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

The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution.

Strict Standard Prescribed Under Article 41 of the Family Code Is for the
Present Spouses Benefit

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

Upon the issuance of the decision declaring his/her absent spouse presumptively
dead, the present spouses good faith in contracting a second marriage is
effectively established. The decision of the competent court constitutes sufficient
proof of his/her good faith and his/her criminal intent in case of remarriage is
effectively negated. Thus, for purposes of remarriage, it is necessary to strictly
comply with the stringent standard and have the absent spouse judicially declared
presumptively dead.

Final Word
As a final word, it has not escaped this Courts 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

EN BANC, G.R. No. 184621, December 10, 2013, REPUBLIC OF THE PHILIPPINES,
PETITIONER, VS. MARIA FE ESPINOSA CANTOR, RESPONDENT