• In declaration of presumptive death, well-founded belief necessary

    Persida Acosta

    Persida Acosta

    Dear PAO,
    I married Jen in 2007. Our relationship did not last long because of individual differences. Sometime in 2008, we had a quarrel and she left our house and I presumed that she went home to her parents. After a few weeks, I visited her in her parent’s house in the province but I discovered that she was not there. My parents-in-law and I called her friends and other relatives in order to locate her but such efforts proved futile. Almost eight years have passed and at present, I have a partner whom I intend to marry. Can I file a petition for declaration of presumptive death, so that I can marry my partner?

    Dear Orlando,
    Article 41 of the Family Code of the Philippines (Executive Order No. 209), provides:

    “A marriage contracted by any person during the 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 had 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.”

    In the declaration of presumptive death for purposes of remarriage, it is essential that the spouse present who will institute the summary proceeding of declaration of presumptive death must have a well-founded belief that the absent spouse was already dead. This is the ruling of the Supreme Court in the case of Republic of the Philippines vs. Granada (G. R. No. 187512, June 13, 2012), where Chief Justice Maria Lourdes Sereno said:

    “The spouse present is, thus, burdened to prove that his spouse has been absent and that he has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent marriage. The law does not define what is meant by a well-grounded belief. Cuello Callon writes that es menester que su creencia sea firme se funde en motivos racionales.

    “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 the spouse.”

    In your situation, the petition for declaration of presumptive death that you intend to file will not prosper because you do not have a well-founded belief that your wife is already dead.

    Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

    We hope that we were able to enlighten you on the matter.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.


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