Disappearance not sufficient to declare a spouse presumptively dead

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Persida Acosta

Persida Acosta

Dear PAO,
I married Mario on August 3, 1992. He was later on employed as ship crew (seaman) in one cargo vessel in the same year. The last time that he called me was in May 1993, and I have not heard anything from him since then. Last year, I met Adrian who eventually became my live-in partner. We would like to marry; however, I know that my marriage to Mario will be a hindrance. A relative of mine advised me to file a petition to declare Mario as presumptively dead. Since Mario has been absent for 23 years now, would that be sufficient to presume that he is dead?         
Wanda

Dear Wanda,
There are certain requirements provided by law in order to file a petition for declaration of presumptive death before the present spouse can remarry. This is in accordance with Article 41 of the Family Code of the Philippines, which states that:

“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 a 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 a 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 case of Republic of the Philippines vs. Tampus (G.R. No. 214243, March 16, 2016), Supreme Court Associate Justice, the Honorable Estela Perlas-Bernabe said that:

“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 4119 of the Family Code of the Philippines (Family Code), there are four (4) essential requisites for the declaration of presumptive death: (1) that the absent spouse has been missing for four (4) consecutive years, or two (2) consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391 of the 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”.

Applying the aforementioned decision to your case, it is very clear that you failed to satisfy the third requirement as stated above. The mere absence of Mario for 23 years is not sufficient. Such absence must be coupled with a well-founded belief that he is dead, so that your petition for declaration of presumptive death will prosper.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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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