My husband is a seaman and he went to work overseas a month after our civil wedding. For four years now, we have not seen each other. I tried communicating with him through the mails and the numbers he gave me but response was nil. May I have him declared presumptively dead, under the circumstances, so I can remarry another man?
Fairly recent is the case of Republic of the Philippines vs. Jose B. Sareñogon (G.R. No. 199194, February10, 2016) penned by Associate Justice Mariano del Castillo, which would very well enlighten you in your situation:
“The ‘well-founded belief’ requisite under Article 41 of the Family Code is complied with only upon a showing that sincere honest-to-goodness efforts had indeed been made to ascertain whether the absent spouse is still alive or is already dead.”
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“Art. 41. 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.”
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“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 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 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.”
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“Given the court’s imposition of “strict standard” in a petition for a declaration of presumptive death under Article 41 of the Family Code, it must follow that there was no basis at all for the RTC’s [Regional Trial Court] finding that Jose’s petition complied with the requisites of Article 41 of the Family Code, in reference to the ‘well-founded’ belief standard. If anything, Jose’s pathetically anemic efforts to locate the missing Netchie are notches below the required degree of stringent diligence prescribed by jurisprudence. For, aside from his bare claims that he had inquired from alleged friends and relatives as to Netchie’s whereabouts, Jose did not call to the witness stand specific individuals or persons whom he allegedly saw or met in the course of his search or quest for the allegedly missing Netchie. Neither did he prove that he sought the assistance of the pertinent government agencies as well as the media, nor did he show that he undertook a thorough, determined and unflagging search for Netchie, say for at least two years (and what those years were), and naming the particular places, provinces, cities, barangay [villages]or municipalities that he visited, or went to, and identifying the specific persons he interviewed or talked to in the course of his search.”[Emphasis supplied, citations omitted.]
Verily, a mere allegation that you and your husband have not communicated for the past four years, and that he cannot be located in all his contact places and numbers given to you, are not sufficient to prove that there is a well-founded belief of his death. Albeit, you should keep in mind the strict standard of law in proving and presuming that he is dead for purposes of your remarriage given the above-quoted guidelines.
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.
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