• Only court can declare missing person dead

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    I haven’t seen my husband for several years already. I was informed by some of his relatives that he went back to his province to live with his siblings. I am now left alone in raising our four beautiful children. Considering the loneliness of my situation, I met another man who I want to marry someday so that I can have a partner to help me raise my children. Because of this, I want to know if I can have my missing husband declared dead already since I have no idea as to his current status and so that I can already marry my new man. Please advise me on how to do this.
    Idaho

    Dear Idaho,
    It appears from your narration that you intend to have your absent husband declared dead so you can remarry. To answer your query, it is important that we refer to what the law says on your situation.

    For purposes of marrying again in a situation where there is a belief that an absent spouse is dead, the law requires the living spouse to file a petition before the court for the declaration of presumptive death of the missing spouse. Aside from a well-founded belief that the absent spouse is already dead, the law also requires that this petition must allege that the absent spouse had been missing for four consecutive years. However, if the disappearance of a spouse is accompanied with a danger of death, like accidents or war, a period of two years is a sufficient ground for the declaration of presumptive death (Art. 41, Family Code of the Philippines in relation to Art. 391, Civil Code of the Philippines).

    Aside from the belief that the missing spouse is dead, it is also crucial to prove that the absent spouse is actually missing and that the present spouse has no information as to his whereabouts within the aforementioned period of his disappearance. It is necessary to prove this allegation to the court and to show that the petitioner actually made efforts in finding the missing spouse. According to the Supreme Court, the failure to conduct sufficient efforts in locating the whereabouts of the missing spouse is failure to comply with the requirements of the law which will result in the denial by the Court on the judicial petition for declaration of presumptive death of the missing spouse (Republic of the Philippines v. Gregorio Nolasco, 220 SCRA 20).

    Based on your situation, you mentioned that you were informed by the relatives of your husband that he went back to his province to live with his siblings. This detail belies your claim that you don’t know the whereabouts of your husband. And as mentioned above, you have to show that you made actual effort in finding your missing husband considering the available information on his whereabouts. Otherwise, you may not have your missing husband declared presumptively dead and remarry again for failure to comply with the requirements of the law.

    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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