I am an overseas Filipino worker, deployed in the Middle East since 1995. Sometime during that year, my sister informed me that my wife, Jana, left our house without any reason. My children were left in the custody of my sister. I immediately filed an emergency leave and went back to the Philippines in order to locate her. I went to the house of my parents-in-law to ask for the whereabouts of Jan but the same proved futile. Jana’s siblings and friends cannot also provide me any information about her. At present, I have a girlfriend whom I would like to marry; however, I know that my marriage with Jana will be a hindrance to my plan. Somebody told me to file a declaration of presumptive death, since Jana can no longer be located for almost 11 years now. Please guide me on this matter.
The rule governing declaration of presumptive death is found under Article 41 of the Family Code of the Philippines. The provision of law 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 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 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.”
The four essential requisites for the declaration of presumptive death were enumerated as follows by the Supreme Court in the case entitled, Republic of the Philippines vs. Cantor (G.R.No.184621, December 10, 2013; ponente, former Associate Justice Arturo Brion):
“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.”
In the case entitled Republic of the Philippines vs. Orcelino-Villanueva (G.R. 210929, July 29, 2015; ponente, Associate Justice Marvic Leonen), the Supreme Court ruled:
“The well-founded belief in the absentee’s death requires the present spouse to prove that his/her belief was the result of diligent and reasonable efforts 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 necessitates exertion of active effort (not a mere passive one). Mere absence of the spouse (even beyond the period required by law), lack of any news that the absentee spouse is still alive, mere failure to communicate or general presumption of absence under the Civil Code would not suffice. The premise is that Article 41 of the Family Code places upon the present spouse the burden of complying with the 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 spouse’s whereabouts but, more important, whether the absent spouse is still alive or is already dead.”
Applying this decision in your situation, the petition for declaration of presumptive death, which you intend to file, will not prosper because you do not have a well-founded belief that Jana was already dead and you did not exert the diligence required to locate the whereabouts of your wife.
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 firstname.lastname@example.org.