Dear Atty.,

My sister Ronna and her long-time boyfriend Luigi got married. Shortly after their wedding, Luigi asked Ronna’s permission to go to Manila to work. For the first three months, he constantly communicated with Ronna through cellphone. Thereafter, the communication between them ceased altogether. Ronna got information that Luigi was already cohabiting with another woman and would no longer be coming back out of shame. Ronna made several attempts to look for Luigi in various places. After almost 10 years of trying to know about the whereabouts of her husband from their relatives, she filed a Petition for Declaration of Presumptive Death. Could the petition for the Declaration of Presumptive Death be allowed in their case? Hope you can enlighten us in this matter.

Yna

Dear Yna,

The petition for Declaration of Presumptive death may be denied based on the facts you stated. Similar to the case of Republic v Quiñonez, G.R. 237412, 6 January 2020, the Supreme Court denied the Declaration of Presumptive Death and stated that the essential requisites for a declaration of presumptive death for the purpose of remarriage are as follows:

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.

To be able to comply with the requirement “well-founded belief” that the absentee is dead, the present spouse must prove that his/her belief was the result of diligent and reasonable efforts and inquiries 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 requires exertion of active effort (not a mere passive one). Its determination, so to speak, remains on a case-to-case basis.

Thus, mere absence of the spouse (even for such period required by the law), lack of any news that such absentee is still alive, failure to communicate or general presumption of absence under the Civil Code would not suffice. This conclusion proceeds from the premise that Article 41 of the Family Code places upon the present spouse the burden of proving the additional and more 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 importantly, that the absent spouse is still alive or is already dead.

As such, Ronna’s allegations that Luigi’s relatives admitted to her that she is now cohabiting with another man and will not be going home because of shame, only proves the likelihood that she does not want to be found. So there may be really no well-founded belief that Luigi is already dead. Thus, Ronna’s Petition to declare Luigi presumptively dead could be denied.

Hope this helps.

Atty. Joji Alonso