Dear Atty. Angela,

I am married to wife Cassandra way back in 2005. After we lived together for three years, I had to work in London as a caregiver and my wife worked in Hong Kong as a domestic helper.

After a year apart, I have not heard from her at all and I do not know anymore about her whereabouts. I even tried contacting her parents and relatives to no avail.

Until today, there is no news about her and if she is still alive. I have a live-in partner whom I would want to marry. I plan to file a declaration of presumptive death of my wife in the court.

Will this be recognized?

Tony

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Dear Tony,

Article 41 of the Family Code of the Philippines provides that if a spouse has been absent for four consecutive years and the present spouse has a well-founded belief that the absent spouse was already dead, he or she can file a summary proceeding to have the absent spouse declared presumptively dead in order to remarry.

The period of four years is shortened to two years if the absent spouse was on board a vessel lost during a sea voyage or an airplane which is missing, or a member of the armed forces taking part in a war or in danger of death under similar circumstances. This must be filed in Court and the spouse should obtain an official declaration of the presumed death of the spouse.

However, in the case of Republic v Sareñogon Jr., G.R. 199194 (10 February 2016), the Supreme Court stressed that the degree of diligence and reasonable search required by law is not met (1) when there is failure to present the persons from whom the present spouse allegedly made inquiries especially the absent spouse's relatives, neighbors, and friends, (2) when there is failure to report the missing spouse's purported disappearance or death to the police or mass media, and (3) when the present spouse's evidence might or would only show that the absent spouse chose not to communicate, but not necessarily that the latter was indeed dead.