Facts:
Respondent
Nilda was married to Dante on November 29, 1975 in Cordova, Cebu. The marriage
ceremony was solemnized by Municipal Judge Julian B. Pogoy of Cordova, Cebu.
Three days thereafter, or on December 2, 1975, Dante, a member of the Armed
Forces of the Philippines (AFP), left respondent, and went to Jolo, Sulu where
he was assigned. The couple had no children.
Since then,
Nilda heard no news from Dante. She tried everything to locate· him, but her
efforts proved futile. Thus, on April 14, 2009, she filed before the RTC a
petition to declare Dante as presumptively dead for the purpose of remarriage,
alleging that after the lapse of thirty-three (33) years without any kind of
communication from him, she firmly believes that he is already dead.
RTC granted
Nilda's petition. It found that Dante left the conjugal dwelling sometime in
1975 and from then on, Nilda never heard from him again despite diligent
efforts to locate him. In this light, she believes that he had passed away
especially since his last assignment was a combat mission. Moreover, the RTC
found that the absence of thirty-three (33) years was sufficient to give rise
to the presumption of death. CA affirmed the RTC Decision.
Issue: Whether Dante has been correctly declared as presumptively dead.
Ruling: No.
In this case,
Nilda testified that after Dante's disappearance, she tried to locate him by
making inquiries with his parents, relatives, and neighbors as to his
whereabouts, but unfortunately, they also did not know where to find him. Other
than making said inquiries, however, Nilda made no further efforts to find her
husband. She could have called or proceeded to the AFP headquarters to request
information about her husband, but failed to do so. She did not even seek the
help of the authorities or the AFP itself in finding him. She could have
inquired from the AFP on the status of the said mission, or from the members of
the AFP who were assigned thereto.
To the
Court's mind, therefore, Nilda failed to actively look for her missing husband,
and her purported earnest efforts to find him by asking Dante's parents,
relatives, and friends did not satisfy the strict standard and degree of
diligence required to create a "well-founded belief' of his death.
Furthermore,
Nilda did not present Dante's family, relatives, or neighbors as witnesses who
could have corroborated her asseverations that she earnestly looked for Dante.
These resource persons were not even named.
Finally,
other than Nilda's bare testimony, no other corroborative evidence had been
offered to support her allegation that she exerted efforts to find him but was
unsuccessful. What appears from the facts as. established in this case was that
Nilda simply allowed the passage of time without actively and diligently
searching for her husband, which the Court cannot accept as constituting a
"well-founded belief' that her husband is dead.
Whether or not the spouse present acted on a
well-founded belief of death of the absent spouse depends upon the inquiries to
be drawn from a great many circumstances occurring before and after the
disappearance of the absent spouse and the nature and extent of the inquiries
made by the present spouse.
Ratio:
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 (4) essential requisites for the
declaration of presumptive death:
1)
that the absent spouse has been
missing for four (4) consecutive years, or two (2) 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)
(4) that the present spouse files a
summary proceeding for the declaration of presumptive death of the absentee.
The burden of proof rests on the present
spouse to show that all the foregoing requisites under Article 41 of the Family
Code exist. He who alleges a fact has the burden of proving it and mere
allegation is not evidence.
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 passive one. As such, the mere absence of the spouse for such periods
prescribed under the law, lack of any news that such absentee spouse is still
alive, failure to communicate, or general presumption of absence under the
Civil Code would not suffice.
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