Snippets and Doctrines of Cases on Presumptive Death for Purposes of Remarriage Art. 41 Family Code

Judicial Declaration of Presumptive Death for Purposes of Remarriage

Antonia Armas [sister of 2^nd husband] vs. Marietta Calisterio – (2000)

- Respondent contracted 2^nd marriage with Teodoro Calisterio, without securing a court declaration that her 1^st husband, who had been absent and whose whereabouts had been unknown for 11 years, was presumptively dead. When Teodoro died, his sister Antonia claimed that she was the sole heir, considering that the marriage between Teodoro and respondent is void for being bigamous.

- As to the validity of a subsequent marriage solemnized under the Civil Code (based on Art. 83, CC)

1) VOID unless 1^st marriage was annulled or dissolved;

2) VALID if 1^st spouse was absent for 7 consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive; if the absentee, though he has been absent for less than 7 years, is generally considered as dead and believed to be so by the spouse present at the time of contracting such subsequent marriage; if the absentee is presumed dead according to articles 390 and 391. (“deemed valid until declared null and void by a competent court”)

- For the subsequent marriage referred to in the three exceptional cases therein provided, to be held valid, the spouse present so contracting the later marriage must have done so in good faith. Bad faith imports a dishonest purpose or some moral obliquity and conscious doing of wrong — it partakes of the nature of fraud, a breach of a known duty through some motive of interest or ill will. The Court does not find these circumstances to be here extant.

- A judicial declaration of absence of the absentee spouse is not necessary as long as the prescribed period of absence (7 years) is met. Respondent’s 2^nd marriage, having been contracted during the regime of the Civil Code, should thus be deemed valid notwithstanding the absence of a judicial declaration of presumptive death of the 1^st husband (James Bounds).

Republic vs Gregorio Nolasco [the seaman with British wife] – (1993)

- The requirement in Art. 41 of the FC, that the present spouse has a well-founded belief that the absent spouse is dead, was not satisfied. Nolasco’s efforts (searching for her whenever his ship docked in England; sending her letters which were all returned to him; and inquiring from their friends regarding her whereabouts, which all proved fruitless) to locate his wife was insufficient and too sketchy to form a reasonable or well-founded belief that she was already dead. They only proved that his wife chose not to communicate with their common acquaintances.

Angelita Valdez vs Republic – (2009)

- The requirement of “well-founded belief of absent spouse’s death” provided in Art. 41 of the FC does not apply to marriages solemnized under the Civil Code. Neither is a judicial declaration of presumptive death necessary before the present spouse can contract a subsequent marriage; because the FC cannot be given retroactive effect insofar as it will impair vested rights. In the present case, if the FC will be applied, it will ultimately result to the invalidation of petitioner’s subsequent marriage, which was valid at the time it was celebrated. What is only required under the CC is that (1) the former spouse had been absent for 7 consecutive years at the time of the second marriage, (2) that the spouse present does not know his or her former spouse to be living, (3) that such former spouse is generally reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.

- A judicial presumption of death, even if final and executory, would still be a prima facie presumption only. It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a competent court has to pass. Under the Civil Code, the presumption of death is established by law and no court declaration is needed for the presumption to arise. In the present case, death of the former husband was presumed to have taken place on the 7^th year of absence.

Republic vs Ferventino Tango – (2009)

- Appeal filed by the Republic is improper because under Art. 253 and 247 of the FC, actions filed under Art. 41 (for the declaration presumptive death) is a summary proceeding and the judgment therein shall be immediately final and executory. Thus, no appeal can be had. The remedy is a petition for certiorari.

- Such petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To be sure, even if the SC's original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an unrestricted freedom of choice of court forum.

Republic vs Gloria Bermudez-Lorino – (2005)

- An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is immediately final and executory.  The right to appeal is not a natural right nor is it a part of due process, for it is merely a statutory privilege.  Since, by express mandate of Article 247 of the Family Code, all judgments rendered in summary judicial proceedings in Family Law (which includes the present action for declaration for presumptive death) are “immediately final and executory”, the right to appeal was not granted to any of the parties therein.

- Difference between having the supposed appeal dismissed for lack of jurisdiction by virtue of the fact that the RTC decision sought to be appealed is immediately final and executory, and the denial of the appeal for lack of merit:  In the former, the supposed appellee can immediately ask for the issuance of an Entry of Judgment in the RTC, whereas, in the latter, the appellant can still raise the matter to the SC on petition for review and the RTC judgment cannot be executed until the SC makes the final pronouncement.

Republic vs Yolanda Granada – (2012)

- A petition for declaration of presumptive death of an absent spouse for the purpose of contracting a subsequent marriage under Article 41 of the Family Code is a summary proceeding as expressly provided by Art. 253 of the FC. Taken together, Articles 41, 238, 247 and 253 of the FC provide that since a petition for declaration of presumptive death is a summary proceeding, the judgment of the court therein shall be immediately final and executory. It is unappeallable and thus, the remedy is a petition for certiorari.

- Art. 41 of the Family Code imposes more stringent requirements than does Article 83 of the Civil Code. The Civil Code provision merely requires either that there be no news that the absentee is still alive; or that the absentee is generally considered to be dead and is believed to be so by the spouse present, or is presumed dead under Articles 390 and 391 of the Civil Code. In comparison, the Family Code provision prescribes a “well-founded belief” that the absentee is already dead before a petition for declaration of presumptive death can be granted.

- The law does not define what is meant by a well-grounded belief. Belief is a state of the mind or condition prompting the doing of an overt act. Nevertheless, the belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still alive or is already 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 present spouse.

Republic vs Maria Fe Cantor – (2013)

- Certiorari lies to challenge the decisions, judgments or final orders of trial courts in a summary proceeding for the declaration of presumptive death under the FC.

- Declaration of presumptive death under Art. 41 of the FC imposes a stricter standard than that of Art. 83 of the Civil Code. 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"

- The Strict Standard Approach is consistent with the State’s policy to protect and strengthen marriage. It is also for the benefit of the present spouse, to protect him/her from a criminal prosecution of bigamy. Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the present spouse's good faith in contracting a second marriage is effectively established. The decision of the competent court constitutes sufficient proof of his/her good faith and his/her criminal intent in case of remarriage is effectively negated.