On Presumptive Death

Like the sword of Damocles, one of the many cases hovering in the sphere of jurisdiction of the Family Court is the so-called petition for the declaration of presumptive death of a person based on Article 41 of the Family Code of the Philippines. This is usually resorted to by the present spouse for the purpose of contracting a subsequent marriage, while the previous marriage is still in existence, without fear of committing the crime of bigamy, or the subsequent marriage decreed as null and void for being bigamous.

It is a mandatory requirement which has been incorporated into the Family Code to discourage subsequent marriages where it is not proven that the missing spouse is factually or presumptively dead.# For it is doctrinally entrenched that a subsequent marriage without the judicial declaration of presumptive death of the absent spouse is void ab initio.

Like a beacon on a stormy night, jurisprudence had laid down four (4) requisites for the declaration of presumptive death of the absentee under said Article 41 of the Family Code of the Philippines.

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 of the Civil Code of the Philippines;
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 concept of a judge pronouncing sentence upon a felon, it has been judicially affirmed that it is the present spouse who is burdened to prove that the absentee has been absent and has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent marriage. This belief must be the result of proper and honest-to-goodness inquiries and efforts to ascertain the whereabouts of the absent spouse.# It is to be noted that many cases of this nature have been dismissed for the failure of the petitioner to prove “that the present spouse has a well-founded belief that the absentee is dead.”

These requirements, however, apply only when the subject marriage was solemnized under the auspices of the Family Code of the Philippines, with its enactment on August 3, 1988.# It is understood, however, that for those marriages celebrated under the influence of the Civil Code of the Philippines, no such judicial declaration of the absent spouse is authorized for the simple reason that such a presumption is already established by law. It goes without saying that if it is the Civil Code that would apply on account that the marriage was solemnized before the effectivity of the Family Code, then proof of “well-founded belief” is no longer required.

In the final analysis, like sands through the hourglass, for the purpose of contracting a subsequent civil wedding because the first spouse has been absent for seven consecutive years in a marriage officiated by the authority of the Civil Code, it is not necessary to have the former spouse judicially declared an absentee since death is presumed by operation of law to have taken place by the seventh year of absence. It is safe to conclude under the prevailing circumstances, that the subsequent or second marriage is legal and valid, since at that time, it was contracted without any legal impediment.
By Judge Globert J. Justalero