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THIRD DIVISION

SOCIAL SECURITY SYSTEM, G.R. No. 165545


Petitioner,
Present:

QUISUMBING, Chairperson,*
-versus- CARPIO, Acting Chairperson,
CARPIO MORALES, and
TINGA, JJ.

TERESITA JARQUE VDA. DE BAILON,


Respondent. Promulgated:

March 24, 2006


x----------------------------------------------x

DECISION

CARPIO MORALES, J.:

The Court of Appeals Decision[1] dated June 23, 2004[2] and Resolution dated September 28, 2004[3] reversing
the Resolution dated April 2, 2003[4] and Order dated June 4, 2003[5] of the Social Security Commission (SSC) in SSC
Case No. 4-15149-01 are challenged in the present petition for review on certiorari.

On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted marriage in Barcelona,
Sorsogon.[6]

More than 15 years later or on October 9, 1970, Bailon filed before the then Court of First Instance (CFI) of
Sorsogon a petition[7] to declare Alice presumptively dead.

By Order of December 10, 1970,[8] the CFI granted the petition, disposing as follows:

WHEREFORE, there being no opposition filed against the petition notwithstanding the
publication of the Notice of Hearing in a newspaper of general circulation in the country, Alice
Diaz is hereby declared to [sic] all legal intents and purposes, except for those of
succession, presumptively dead.

SO ORDERED.[9] (Underscoring supplied)

Close to 13 years after his wife Alice was declared presumptively dead or on August 8, 1983, Bailon
contracted marriage with Teresita Jarque (respondent) in Casiguran, Sorsogon.[10]

On January 30, 1998, Bailon, who was a member of the Social Security System (SSS) since 1960 and a retiree
pensioner thereof effective July 1994, died. [11]

Respondent thereupon filed a claim for funeral benefits, and was granted P12,000[12] by the SSS.

Respondent filed on March 11, 1998 an additional claim for death benefits[13] which was also granted by the
SSS on April 6, 1998.[14]

Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one Elisa Jayona (Elisa) contested
before the SSS the release to respondent of the death and funeral benefits. She claimed that Bailon contracted three
marriages in his lifetime, the first with Alice, the second with her mother Elisa, and the third with respondent, all
of whom are still alive; she, together with her siblings, paid for Bailons medical and funeral expenses; and all the
documents submitted by respondent to the SSS in support of her claims are spurious.

In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma) submitted an Affidavit dated
February 13, 1999[15] averring that they are two of nine children of Bailon and Elisa who cohabited as husband and
wife as early as 1958; and they were reserving their right to file the necessary court action to contest the marriage
between Bailon and respondent as they personally know that Alice is still very much alive.[16]

1
In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the brother and guardian of Aliz
P. Diaz, filed before the SSS a claim for death benefits accruing from Bailons death, [17] he further attesting in a sworn
statement[18] that it was Norma who defrayed Bailons funeral expenses.

Elisa and seven of her children[19] subsequently filed claims for death benefits as Bailons beneficiaries before
the SSS.[20]

Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga City recommended the
cancellation of payment of death pension benefits to respondent and the issuance of an order for the refund of the
amount paid to her from February 1998 to May 1999 representing such benefits; the denial of the claim of Alice on
the ground that she was not dependent upon Bailon for support during his lifetime; and the payment of the balance
of the five-year guaranteed pension to Bailons beneficiaries according to the order of preference provided under
the law, after the amount erroneously paid to respondent has been collected. The pertinent portions of the
Memorandum read:

1. Aliz [sic] Diaz never disappeared. The court must have been misled by
misrepresentation in declaring the first wife, Aliz [sic] Diaz, as presumptively dead.

xxxx

x x x the Order of the court in the Petition to Declare Alice Diaz Presumptively Dead, did
not become final. The presence of Aliz [sic] Diaz, is contrary proof that rendered it invalid.
xxxx

3. It was the deceased member who abandoned his wife, Aliz [sic] Diaz. He, being in bad
faith, and is the deserting spouse, his remarriage is void, being bigamous.

xxxx

In this case, it is the deceased member who was the deserting spouse and who remarried,
thus his marriage to Teresita Jarque, for the second time was void as it was bigamous. To require
affidavit of reappearance to terminate the second marriage is not necessary as there is no
disappearance of Aliz [sic] Diaz, the first wife, and a voidable marriage [sic], to speak
of.[21](Underscoring supplied)

In the meantime, the SSS Sorsogon Branch, by letter of August 16, 2000,[22] advised respondent that as
Cecilia and Norma were the ones who defrayed Bailons funeral expenses, she should return the P12,000 paid to
her.

In a separate letter dated September 7, 1999,[23] the SSS advised respondent of the cancellation of her
monthly pension for death benefits in view of the opinion rendered by its legal department that her marriage with
Bailon was void as it was contracted while the latters marriage with Alice was still subsisting; and the December
10, 1970 CFI Order declaring Alice presumptively dead did not become final, her presence being contrary proof
against the validity of the order. It thus requested respondent to return the amount of P24,000 representing the total
amount of monthly pension she had received from the SSS from February 1998 to May 1999.

Respondent protested the cancellation of her monthly pension for death benefits by letter to the SSS
dated October 12, 1999.[24] In a subsequent letter dated November 27, 1999 [25] to the SSC, she reiterated her request
for the release of her monthly pension, asserting that her marriage with Bailon was not declared before any court
of justice as bigamous or unlawful, hence, it remained valid and subsisting for all legal intents and purposes as in
fact Bailon designated her as his beneficiary.

The SSS, however, by letter to respondent dated January 21, 2000,[26] maintained the denial of her claim for
and the discontinuance of payment of monthly pension. It advised her, however, that she was not deprived of her
right to file a petition with the SSC.

Respondent thus filed a petition[27] against the SSS before the SSC for the restoration to her of her
entitlement to monthly pension.

In the meantime, respondent informed the SSS that she was returning, under protest, the amount of P12,000
representing the funeral benefits she received, she alleging that Norma and her siblings forcibly and coercively
prevented her from spending any amount during Bailons wake. [28]

2
After the SSS filed its Answer[29] to respondents petition, and the parties filed their respective Position
Papers, one Alicia P. Diaz filed an Affidavit [30] dated August 14, 2002 with the SSS Naga Branch attesting that she
is the widow of Bailon; she had only recently come to know of the petition filed by Bailon to declare her
presumptively dead; it is not true that she disappeared as Bailon could have easily located her, she having stayed
at her parents residence in Barcelona, Sorsogon after she found out that Bailon was having an extramarital
affair; and Bailon used to visit her even after their separation.

By Resolution of April 2, 2003, the SSC found that the marriage of respondent to Bailon was void and,
therefore, she was just a common-law-wife. Accordingly it disposed as follows, quoted verbatim:

WHEREFORE, this Commission finds, and so holds, that petitioner Teresita Jarque-Bailon
is not the legitimate spouse and primary beneficiary of SSS member Clemente Bailon.

Accordingly, the petitioner is hereby ordered to refund to the SSS the amount of P24,000.00
representing the death benefit she received therefrom for the period February 1998 until May 1999
as well as P12,000.00 representing the funeral benefit.

The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the appropriate death
benefit arising from the demise of SSS member Clemente Bailon in accordance with Section 8(e)
and (k) as well as Section 13 of the SS Law, as amended, and its prevailing rules and regulations
and to inform this Commission of its compliance herewith.

SO ORDERED.[31] (Underscoring supplied)

In so ruling against respondent, the SSC ratiocinated.

After a thorough examination of the evidence at hand, this Commission comes to the
inevitable conclusion that the petitioner is not the legitimate wife of the deceased member.

xxxx

There is x x x ample evidence pointing to the fact that, contrary to the declaration of the
then CFI of Sorsogon (10th Judicial District), the first wife never disappeared as the deceased
member represented in bad faith. This Commission accords credence to the findings of the SSS
contained in its Memorandum dated August 9, 1999,[32] revealing that Alice (a.k.a. Aliz) Diaz never
left Barcelona, Sorsogon, after her separation from Clemente Bailon x x x.
As the declaration of presumptive death was extracted by the deceased member using
artifice and by exerting fraud upon the unsuspecting court of law, x x x it never had the effect of
giving the deceased member the right to marry anew. x x x [I]t is clear that the marriage to the
petitioner is void, considering that the first marriage on April 25, 1955 to Alice Diaz was not
previously annulled, invalidated or otherwise dissolved during the lifetime of the parties
thereto. x x x as determined through the investigation conducted by the SSS, Clemente Bailon was
the abandoning spouse, not Alice Diaz Bailon.

xxxx

It having been established, by substantial evidence, that the petitioner was just a common-
law wife of the deceased member, it necessarily follows that she is not entitled as a primary
beneficiary, to the latters death benefit. x x x

xxxx

It having been determined that Teresita Jarque was not the legitimate surviving spouse
and primary beneficiary of Clemente Bailon, it behooves her to refund the total amount of death
benefit she received from the SSS for the period from February 1998 until May 1999 pursuant to
the principle of solutio indebiti x x x

Likewise, it appearing that she was not the one who actually defrayed the cost of the wake
and burial of Clemente Bailon, she must return the amount of P12,000.00 which was earlier given
to her by the SSS as funeral benefit.[33] (Underscoring supplied)

3
Respondents Motion for Reconsideration[34] having been denied by Order of June 4, 2003, she filed a
petition for review[35] before the Court of Appeals (CA).

By Decision of June 23, 2004, the CA reversed and set aside the April 2, 2003 Resolution and June 4,
2003 Order of the SSC and thus ordered the SSS to pay respondent all the pension benefits due her. Held the CA:

x x x [T]he paramount concern in this case transcends the issue of whether or not the
decision of the then CFI, now RTC, declaring Alice Diaz presumptively dead has attained finality
but, more importantly, whether or not the respondents SSS and Commission can validly re-
evaluate the findings of the RTC, and on its own, declare the latters decision to be bereft of any
basis.On similar import, can respondents SSS and Commission validly declare the first marriage
subsisting and the second marriage null and void?

xxxx

x x x while it is true that a judgment declaring a person presumptively dead never attains
finality as the finding that the person is unheard of in seven years is merely a presumption juris
tantum, the second marriage contracted by a person with an absent spouse endures until
annulled. It is only the competent court that can nullify the second marriage pursuant to Article
87 of the Civil Code and upon the reappearance of the missing spouse, which action for annulment
may be filed. Nowhere does the law contemplates [sic] the possibility that respondent SSS may
validly declare the second marriage null and void on the basis alone of its own investigation and
declare that the decision of the RTC declaring one to be presumptively dead is without basis.

Respondent SSS cannot arrogate upon itself the authority to review the decision of the
regular courts under the pretext of determining the actual and lawful beneficiaries of its
members. Notwithstanding its opinion as to the soundness of the findings of the RTC, it should
extend due credence to the decision of the RTC absent of [sic] any judicial pronouncement to the
contrary. x x x

x x x [A]ssuming arguendo that respondent SSS actually possesses the authority to declare
the decision of the RTC to be without basis, the procedure it followed was offensive to the principle
of fair play and thus its findings are of doubtful quality considering that petitioner Teresita was
not given ample opportunity to present evidence for and her behalf.

xxxx

Respondent SSS is correct in stating that the filing of an Affidavit of Reappearance with
the Civil Registry is no longer practical under the premises. Indeed, there is no more first marriage
to restore as the marital bond between Alice Diaz and Clemente Bailon was already terminated
upon the latters death. Neither is there a second marriage to terminate because the second
marriage was likewise dissolved by the death of Clemente Bailon.

However, it is not correct to conclude that simply because the filing of the Affidavit of
Reappearance with the Civil Registry where parties to the subsequent marriage reside is already
inutile, the respondent SSS has now the authority to review the decision of the RTC and
consequently declare the second marriage null and void.[36] (Emphasis and underscoring supplied)

The SSC and the SSS separately filed their Motions for Reconsideration[37] which were both denied for lack
of merit.

Hence, the SSS present petition for review on certiorari[38] anchored on the following grounds:

THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO LAW.

II

THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AMOUNTING


TO LACK OF JURISDICTION.[39]

4
The SSS faults the CA for failing to give due consideration to the findings of facts of the SSC on the prior
and subsisting marriage between Bailon and Alice; in disregarding the authority of the SSC to determine to whom,
between Alice and respondent, the death benefits should be awarded pursuant to Section 5[40] of the Social Security
Law; and in declaring that the SSS did not give respondent due process or ample opportunity to present evidence
in her behalf.

The SSS submits that the observations and findings relative to the CFI proceedings are of no moment to the
present controversy, as the same may be considered only as obiter dicta in view of the SSCs finding of the existence
of a prior and subsisting marriage between Bailon and Alice by virtue of which Alice has a better right to the death
benefits.[41]

The petition fails.

That the SSC is empowered to settle any dispute with respect to SSS coverage, benefits and contributions,
there is no doubt. In so exercising such power, however, it cannot review, much less reverse, decisions rendered by
courts of law as it did in the case at bar when it declared that the December 10, 1970 CFI Order was obtained through
fraud and subsequently disregarded the same, making its own findings with respect to the validity of Bailon and
Alices marriage on the one hand and the invalidity of Bailon and respondents marriage on the other.

In interfering with and passing upon the CFI Order, the SSC virtually acted as an appellate court. The law
does not give the SSC unfettered discretion to trifle with orders of regular courts in the exercise of its authority to
determine the beneficiaries of the SSS.

The two marriages involved herein having been solemnized prior to the effectivity on August 3, 1988 of the
Family Code, the applicable law to determine their validity is the Civil Code which was the law in effect at the time
of their celebration.[42]

Article 83 of the Civil Code[43] provides:

Art. 83. Any marriage subsequently contracted by any person during the lifetime of the
first spouse of such person with any person other than such first spouse shall be illegal and void
from its performance, unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years at the time of the second
marriage without the spouse present having news of the absentee being alive, or if the absentee,
though he has been absent for less than seven years, is generally considered as dead and believed
to be so by the spouse present at the time of contracting such subsequent marriage, or if the
absentee is presumed dead according to Articles 390 and 391. The marriage so contracted shall be
valid in any of the three cases until declared null and void by a competent court. (Emphasis and
underscoring supplied)

Under the foregoing provision of the Civil Code, a subsequent marriage contracted during the lifetime of
the first spouse is illegal and void ab initio unless the prior marriage is first annulled or dissolved or contracted
under any of the three exceptional circumstances. It bears noting that the marriage under any of these exceptional
cases is deemed valid until declared null and void by a competent court. It follows that the onus probandi in these
cases rests on the party assailing the second marriage.[44]

In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive years [45] when Bailon
sought the declaration of her presumptive death, which judicial declaration was not even a requirement then for
purposes of remarriage.[46]

Eminent jurist Arturo M. Tolentino (now deceased) commented:

Where a person has entered into two successive marriages, a presumption arises in favor of
the validity of the second marriage, and the burden is on the party attacking the validity of the
second marriage to prove that the first marriage had not been dissolved; it is not enough to prove
the first marriage, for it must also be shown that it had not ended when the second marriage was
contracted. The presumption in favor of the innocence of the defendant from crime or wrong and of

5
the legality of his second marriage, will prevail over the presumption of the continuance of life of
the first spouse or of the continuance of the marital relation with such first spouse.[47] (Underscoring
supplied)

Under the Civil Code, a subsequent marriage being voidable,[48] it is terminated by final judgment of
annulment in a case instituted by the absent spouse who reappears or by either of the spouses in the subsequent
marriage.

Under the Family Code, no judicial proceeding to annul a subsequent marriage is necessary. Thus Article
42 thereof provides:

Art. 42. The subsequent marriage referred to in the preceding Article shall be automatically
terminated by the recording of the affidavit of reappearance of the absent spouse, unless there is
a judgment annulling the previous marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the
civil registry of the residence of the parties to the subsequent marriage at the instance of any
interested person, with due notice to the spouses of the subsequent marriage and without
prejudice to the fact of reappearance being judicially determined in case such fact is disputed.
(Emphasis and underscoring supplied)

The termination of the subsequent marriage by affidavit provided by the above-quoted provision of the
Family Code does not preclude the filing of an action in court to prove the reappearance of the absentee and obtain
a declaration of dissolution or termination of the subsequent marriage. [49]

If the absentee reappears, but no step is taken to terminate the subsequent marriage, either by affidavit or
by court action, such absentees mere reappearance, even if made known to the spouses in the subsequent marriage,
will not terminate such marriage.[50] Since the second marriage has been contracted because of a presumption that
the former spouse is dead, such presumption continues inspite of the spouses physical reappearance, and
by fiction of law, he or she must still be regarded as legally an absentee until the subsequent marriage is terminated
as provided by law.[51]

If the subsequent marriage is not terminated by registration of an affidavit of reappearance or by judicial


declaration but by death of either spouse as in the case at bar, Tolentino submits:

x x x [G]enerally if a subsequent marriage is dissolved by the death of either spouse, the


effects of dissolution of valid marriages shall arise. The good or bad faith of either spouse can no
longer be raised, because, as in annullable or voidable marriages, the marriage cannot be
questioned except in a direct action for annulment.[52] (Underscoring supplied)

Similarly, Lapuz v. Eufemio[53] instructs:

In fact, even if the bigamous marriage had not been void ab initio but only voidable under
Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted with
the first wife having been an absentee for seven consecutive years, or when she had been generally
believed dead, still the action for annulment became extinguished as soon as one of the three
persons involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the
action for annulment should be brought during the lifetime of any one of the parties
involved. And furthermore, the liquidation of any conjugal partnership that might have resulted
from such voidable marriage must be carried out in the testate or intestate proceedings of the
deceased spouse, as expressly provided in Section 2 of the Revised Rule 73, and not in the
annulment proceeding.[54] (Emphasis and underscoring supplied)

It bears reiterating that a voidable marriage cannot be assailed collaterally except in a direct
proceeding. Consequently, such marriages can be assailed only during the lifetime of the parties and not after the
death of either, in which case the parties and their offspring will be left as if the marriage had been perfectly
valid.[55] Upon the death of either, the marriage cannot be impeached, and is made good ab initio.[56]

6
In the case at bar, as no step was taken to nullify, in accordance with law, Bailons and respondents marriage
prior to the formers death in 1998, respondent is rightfully the dependent spouse-beneficiary of Bailon.

In light of the foregoing discussions, consideration of the other issues raised has been rendered unnecessary.

WHEREFORE, the petition is DENIED.

No costs.

SO ORDERED.

7
8
SECOND DIVISION

G.R. No. 187061, October 08, 2014

CELERINA J. SANTOS, Petitioner, v. RICARDO T. SANTOS, Respondent.

DECISION

LEONEN, J.:

The proper remedy for a judicial declaration of presumptive death obtained by extrinsic fraud is an action to
annul the judgment. An affidavit of reappearance is not the proper remedy when the person declared
presumptively dead has never been absent.

This is a petition for review on certiorari filed by Celerina J. Santos, assailing the Court of Appeals' resolutions
dated November 28, 2008 and March 5, 2009. The Court of Appeals dismissed the petition for the annulment of
the trial court's judgment declaring her presumptively dead.

On July 27, 2007, the Regional Trial Court of Tarlac City declared petitioner Celerina J. Santos (Celerina)
presumptively dead after her husband, respondent Ricardo T. Santos (Ricardo), had filed a petition for
declaration of absence or presumptive death for the purpose of remarriage on June 15, 2007.1 Ricardo remarried
on September 17, 2008.2chanrobleslaw

In his petition for declaration of absence or presumptive death, Ricardo alleged that he and Celerina rented an
apartment somewhere in San Juan, Metro Manila; after they had gotten married on June 18, 1980. 3 After a year,
they moved to Tarlac City. They were engaged in the buy and sell business. 4chanrobleslaw

Ricardo claimed that their business did not prosper.5 As a result, Celerina convinced him to allow her to work as
a domestic helper in Hong Kong.6 Ricardo initially refused but because of Celerina's insistence, he allowed her to
work abroad.7 She allegedly applied in an employment agency in Ermita, Manila, in February 1995. She left Tarlac
two months after and was never heard from again. 8chanrobleslaw

Ricardo further alleged that he exerted efforts to locate Celerina. 9 He went to Celerina's parents in Cubao, Quezon
City, but they, too, did not know their daughter's whereabouts. 10 He also inquired about her from other relatives
and friends, but no one gave him any information. 11chanrobleslaw

Ricardo claimed that it was almost 12 years from the date of his Regional Trial Court petition since Celerina
left. He believed that she had passed away.12chanrobleslaw

Celerina claimed that she learned about Ricardo's petition only sometime in October 2008 when she could no
longer avail the remedies of new trial, appeal, petition for relief, or other appropriate remedies. 13chanrobleslaw

On November 17, 2008, Celerina filed a petition for annulment of judgment 14 before the Court of Appeals on the
grounds of extrinsic fraud and lack of jurisdiction. She argued that she was deprived her day in court when
Ricardo, despite his knowledge of her true residence, misrepresented to the court that she was a resident of Tarlac
City.15 According to Celerina, her true residence was in Neptune Extension, Congressional Avenue, Quezon
City.16 This residence had been her and Ricardo's conjugal dwelling since 1989 until Ricardo left in May 2008.17 As
a result of Ricardo's misrepresentation, she was deprived of any notice of and opportunity to oppose the petition
declaring her presumptively dead.18chanrobleslaw

Celerina claimed that she never resided in Tarlac. She also never left and worked as a domestic helper
abroad.20 Neither did she go to an employment agency in February 1995. 21 She also claimed that it was not true
that she had been absent for 12 years. Ricardo was aware that she never left their conjugal dwelling in Quezon
City.22 It was he who left the conjugal dwelling in May 2008 to cohabit with another woman. 23 Celerina referred to
a joint affidavit executed by their children to support her contention that Ricardo made false allegations in his
petition.24chanrobleslaw

Celerina also argued that the court did not acquire jurisdiction over Ricardo's petition because it had never been
published in a newspaper.25 She added that the Office of the Solicitor General and the Provincial Prosecutor's
Office were not furnished copies of Ricardo's petition.26chanrobleslaw

The Court of Appeals issued the resolution dated November 28, 2008, dismissing Celerina's petition for
annulment of judgment for being a wrong mode of remedy.27 According to the Court of Appeals, the proper

9
remedy was to file a sworn statement before the civil registry, declaring her reappearance in accordance with
Article 42 of the Family Code.28chanrobleslaw

Celerina filed a motion for reconsideration of the Court of Appeals' resolution dated November 28, 2008. 29 The
Court of Appeals denied the motion for reconsideration in the resolution dated March 5, 2009. 30chanrobleslaw

Hence, this petition was filed.

The issue for resolution is whether the Court of Appeals erred in dismissing Celerina's petition for annulment of
judgment for being a wrong remedy for a fraudulently obtained judgment declaring presumptive death.

Celerina argued that filing an affidavit of reappearance under Article 42 of the Family Code is appropriate only
when the spouse is actually absent and the spouse seeking the declaration of presumptive death actually has a
well-founded belief of the spouse's death.31 She added that it would be inappropriate to file an affidavit of
reappearance if she did not disappear in the first place. 32 She insisted that an action for annulment of judgment is
proper when the declaration of presumptive death is obtained fraudulently. 33chanrobleslaw

Celerina further argued that filing an affidavit of reappearance under Article 42 of the Family Code would not be
a sufficient remedy because it would not nullify the legal effects of the judgment declaring her presumptive
death.34chanrobleslaw

In Ricardo's comment,35 he argued that a petition for annulment of judgment is not the proper remedy because it
cannot be availed when there are other remedies available. Celerina could always file an affidavit of reappearance
to terminate the subsequent marriage. Ricardo iterated the Court of Appeals' ruling that the remedy afforded to
Celerina under Article 42 of the Family Code is the appropriate remedy.

The petition is meritorious.

Annulment of judgment is the remedy when the Regional Trial Court's judgment, order, or resolution has become
final, and the "remedies of new trial, appeal, petition for relief (or other appropriate remedies) are no longer
available through no fault of the petitioner."36chanrobleslaw

The grounds for annulment of judgment are extrinsic fraud and lack of jurisdiction. 37 This court defined extrinsic
fraud in Stilianopulos v. City of Legaspi:38chanrobleslaw

For fraud to become a basis for annulment of judgment, it has to be extrinsic or actual. It is intrinsic when the
fraudulent acts pertain to an issue involved in the original action or where the acts constituting the fraud were or
could have been litigated, It is extrinsic or collateral when a litigant commits acts outside of the trial which prevents a
parly from having a real contest, or from presenting all of his case, such that there is no fair submission of the
controversy.39 (Emphasis supplied)

Celerina alleged in her petition for annulment of judgment that there was fraud when Ricardo deliberately made
false allegations in the court with respect to her residence. 40 Ricardo also falsely claimed that she was absent for
12 years. There was also no publication of the notice of hearing of Ricardo's petition in a newspaper of general
circulation.41 Celerina claimed that because of these, she was deprived of notice and opportunity to oppose
Ricardo's petition to declare her presumptively dead.42chanrobleslaw

Celerina alleged that all the facts supporting Ricardo's petition for declaration of presumptive death were
false.43 Celerina further claimed that the court did not acquire jurisdiction because the Office of the Solicitor
General and the Provincial Prosecutor's Office were not given copies of Ricardo's petition. 44chanrobleslaw

These are allegations of extrinsic fraud and lack of jurisdiction. Celerina alleged in her petition with the Court of
Appeals sufficient ground/s for annulment of judgment.

Celerina filed her petition for annulment of judgment45 on November 17, 2008. This was less than two years from
the July 27, 2007 decision declaring her presumptively dead and about a month from her discovery of the decision
in October 2008. The petition was, therefore, filed within the four-year period allowed by law in case of extrinsic
fraud, and before the action is barred by laches, which is the period allowed in case of lack of
jurisdiction.46chanrobleslaw

There was also no other sufficient remedy available to Celerina at the time of her discovery of the fraud
perpetrated on her.

10
The choice of remedy is important because remedies carry with them certain admissions, presumptions, and
conditions.

The Family Code provides that it is the proof of absence of a spouse for four consecutive years, coupled with a
well-founded belief by the present spouse that the absent spouse is already dead, that constitutes a justification
for a second marriage during the subsistence of another marriage.47chanrobleslaw

The Family Code also provides that the second marriage is in danger of being terminated by the presumptively
dead spouse when he or she reappears. Thus:chanRoblesvirtualLawlibrary

Article 42. The subsequent marriage referred to in the preceding Article shall be automatically terminated by the
recording of the affidavit of reappearance of the absent spouse, unless there is a judgment annulling the previous
marriage or declaring it void ab initio.

A sworn statement of the fact and circumstances of reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the instance of any interested person, with due notice to the
spouses of the subsequent marriage and without prejudice to the fact of reappearance being judicially determined in
case such fact is disputed. (Emphasis supplied)

In other words, the Family Code provides the presumptively dead spouse with the remedy of terminating the
subsequent marriage by mere reappearance.

The filing of an affidavit of reappearance is an admission on the part of the first spouse that his or her marriage to
the present spouse was terminated when he or she was declared absent or presumptively dead.

Moreover, a close reading of the entire Article 42 reveals that the termination of the subsequent marriage by
reappearance is subject to several conditions: (1) the non-existence of a judgment annulling the previous marriage
or declaring it void ab initio; (2) recording in the civil registry of the residence of the parties to the subsequent
marriage of the sworn statement of fact and circumstances of reappearance; (3) due notice to the spouses of the
subsequent marriage of the fact of reappearance; and (4) the fact of reappearance must either be undisputed or
judicially determined.

The existence of these conditions means that reappearance does not always immediately cause the subsequent
marriage's termination. Reappearance of the absent or presumptively dead spouse will cause the termination of
the subsequent marriage only when all the conditions enumerated in the Family Code are present.

Hence, the subsequent marriage may still subsist despite the absent or presumptively dead spouse's reappearance
(1) if the first marriage has already been annulled or has been declared a nullity; (2) if the sworn statement of the
reappearance is not recorded in the civil registry of the subsequent spouses' residence; (3) if there is no notice to
the subsequent spouses; or (4) if the fact of reappearance is disputed in the proper courts of law, and no judgment
is yet rendered confirming, such fact of reappearance.

When subsequent marriages are contracted after a judicial declaration of presumptive death, a presumption
arises that the first spouse is already dead and that the second marriage is legal. This presumption should prevail
over the continuance of the marital relations with the first spouse. 48 The second marriage, as with all marriages, is
presumed valid.49 The burden of proof to show that the first marriage was not properly dissolved rests on the
person assailing the validity of the second marriage. 50chanrobleslaw

This court recognized the conditional nature of reappearance as a cause for terminating the subsequent marriage
in Social Security System v. Vda. de Bailon.51 This court noted52 that mere reappearance will not terminate the
subsequent marriage even if the parties to the subsequent marriage were notified if there was "no step . . . taken to
terminate the subsequent marriage, either by [filing an] affidavit [of reappearance] or by court action[.]" 53 "Since
the second marriage has been contracted because of a presumption that the former spouse is dead, such
presumption continues inspite of the spouse's physical reappearance, and by fiction of law, he or she must still be
regarded as legally an absentee until the subsequent marriage is terminated as provided by law."54chanrobleslaw

The choice of the proper remedy is also important for purposes of determining the status of the second marriage
and the liabilities of the spouse who, in bad faith, claimed that the other spouse was absent.

A second marriage is bigamous while the first subsists. However, a bigamous subsequent marriage may be
considered valid when the following are present:chanRoblesvirtualLawlibrary

1) The prior spouse had been absent for four consecutive years;

11
2) The spouse present has a well-founded belief that the absent spouse was already dead;
3) There must be a summary proceeding for the declaration of presumptive death of the absent spouse; and
4) There is a court declaration of presumptive death of the absent spouse. 55

A subsequent marriage contracted in bad faith, even if it was contracted after a court declaration of presumptive
death, lacks the requirement of a well-founded belief56 that the spouse is already dead. The first marriage will not
be considered as. validly terminated. Marriages contracted prior to the valid termination of a subsisting marriage
are generally considered bigamous and void.57 Only a subsequent marriage contracted in good faith is protected
by law.

Therefore, the party who contracted the subsequent marriage in bad faith is also not immune from an action to
declare his subsequent marriage void for being bigamous. The prohibition against marriage during the
subsistence of another marriage still applies.58chanrobleslaw

If, as Celerina contends, Ricardo was in bad faith when he filed his petition to declare her presumptively dead
and when he contracted the subsequent marriage, such marriage would be considered void for being bigamous
under Article 35(4) of the Family Code. This is because the circumstances lack the element of "well-founded belief
under Article 41 of the Family Code, which is essential for the exception to the rule against bigamous marriages to
apply.59chanrobleslaw

The provision on reappearance in the Family Code as a remedy to effect the termination of the subsequent
marriage does not preclude the spouse who was declared presumptively dead from availing other remedies
existing in law. This court had, in fact, recognized that a subsequent marriage may also be terminated by filing
"an action in court to prove the reappearance of the absentee and obtain a declaration of dissolution or
termination of the subsequent marriage."60chanrobleslaw

Celerina does not admit to have been absent. She also seeks not merely the termination of the subsequent
marriage but also the nullification of its effects. She contends that reappearance is not a sufficient remedy because
it will only terminate the subsequent marriage but not nullify the effects of the declaration of her presumptive
death and the subsequent marriage.

Celerina is correct. Since an undisturbed subsequent marriage under Article 42 of the Family Code is valid until
terminated, the "children of such marriage shall be considered legitimate, and the property relations of the
spouse[s] in such marriage will be the same as in valid marriages." 61 If it is terminated by mere reappearance, the
children of the subsequent marriage conceived before the termination shall still be considered
legitimate.62 Moreover, a judgment declaring presumptive death is a defense against prosecution for
bigamy.63chanrobleslaw

It is true that in most cases, an action to declare the nullity of the subsequent marriage may nullify the effects of
the subsequent marriage, specifically, in relation to the status of children and the prospect of prosecuting a
respondent for bigamy.

However, "a Petition for Declaration of Absolute Nullity of Void Marriages may be filed solely by the husband or
wife."64 This means that even if Celerina is a real party in interest who stands to be benefited or injured by the
outcome of an action to nullify the second marriage, 65 this remedy is not available to her.

Therefore, for the purpose of not only terminating the subsequent marriage but also of nullifying the effects of the
declaration of presumptive death and the subsequent marriage, mere filing of an affidavit of reappearance would
not suffice. Celerina's choice to file an action for annulment of judgment will, therefore, lie.

WHEREFORE, the case is REMANDED to the Court of Appeals for determination of the existence of extrinsic
fraud, grounds for nullity/annulment of the first marriage, and the merits of the petition.

SO ORDERED.

12
SECOND DIVISION

G.R. No. 210929, July 29, 2015

REPUBLIC OF THE PHILIPPINES, Petitioner, v. EDNA ORCELINO-VILLANUEVA, Respondent.

DECISION

MENDOZA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, the Office of the Solicitor General
(OSG), on behalf of the Republic of the Philippines, assails the October 18, 2013 Decision 1 and the January 8, 2014
Resolution2 of the Court of Appeals (CA), in CA-G.R. S.P. No. 03768-MIN, which affirmed the October 8, 2009
Judgment3 of the Regional Trial Court, Branch 10, Malaybalay City, Bukidnon (RTC), in SP Proc. Case No. 3316-
09, granting the petition of respondent Edna Orcelino-Villanueva (Edna) and declaring her husband, Romeo L.
Villanueva (Romeo), as presumptively dead under Article 41 of the Family Code.4chanrobleslaw

The Antecedents

Edna and Romeo were married on December 21, 1978, in Iligan City.

In 1992, Edna worked as domestic helper in Singapore while her husband worked as a mechanic in Valencia City,
Bukidnon. In 1993, Edna heard the news from her children that Romeo had left their conjugal home without
reason or information as to his whereabouts.

Thereafter, Edna took a leave from work and returned to the country to look for Romeo. She inquired from her
parents-in-law and common friends in Iligan City. Still, she found no leads as to his whereabouts or existence.
She also went to his birthplace in Escalante, Negros Oriental, and inquired from his relatives.

On August 6, 2009, Edna filed before the RTC a petition5 to declare Romeo presumptively dead under Article 41
of the Family Code.

During the trial, Edna was presented as the lone witness. In its October 8, 2009 Order,6 the RTC granted the
petition on the basis of her well-founded belief of Romeo's death. Hence:chanRoblesvirtualLawlibrary
WHEREFORE, premises considered, judgment is hereby rendered declaring Romeo L. Villanueva to be
presumptively dead for all legal intents and purposes in accordance with Article 41 of the Family Code of the
Philippines, without prejudice to his reappearance.

SO ORDERED.7
On August 13, 2010, the OSG filed a petition for certiorari under Rule 65 of the Rules of Court before the CA
alleging grave abuse of discretion on the part of the RTC in finding that Edna had a well-founded belief that
Romeo, her absent spouse, was dead. It argued that the conclusions reached by the RTC were in direct opposition
to established jurisprudence, as ruled by the Court in Republic v. Nolasco8(Nolasco) and U.S. v. Biasbas9 On October
18, 2013, the CA dismissed the petition, holding that the RTC acted within its jurisdiction in issuing the assailed
decision having been expressly clothed with the power to determine the case. 10 It also cited Article 247 of the
Family Code11 which provided for the final and immediate executory character of the decision of the RTC, acting
as a family court, thus, rendering the issue of whether or not Edna had sufficiently established a well-founded
belief to warrant the decree of presumptive death of her absent spouse, as moot and academic.

On November 20, 2013, the OSG filed a motion for reconsideration but the CA denied it on January 8, 2014.

Hence, this petition.


ISSUES

I.

WHETHER OR NOT THE CA ERRED IN AFFIRMING THE RTC DECISION DESPITE THE FACT THAT
THE CONCLUSION REACHED BY THE RTC IS CONTRARY TO PREVAILING JURISPRUDENCE.

II.

13
WHETHER OR NOT THE CA ERRED IN RULING THAT THE GROUNDS RAISED BY THE PETITIONER
TO ASSAIL THE RTC DECISION ARE MERE ERRORS OF JUDGMENT. 12
The OSG argues that the CA erred in not finding grave abuse of discretion on the part of the RTC when the latter
affirmed the existence of Edna's well-founded belief as to the death of her absent spouse. It claims that the
evidence presented by Edna, which merely consisted of bare and uncorroborated assertions, never amounted to a
diligent and serious search required under prevailing jurisprudence.

Respondent Edna, through her counsel, invokes the finality, inalterability and immutability of the RTC decision,
which was affirmed by the CA.13chanrobleslaw

Ruling of the Court

The Court grants the petition.

Article 41 of the Family Code provides that before a judicial declaration of presumptive death may be granted,
the present spouse must prove that he/she has a well-founded belief that the absentee is dead.14 In this case, Edna
failed. The RTC and the CA overlooked Edna's patent non-compliance with the said requirement. 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 mere passive one). Mere absence of the spouse (even beyond the period required by law), lack of any news
that the absentee spouse is still alive, mere failure to communicate, or general presumption of absence under the
Civil Code would not suffice.15 The premise is that Article 41 of the Family Code places upon the present spouse
the burden of complying with the 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, whether the absent spouse is still alive or is already dead. 16chanrobleslaw

This strict standard approach ensures that a petition for declaration of presumptive death under Article 41 of the
Family Code is not used as a tool to conveniently circumvent the laws in light of the State's policy to protect and
strengthen the institution of marriage. Courts should never allow procedural shortcuts but instead should see to
it that the stricter standard required by the Family Code is met.17chanrobleslaw

Accordingly, in a string of cases, this Court has denied petitions for the declaration of presumptive death on the
said basis.

In Republic of the Philippines v. Court of Appeals,18 the Court ruled that the present spouse failed to prove that he
had a well-founded belief that his absent spouse was already dead before he filed his petition. His efforts to locate
his absent wife allegedly consisted of the following:chanRoblesvirtualLawlibrary
(1) He went to his in-laws' house to look for her;
(2) He sought the barangay captain's aid to locate her;
(3) He went to her friends' houses to find her and inquired about her whereabouts among her friends;
(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his free time;
(5) He went back to Catbalogan and again looked for her; and
(6) He reported her disappearance to the local police station and to the NBI.
Despite these claimed "earnest efforts," the Court still ruled against the present spouse. The Court explained that
he failed to present the persons from whom he made inquiries and only reported his wife's absence after the OSG
filed its notice to dismiss his petition in the RTC.

Similarly in Republic v. Granada,19 the Court ruled that the present spouse failed to prove her "well-founded belief"
that her absent spouse was already dead prior to her filing of the petition. She simply did not exert diligent efforts
to locate her husband either in the country or in Taiwan, where he was known to have worked. Moreover, she did
not explain her omissions. In said case, the Court wrote:chanRoblesvirtualLawlibrary
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 the death of the absent spouse depends upon
inquiries to be drawn from a great many circumstances occurring before and after the disappearance of an absent
spouse and the nature and extent of the inquiries made by the present spouse.chanroblesvirtuallawlibrary
In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who had been
missing for more than four years. He testified that his efforts to find her consisted of:chanRoblesvirtualLawlibrary
(1) Searching for her whenever his ship docked in England;
(2) Sending her letters which were all returned to him; and

14
(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless.
The Court held that the present spouse's methods of investigation were too sketchy to form a basis that his wife
was already dead. It stated that the pieces of evidence only proved that his wife had chosen not to communicate
with their common acquaintances, and not that she was dead.

Recently, in Republic v. Cantor20 (Cantor), the Court considered the present spouse's efforts to have fallen short of
the "stringent standard" and lacked the degree of diligence required by jurisprudence as she did not actively look
for her missing husband; that she did not report his absence to the police or seek the aid of the authorities to look
for him; that she did not present as witnesses her missing husband's relatives or their neighbors and friends, who
could corroborate her efforts to locate him; that these persons, from whom she allegedly made inquiries, were not
even named; and that there was no other corroborative evidence to support her claim that she conducted a
diligent search. In the Court's view, the wife merely engaged in a "passive search" where she relied on
uncorroborated inquiries from her in-laws, neighbors and friends. She, thus, failed to conduct a diligent search.
Her claimed efforts were insufficient to form a well-founded belief that her husband was already dead.

In this case, Edna claimed to have done the following to determine the whereabouts and the status of her
husband:chanRoblesvirtualLawlibrary

1. She took a vacation/leave of absence from her work and returned to the Philippines to look for
her husband.

2. She inquired from her parents-in-law in Iligan City and from their common friends in the same
city and in Valencia City.

3. She went as far as the birthplace of her husband in Escalante, Negros Oriental, so she could
inquire from her husband's relatives.

Despite her efforts, she averred that she received negative responses from them because none of them had
knowledge of the existence of her husband who had been missing for 15 years.

Applying the standard set forth by the Court in the previously cited cases, particularly Cantor, Edna's efforts
failed to satisfy the required well-founded belief of her absent husband's death.

Her claim of making diligent search and inquiries remained unfounded as it merely consisted of bare assertions
without any corroborative evidence on record. She also failed to present any person from whom she inquired
about the whereabouts of her husband. She did not even present her children from whom she learned the
disappearance of her husband. In fact, she was the lone witness. Following the basic rule that mere allegation is
not evidence and is not equivalent to proof,21 the Court cannot give credence to her claims that she indeed exerted
diligent efforts to locate her husband.

Moreover, no document was submitted to corroborate the allegation that her husband had been missing for at
least fifteen (15) years already. As the OSG observed, there was not even any attempt to seek the aid of the
authorities at the time her husband disappeared. In Cantor, the present spouse claimed to have sought the aid of
the authorities or, at the very least, reported his absence to the police. 22 Yet, the Court denied her pleas.

Verily, it makes sense to conclude that her efforts were not diligent and serious enough to give meaning to her
well-founded belief that Romeo was already dead. Suffice it to state that her petition should have been denied at
the first instance. The RTC, however, granted it, reasoning
xxx that it was in 1993 when the petitioner while abroad heard the news from her children that her husband left
their conjugal home xxx without informing the children nor communicating with the herein petitioner as to the
reasons why he left their family abode nor giving them any information as to his whereabouts; that herein
petitioner took vacation/leave of absence from her work and return to the Philippines, in order to look for her
husband and made some inquiries with her parents-in-law in Iligan City, from their common friends in Iligan
City and in Valencia City, and even went as far as the birthplace of her husband, particularly at Escalante, Negros
Oriental, inquiring from her husband's relatives, but she only got negative response from them since none of
them have any knowledge as to the present existence of her husband that since the year 1993 up to the present, a
period of about fifteen [15] years have elapsed, the person and the body of petitioner's husband could not be
found, located nor traced as there is no any information as to his existence or whereabouts. 23
Worse, the CA affirmed the RTC decision when it dismissed the petition for certiorari filed by the OSG. The CA
should have realized the glaring and patent disregard by the RTC of the rulings in similar situations where
petitions for declaration of presumptive death have been denied by this Court. By declaring Romeo
presumptively dead, the CA clearly ignored this Court's categorical pronouncements.

15
WHEREFORE, the petition is GRANTED. Accordingly, the October 18, 2013 Decision and the January 8, 2014
Resolution of the Court of Appeals are hereby REVERSED and SET ASIDE. The petition of respondent Edna
Orcelino-Villanueva to have her husband declared presumptively dead is DENIED.

SO ORDERED.cralawlawlibrary

16
SECOND DIVISION

G.R. No. 199194, February 10, 2016

REPUBLIC OF THE PHILIPPINES, Petitioner, v. JOSE B. SAREÑOGON, JR., Respondent.

DECISION

DEL CASTILLO, J.:

A petition for certiorari pursuant to Rule 65 of the Rules of Court is the proper remedy to challenge a trial court''s
declaration of presumptive death under Article 41 of The Family Code of the Philippines 1(Family
Code).2chanroblesvirtuallawlibrary

This Petition for Review on Certiorari3 assails the October 24, 2011 Decision4 of the Court of Appeals (CA) in CA-
GR. SP No. 04158-MIN dismissing the Petition for Certiorari filed by petitioner Republic of the Philippines
(Republic).

Factual Antecedents

On November 4, 2008, respondent Jose B. Sarefiogon, Jr. (Jose) filed a Petition5 before the Regional Trial Court
(RTC) of Ozamiz6 City-Branch 15 the declaration of presumptive death of his wife, Netchie S. 7Sareñogon
(Netchie).8chanroblesvirtuallawlibrary

In an Amended Order dated Februrary 11, 2009, the RTC set the Petition for initial hearing on April 16, 2009. It
likewise directed the publication of said Order in a newspaper of general circulation in the cities of Tangub,
Ozamiz and Oroquieta, all in the province of Misamis Occidental. Nobody opposed the Petition.9 Trial then
followed.10chanroblesvirtuallawlibrary

Jose testified that he first met Netchie in Clarin, Misamis Occidental in 1991, 11 They later became sweethearts and
on August 10,1996, they got married in civil rites at the Manila City Hall.12 However, they lived together as
husband and wife for a month only because he left to work as a seaman while Netchie went to Hongkong as a
domestic helper.13 For three months, he did not receive any communication from Netchie. 14 He likewise had no
idea about her whereabouts.15 While still abroad, he tried to contact Netchie''s parents, but failed, as the latter had
allegedly left Clarin, Misamis Occidental.16 He returned home after his contract expired.17 He then inquired from
Netchie''s relatives and friends about her whereabouts, but they also did not know where she was. 18 Because of
these, he had to presume that his wife Netchie was already dead. 19 He filed the Petition before the RTC so he
could contract another marriage pursuant to Article 41 of the Family Code.20chanroblesvirtuallawlibrary

Jose''s testimony was corroborated by his older brother Joel Sareñogon, and by Netchie''s aunt, Consuelo
Sande.21 These two witnesses testified that Jose and Netchie lived together as husband and wife only for one
month prior to their leaving the Philippines for separate destinations abroad. 22 These two added that they had no
information regarding Netchie''s location.23chanroblesvirtuallawlibrary

Ruling of the Regional Trial Court

In its Decision24 dated January 31,2011 in Spec. Proc. No. 045-08, the RTC held that Jose had established by
preponderance of evidence that he is entitled to the relief prayed for under Article 41 of the Family Code. 25 The
RTC found that Netchie had disappeared for more than four years, reason enough for Jose to conclude that his
wife was indeed already dead.26 The dispositive portion of the Decision reads:ChanRoblesVirtualawlibrary

VIEWED IN THE LIGHT OF THE FOREGOING, judgment is hereby rendered declaring respondent
presumptively dead for purposes of remarriage of petitioner.

SO ORDERED.27chanroblesvirtuallawlibrary
Proceedings before the Court of Appeals

On April 19,2011, the Republic, through the Office of the Solicitor General (OSG), elevated the judgment of the
RTC to the CA via a Petition for Certiorari28, under Rule 65 of the Revised Rules of Court.

17
In its Decision29 of October 24, 2011, the CA held that the Republic used the wrong recourse by instituting a
petition for certiorari under Rule 65 of the Revised Rules of Court. The CA perceived no error at all in the RTC''s
judgment granting Jose''s Petition for the declaration of the presumptive death of his wife, Netchie. The CA thus
held in effect that the Republic''s appeal sought to correct or review the RTC''s alleged misappreciation of
evidence which could not translate into excess or lack of jurisdiction amounting to grave abuse of
discretion.30 The CA noted that the RTC properly caused the publication of the Order setting the case for initial
hearing.31 The CA essentially ruled that, "[a] writ of certiorari may not be used to correct a lower court''s
evaluation of the evidence and factual findings. In other words, it is not a remedy for mere errors of judgment,
which are correctible by an appeal,"32 The CAthendisposed of the case in this wise:ChanRoblesVirtualawlibrary
WHEREFORE, the petition for certiorari is dismissed.

SO ORDERED.33chanroblesvirtuallawlibrary
Issues

The Republic filed the instant Petition34 raising the following issues:ChanRoblesVirtualawlibrary
THE HONORABLE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN ITS ASSAILED DECISION
BECAUSE:chanRoblesvirtualLawlibrary

THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN DISMISSING THE
REPUBLIC''S PETITION FOR REVIEW ON CERTIORARI UNDER RULE 65, ON THE GROUND THAT THE
PROPER REMEDY SHOULD HAVE BEEN TO APPEAL THE RTC DECISION, BECAUSE IMMEDIATELY
FINAL AND EXECUTORY JUDGMENTS OR DECISIONS ARE NOT APPEALABLE UNDER THE EXPRESS
PROVISION OF LAW.chanRoblesvirtualLawlibrary

II

THE ALLEGED EFFORTS OF RESPONDENT IN LOCATING HIS MISSING WIFE DO NOT SUFFICIENTLY
SUPPORT A "WELL-FOUNDED BELIEF" THAT RESPONDENT''S ABSENT WIFE X X X IS PROBABLY
DEAD.35chanroblesvirtuallawlibrary
Petitioner''s Arguments

The Republic insists that a petition for certiorari under Rule 65 of the Revised Rules of Court is the proper remedy
to challenge an RTC''s immediately final and executory Decision on a presumptive
death.36chanroblesvirtuallawlibrary

The Republic claims that based on jurisprudence, Jose''s alleged efforts in locating Netchie did not engender or
generate a well-founded belief that the latter is probably dead.37 It maintains that even as Jose avowedly averred
that he exerted efforts to locate Netchie, Jose inexplicably failed to enlist the assistance of the relevant government
agencies like the Philippine National Police, the National Bureau of Investigation, the Department of Foreign
Affairs, the Bureau of Immigration, the Philippine Overseas Employment Administration, or the Overseas
Workers Welfare Administration.38 It likewise points out that Jose did not present any disinterested person to
corroborate his allegations that the latter was indeed missing and could not be found. 39 It also contends that Jose
did not advert to circumstances, events, occasions, or situations that would prove that he did in fact make a
comprehensive search for Netchie.40 The Republic makes the plea that courts should ever be vigilant and wary
about the propensity of some erring spouses in resorting to Article 41 of the Family Code for the purpose of
terminating their marriage.41chanroblesvirtuallawlibrary

Finally, the Republic submits that Jose did not categorically assert that he wanted to have Netchie declared
presumptively dead because he intends to get married again, an essential premise of Article 41 of the Family
Code.42chanroblesvirtuallawlibrary

Respondent''s Arguments

Jose counters that the CA properly dismissed the Republic''s Petition because the latter''s petition is erected upon
the ground that the CA did not correctly weigh or calibrate the evidence on record, or assigned to the evidence its
due worth, import or significance; and that such a ground does not avail in a petition for certiorari under Rule 65
of the Revised Rules of Court.43 Jose also contends that the Republic should have instead filed a motion for
reconsideration44 of the RTC''s Decision of January 31, 2011, reasoning out that a motion for reconsideration is a
plain, speedy and adequate remedy in law. Jose furthermore submits that the RTC did not act arbitrarily or
capriciously in granting his petition because it even dutifully complied with the publication requirement. 45 He
moreover argues that to sustain the present petition would allow the executive branch to unduly make inroads

18
into judicial territory.46 Finally, he insists that the trial court''s factual findings are entitled to great weight and
respect as these were arrived after due deliberation. 47chanRoblesvirtualLawlibrary

This Court''s Ruling

This Court finds the Republic''s petition meritorious.

A petition for certiorari under Rule 65 of the Rules of Court is the proper remedy to question the RTC''s Decision
in a summary proceeding for the declaration of presumptive death

In the 2005 case of Republic v. Bermudez-Lorino,48 we held that the RTC''s Decision on a Petition for declaration of
presumptive death pursuant to Article 41 of the Family Code is immediately final and executory. Thus, the CA
has no jurisdiction to entertain a notice of appeal pertaining to such judgment.49 Concurring in the result, Justice
(later Chief Justice) Artemio Panganiban further therein pointed out that the correct remedy to challenge the RTC
Decision was to institute a petition for certiorari under Rule 65, and not a petition for review under Rule
45.50chanroblesvirtuallawlibrary

We expounded on this appellate procedure in Republic v. Tango:51chanroblesvirtuallawlibrary


This case presents an opportunity for us to settle the rule on appeal of judgments rendered in summary
proceedings under the Family Code and accordingly, refine our previous decisions thereon,

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW,
establishes the rules that govern summary court proceedings in the Family Code:ChanRoblesVirtualawlibrary
ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided
for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner
without regard to technical rules.
In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and three of the
same title. It states:ChanRoblesVirtualawlibrary
ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under
Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable. (Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:ChanRoblesVirtualawlibrary
ART. 247. The judgment of the court shall be immediately final and executory.
By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and
executory. As a matter of course, it follows that no appeal can be had of the trial court''s judgment in a summary
proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It
goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. 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 Court''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, x x x 52 (Citation omitted; Underscoring supplied)
"In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for the declaration of
presumptive death may file a petition for certiorari with the CA on the ground that, in rendering judgment
thereon, the trial court committed grave abuse of discretion amounting to lack of jurisdiction. From the Decision
of the C A, the aggrieved party may elevate the matter to this Court via a petition for review on certiorari under
Rule 45 of the Rules of Court."53chanroblesvirtuallawlibrary

In fact, in Republic v. Narceda,54 we held that the OSG availed of the wrong remedy when it filed a notice of appeal
under Rule 42 with the CA to question the RTCs Decision declaring the presumptive death of Marina B.
Narceda.55chanroblesvirtuallawlibrary

Above all, this Court''s ruling in Republic v. Cantor56 made it crystal clear that the OSG properly availed of a
petition for certiorari under Rule 65 to challenge the RTCs Order therein declaring Jerry Cantor as presumptively
dead.

Based on the foregoing, it is clear that the Republic correctly availed of certiorari under Rule 65 of the Revised
Rules of Court in assailing before the CA the aforesaid RTCs Decision.

The "well-founded belief" requisite under Article 41 of the Family Code is complied with only upon a showing
that sincere honest-to-goodness efforts had indeed been made to ascertain whether the absent spouse is still alive
or is already dead

19
We now proceed to determine whether the RTC properly granted Jose''s Petition. Article 41 of the Family Code
pertinently provides that:ChanRoblesVirtualawlibrary
Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In
case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article
391 of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent spouse. (83a)
In Republic v. Cantor,57 we further held that:ChanRoblesVirtualawlibrary
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 essential requisites for the declaration of
presumptive death:ChanRoblesVirtualawlibrary
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;

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.58 (Underscoring supplied)
With respect to the third element (which seems to be the element that in this case invites extended discussion), the
holding is that the -
mere absence of the spouse (even for such period required by the law), or lack of news that such absentee is still
alive, failure to communicate [by the absentee spouse or invocation of the] general presumption on 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 due 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
[either] still alive or is already dead.

xxxx

The law did not define what is meant by "well-founded belief." It depends upon the circumstances of each
particular case. Its determination, so to speak, remains on a case-to-case basis. To be able to comply with this
requirement, 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).59 (Emphasis omitted; underscoring supplied)
In the case at bar, the RTC ruled that Jose 1ms "well-founded belief that Netchie was already dead upon the
following grounds:

(1) Jose allegedly tried to contact Netchie''s parents while he was still out of the country, but did not reach them as
they had allegedly left Clarin, Misamis Occidental;

(2) Jose believed/presumed that Netchie was already dead because when he returned home, he was not able to
obtain any information that Netchie was still alive from Netchie''s relatives and friends;

(3) Jose''s testimony to the effect that Netchie is no longer alive, hence must be presumed dead, was corroborated
by Jose''s older brother, and by Netchie''s aunt, both of whom testified that he (Jose) and Netchie lived together as
husband and wife only for one month and that after this, there had been no information as to Netchie''s
whereabouts.

In the above-cited case of Republic v. Cantor,60 this Court held that the present spouse (Maria Fe Espinosa Cantor)
merely conducted a "passive search" because she simply made unsubstantiated inquiries from her in-laws, from
neighbors and friends. For that reason, this 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

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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.61 The rationale for this palpably stringent or rigorous requirement has
been marked out thus:ChanRoblesVirtualawlibrary
xxx [T]he Court fully aware of the possible collusion of spouses in nullifying their marriage, has consistently
applied the "strict standard" approach. This is to ensure that a petition for declaration of presumptive death under
Article 41 of the Family Code is not used as a tool to conveniently circumvent the laws. Courts should never
allow procedural shortcuts and should ensure that the stricter standard required by the Family Code is met. xxx

The application of this stricter standard becomes even more imperative if we consider the State''s policy to protect
and strengthen the institution of marriage. Since marriage serves as the family''s foundation and since it is the
state''s policy to protect and strengthen the family as a basic social institution, marriage should not be permitted
to be dissolved at the whim of the parties. xxx

xxx [I]t has not escaped this Court''s attention that the strict standard required in petitions for declaration of
presumptive death has not been fully observed by the lower courts. We need only to cite the instances when this
Court, on review, has consistently ruled on the sanctity of marriage and reiterated that anything less than the use
of the strict standard necessitates a denial. To rectify this situation, lower courts are now expressly put on notice
of the strict standard this Court requires in cases under Article 41 of the Family Code." (Citations
omitted)62chanroblesvirtuallawlibrary
Given the Court''s imposition of "strict standard" in a petition for a declaration of presumptive death under
Article 41 of the Family Code, it must follow that there was no basis at all for the RTC''s finding that Jose''s
Petition complied with the requisites of Article 41 of the Family Code, in reference to the "well-founded belief
standard. If anything, Jose''s pathetically anemic efforts to locate the missing Netchie are notches below the
required degree of stringent diligence prescribed by jurisprudence. For, aside from his bare claims that he had
inquired from alleged friends and relatives as to Netchie''s whereabouts, Jose did not call to the witness stand
specific individuals or persons whom he allegedly saw or met in the course of his search or quest for the allegedly
missing Netchie. Neither did he prove that he sought the assistance of the pertinent government agencies as well
as the media, Nor did he show mat he undertook a thorough, determined and unflagging search for Netchie, say
for at least two years (and what those years were), and naming the particular places, provinces, cities, barangays
or municipalities that he visited, or went to, and identifying the specific persons he interviewed or talked to in the
course of his search.

WHEREFORE, the Petition is GRANTED, The Decision dated October 24, 2011 of the Court of Appeals in CA-
GR. SP No. 04158-MN is REVERSED AND SET ASIDE. The respondent''s Petition in said Spec. Proc. No. 045-08
is accordingly DISMISSED.

SO ORDERED.

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