REPUBLIC OF THE PHILIPPINES, Petitioner, v. NILDA B.

TAMPUS,
Respondent.

G.R. No. 214243, March 16, 2016

Facts : Respondent Nilda B. Tampus (Nilda) was married to Dante L. Del Mundo (Dante)
on November 29, 1975 in Cordova, Cebu. The marriage ceremony was solemnized by
Municipal Judge Julian B. Pogoy of Cordova, Cebu.5 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.6

Since then, Nilda heard no news from Dante,. She tried everything to locate him, but her
efforts proved futile.7 Thus, on April 14, 2009, she filed before the RTC a petition8 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.9

Due to the absence of any oppositor, Nilda was allowed to present her evidence ex parte.
She testified on the allegations in her petition, affirming that she exerted efforts to find
Dante by inquiring from his parents, relatives, and neighbors, who, unfortunately, were
also not aware of his whereabouts. She averred that she intends to remarry and move on
with her life.

RTC granted Nilda’s petition and rendered Dante as presumptively dead. issatisfied, the
Office of the Solicitor General (OSG), on behalf of petitioner Republic of the Philippines
(Republic), filed a petition for certiorari13 before the CA assailing the RTC Decision.
The CA affirmed the RTC’s ruling and denied the OSG’s petition.

Issue : The sole issue for the Court's resolution is whether or not the CA erred in
upholding the RTC Decision declaring Dante as presumptively dead.

Held : The petition has merit.

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) 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. Since it is the present spouse
who, for purposes of declaration of presumptive death, substantially asserts the
affirmative of the issue, it stands to reason that the burden of proof lies with him/her. 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.22

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. Considering her own pronouncement that Dante was sent by the AFP on a
combat mission to Jolo, Sulu at the time of his disappearance, 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. In Republic v. Nolasco,24 it was
held that the present spouse's bare assertion that he inquired from his friends about his
absent spouse's whereabouts was found insufficient as the names of said friends were not
identified in the testimony nor presented as witnesses.25cralawred

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. In fine, having fallen short of the stringent standard and degree of due
diligence required by jurisprudence to support her claim of a "well-founded belief that
her husband Dante is already dead, the instant petition must be granted.chanrobleslaw

WHEREFORE, the petition is GRANTED. Accordingly, the Decision dated June 17,
2013 and the Resolution dated September 2, 2014 rendered by the Court of Appeals in
CA-G.R. SP No. 04588 are hereby REVERSED and SET ASIDE. The petition of
respondent Nilda B. Tampus to have her husband, Dante L. Del Mundo, declared
presumptively dead is DENIED.

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

Respondent.

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

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

Jose testified that he first met Netchie in Clarin, Misamis Occidental in 1991, 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.23c

RTC ruled that Jose is entitled to the relief prayed for. 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.

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.

Issue :

1. Whether or not the Court of Appeals erred in dismissing the Republic’s petition
because it allegedly used the wrong remedy.
 2. Whether or not Jose’s wife is presumptively dead.

Held : This Court finds the Republic''s petition meritorious.

1. 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.

2. 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

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.

*(Leonen, J., Dissenting Opinion)

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

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

Facts : 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.

RTC rendered judgment ruling that Romeo is presumtively dead. 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. CA affirmed RTC’s ruling and denied also
OSG’s motion for reconsideration.

Issue : 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.

Held : Despite her efforts, she averred that she received negative responses from her
husband’s relatives 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.

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.

*(Leonen, J., Dissenting Opinion)

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

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

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.

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. He also inquired about her from other relatives and
friends, but no one gave him any information. 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.hanrobleslaw

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

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

On November 17, 2008, Celerina filed a petition for annulment of judgment14 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

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 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. Hence, this petition was filed.
Issue : 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.

Held : 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. The grounds for annulment of judgment are extrinsic
fraud and lack of jurisdiction.

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.
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. Celerina claimed that because of these, she was deprived of notice and
opportunity to oppose Ricardo's petition to declare her presumptively dead.anrobleslaw

Celerina alleged that all the facts supporting Ricardo's petition for declaration of
presumptive death were false. 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.chanrobleslaw

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

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

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.

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
belief 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.

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.63chanrobl

eslawTherefore, 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.

G.R. No. 184621 December 10, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. MARIA FE ESPINOSA

CANTOR, Respondent.

Facts : The respondent and Jerry were married on September 20, 1997. They lived
together as husband and wife in their conjugal dwelling in Agan Homes, Koronadal City,
South Cotabato. Sometime in January 1998, the couple had a violent quarrel brought
about by: (1) the respondent’s inability to reach "sexual climax" whenever she and Jerry
would have intimate moments; and (2) Jerry’s expression of animosity toward the
respondent’s father.

After their quarrel, Jerry left their conjugal dwelling and this was the last time that the
respondent ever saw him. Since then, she had not seen, communicated nor heard anything
from Jerry or about his whereabouts.

On May 21, 2002, or more than four (4) years from the time of Jerry’s disappearance, the
respondent filed before the RTC a petition for her husband’s declaration of presumptive
death, docketed as SP Proc. Case No. 313-25. She claimed that she had a well-founded
belief that Jerry was already dead. She alleged that she had inquired from her mother-in-
law, her brothers-in-law, her sisters-in-law, as well as her neighbors and friends, but to no
avail. In the hopes of finding Jerry, she also allegedly made it a point to check the
patients’ directory whenever she went to a hospital. All these earnest efforts, the
respondent claimed, proved futile, prompting her to file the petition in court.

RTC granted the petition and declared Jerry presumptively dead. The case reached the
CA through a petition for certiorari6filed by the petitioner, Republic of the
Philippines, through the Office of the Solicitor General (OSG). In its August 27, 2008
decision, the CA dismissed the petitioner’s petition, finding no grave abuse of
discretion on the RTC’s part, and, accordingly, fully affirmed the latter’s order.

The petitioner brought the matter via a Rule 45 petition before this Court. The Petition
The petitioner contends that certiorari lies to challenge the decisions, judgments or final
orders of trial courts in petitions for declaration of presumptive death of an absent spouse
under Rule 41 of the Family Code. It maintains that although judgments of trial courts in
summary judicial proceedings, including presumptive death cases, are deemed
immediately final and executory (hence, not appeal able under Article 247 of the Family
Code), this rule does not mean that they are not subject to review on certiorari.

The petitioner also posits that the respondent did not have a well-founded belief to justify
the declaration of her husband’s presumptive death. It claims that the respondent failed to
conduct the requisite diligent search for her missing husband.

Issue :

(1) Whether certiorarilies to challenge the decisions, judgments or final orders of trial
courts in petitions for declaration of presumptive death of an absent spouse under Article
41 of the Family Code; and

(2) Whether the respondent had a well-founded belief that Jerry is already dead.

Held : We grant the petition.

Court’s Judgment in the Judicial
Proceedings for Declaration of
Presumptive Death Is Final and
Executory, Hence, Unappealable

The Family Code was explicit that the court’s judgment in summary proceedings, such as
the declaration of presumptive death of an absent spouse under Article 41 of the Family
Code, shall be immediately final and executory. Article 41,in relation to Article 247, of
the Family Code provides: x x x

With the judgment being final, it necessarily follows that it is no longer subject
to an appeal, the dispositions and conclusions therein having become
immutable and unalterable not only as against the parties but even as against
the courts. Modification of the court’s ruling, no matter how erroneous is no
longer permissible. The final and executory nature of this summary
proceeding thus prohibits the resort to appeal.

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 Family Code

A losing party in this proceeding, however, is not entirely left without a remedy. While
jurisprudence tells us that no appeal can be made from the trial court's judgment, an
aggrieved party may, nevertheless, file a petition for certiorari under Rule 65 of the Rules
of Court to question any abuse of discretion amounting to lack or excess of jurisdiction
that transpired.

As held in Delos Santos v. Rodriguez, et al., the fact that a decision has become final
does not automatically negate the original action of the CA to issue certiorari,
prohibition and mandamus in connection with orders or processes issued by the
trial court. Certiorari may be availed of where a court has acted without or in
excess of jurisdiction or with grave abuse of discretion, and where the
ordinary remedy of appeal is not available. Such a procedure finds support in the
case of Republic v. Tango.

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 ina 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. [emphasis ours]

Viewed in this light, we find that the petitioner’s resort to certiorari under Rule 65 of the
Rules of Court to question the RTC’s order declaring Jerry presumptively dead was
proper.

The Essential Requisites for the

Declaration of Presumptive Death
Under Article 41 of the Family Code

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 consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death under the
circumstances laid down in Article 391, 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.

The Present Spouse Has the Burden

of Proof to Show that All the
Requisites Under Article 41 of the
Family Code Are Present

Under Article 41, the time required for the presumption to arise has been
shortened to four (4) years; however, there is need for a judicial declaration of
presumptive death to enable the spouse present to remarry.

Also, Article 41 of the Family Code imposes a stricter standard than the Civil
Code: Article 83 of the Civil Code merely requires either that there be no news that
such absentee is still alive; or the absentee is generally considered to be dead and
believed to be so by the spouse present, or is presumed dead under Articles 390 and
391 of the Civil Code. The Family Code, upon the other hand, prescribes as "well
founded belief" that the absentee is already dead before a petition for declaration of
presumptive death can be granted.

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" 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, that the absent spouse is still
alive or is already dead.

The Requirement of Well-Founded Belief

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 spouseis already dead. It requires exertion of active
effort (not a mere passive one).

Her efforts, however, fell short of the "stringent standard" and degree of diligence
required by jurisprudence for the following reasons:

First, the respondent did not actively look for her missing husband. It can be
inferred from the records that her hospital visits and her consequent checking of the
patients’ directory therein were unintentional. She did not purposely undertake a
diligent search for her husband as her hospital visits were not planned nor primarily
directed to look for him. This Court thus considers these attempts insufficient to engender
a belief that her husband is dead. Second, she did not report Jerry’s absence to the
police nor did she seek the aid of the authorities to look for him.

Third, she did not present as witnesses Jerry’s relatives or their neighbors and
friends, who can corroborate her efforts to locate Jerry. Worse, these persons, from
whom she allegedly made inquiries, were not even named. As held in Nolasco, the
present spouse’s bare assertion that he inquired from his friends about his absent spouse’s
whereabouts is insufficient as the names of the friends from whom he made inquiries
were not identified in the testimony nor presented as witnesses.

Lastly, there was no other corroborative evidence to support the respondent’s claim
that she conducted a diligent search. Neither was there supporting evidence proving
that she had a well-founded belief other than her bare claims that she inquired from
her friends and in-laws about her husband’s whereabouts. In sum, the Court is of the
view that the respondent merely engaged in a "passive search" where she relied on
uncorroborated inquiries from her in-laws, neighbors and friends. She failed to conduct a
diligent search because her alleged efforts are insufficient to form a well-founded belief
that her husband was already dead.

Strict Standard Prescribed Under

Article 41 of the Family Code
Is for the Present Spouse’s Benefit

The requisite judicial declaration of presumptive death of the absent spouse (and
consequently, the application of a stringent standard for its issuance) is also for the
present spouse's benefit. It is intended to protect him/her from a criminal
prosecution of bigamy under Article 349 of the Revised Penal Code which might
come into play if he/she would prematurely remarry sans the court's declaration.

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.28 Thus, for purposes
of remarriage, it is necessary to strictly comply with the stringent standard and have the
absent spouse judicially declared presumptively dead.

As a final word, it 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.

WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of
the Court of Appeals, which affirmed the order dated December 15, 2006 of the Regional
Trial Court, Branch 25, Koronadal City, South Cotabato, declaring Jerry F. Cantor
presumptively dead is hereby REVERSED and SET ASIDE.

*(Leonen, J., Dissenting Opinion ; Abad, J. & Mendoza, J. joins Justice Leonen’s
dissenting opinion)

Angelita Valdez vs. Republic of the Philippines

G.R. No. 180863, September 8, 2009

Petitioner married Sofio on January 11, 1971 in Pateros, Rizal. On December 13,
1971, petitioner gave birth to the spouses only child, Nancy. According to petitioner, she
and Sofio argued constantly because the latter was unemployed and did not bring home
any money. In March 1972, Sofio left their conjugal dwelling. Petitioner and their child
waited for him to return but, finally, in May 1972, petitioner decided to go back to her
parents home in Bancay 1st, Camiling, Tarlac. Three years passed without any word from
Sofio. In October 1975, Sofio showed up at Bancay 1st. He and petitioner talked for
several hours and they agreed to separate. They executed a document to that effect. That
was the last time petitioner saw him. After that, petitioner didnt hear any news of Sofio,
his whereabouts or even if he was alive or not.

Believing that Sofio was already dead, petitioner married Virgilio Reyes on June
20, 1985. Subsequently, however, Virgilios application for naturalization filed with the
United States Department of Homeland Security was denied because petitioners marriage
to Sofio was subsisting. Hence, on March 29, 2007, petitioner filed a Petition before the
RTC of Camiling, Tarlac seeking the declaration of presumptive death of Sofio.

The RTC rendered its Decision on November 12, 2007, dismissing the Petition for
lack of merit. The RTC held that Angelita was not able to prove the well-grounded belief
that her husband Sofio Polborosa was already dead. The RTC found that, by petitioners
own admission, she did not try to find her husband anymore in light of their mutual
agreement to live separately. Likewise, petitioners daughter testified that her mother
prevented her from looking for her father. The RTC also said there is a strong possibility
that Sofio is still alive, considering that he would have been only 61 years old by then,
and people who have reached their 60s have not become increasingly low in health and
spirits, and, even assuming as true petitioners testimony that Sofio was a chain smoker
and a drunkard, there is no evidence that he continues to drink and smoke until now.

Petitioner filed a motion for reconsideration. She argued that it is the Civil Code that
applies in this case and not the Family Code since petitioners marriage to Sofio was
celebrated on January 11, 1971, long before the Family Code took effect. Petitioner
further argued that she had acquired a vested right under the provisions of the Civil Code
and the stricter provisions of the Family Code should not be applied against her because
Title XIV of the Civil Code, where Articles 384 and 390 on declaration of absence and
presumption of death, respectively, can be found, was not expressly repealed by the
Family Code. To apply the stricter provisions of the Family Code will impair the rights
petitioner had acquired under the Civil Code. An appeal was made directly to the
Supreme Court.
Issue : Whether or not the RTC erred in ruling that Sofio cannot be held to be
presumtively dead based on Article 41 of the Family Code.

Held : It is readily apparent, however, that the marriages of petitioner to Sofio and
Virgilio on January 11, 1971 and June 20, 1985, respectively, were both celebrated under
the auspices of the Civil Code. The pertinent provision of the Civil Code is Article 83:

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, of 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.

The Court, on several occasions, had interpreted the above-quoted provision in this wise:

For the purposes of the civil marriage law, it is not necessary to have
the former spouse judicially declared an absentee. The declaration of
absence made in accordance with the provisions of the Civil Code has for
its sole purpose to enable the taking of the necessary precautions for the
administration of the estate of the absentee. For the celebration of civil
marriage, however, the law only requires that the former spouse has been
absent for seven consecutive years at the time of the second marriage, that
the spouse present does not know his or her former spouse to be living,
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.

Further, the Court explained that presumption of death cannot be the subject
of court proceedings independent of the settlement of the absentees estate.

In re Szatraw is instructive. In that case, petitioner contracted marriage with a

Polish national in 1937. They lived together as husband and wife for three years.
Sometime in 1940, the husband, on the pretext of visiting some friends, left the conjugal
abode with their child and never returned. After inquiring from friends, petitioner found
that her husband went to Shanghai, China. However, friends who came from Shanghai
told her that the husband was not seen there. In 1948, petitioner filed a petition for the
declaration of presumptive death of her husband arguing that since the latter had been
absent for more than seven years and she had not heard any news from him and about her
child, she believes that he is dead. In deciding the case, the Court said:

The petition is not for the settlement of the estate of Nicolai

Szatraw, because it does not appear that he possessed property brought to
the marriage and because he had acquired no property during his married
life with the petitioner. The rule invoked by the latter is merely one of
evidence which permits the court to presume that a person is dead after the
fact that such person had been unheard from in seven years had been
established. This presumption may arise and be invoked and made in a
case, either in an action or in a special proceeding, which is tried or heard
by, and submitted for decision to, a competent court. Independently of
such an action or special proceeding, the presumption of death cannot
be invoked, nor can it be made the subject of an action or special
proceeding. In this case, there is no right to be enforced nor is there a
remedy prayed for by the petitioner against her absent husband. Neither is
there a prayer for the final determination of his right or status or for the
ascertainment of a particular fact (Hagans v. Wislizenus, 42 Phil. 880), for
the petition does not pray for a declaration that the petitioner's husband is
dead, but merely asks for a declaration that he be presumed dead because
he had been unheard from in seven years. If there is any pretense at
securing a declaration that the petitioner's husband is dead, such a
pretension cannot be granted because it is unauthorized. The petition is for
a declaration that the petitioner's husband is presumptively dead. But this
declaration, even if judicially made, would not improve the petitioner's
situation, because such a presumption is already established by law. A
judicial pronouncement to that effect, even if final and executory,
would still be a prima facie presumption only. It is still disputable. 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. The
latter must decide finally the controversy between the parties, or determine
finally the right or status of a party or establish finally a particular fact, out
of which certain rights and obligations arise or may arise; and once such
controversy is decided by a final judgment, or such right or status
determined, or such particular fact established, by a final decree, then the
judgment on the subject of the controversy, or the decree upon the right or
status of a party or upon the existence of a particular fact, becomes res
 judicata, subject to no collateral attack, except in a few rare instances
especially provided by law. It is, therefore, clear that a judicial
declaration that a person is presumptively dead, because he had been
unheard from in seven years, being a presumption juris tantum only,
subject to contrary proof, cannot reach the stage of finality or become
final. Proof of actual death of the person presumed dead because he had
been unheard from in seven years, would have to be made in another
proceeding to have such particular fact finally determined. If a judicial
decree declaring a person presumptively dead, because he had not been
heard from in seven years, cannot become final and executory even after
the lapse of the reglementary period within which an appeal may be taken,
for such presumption is still disputable and remains subject to contrary
proof, then a petition for such a declaration is useless, unnecessary,
superfluous and of no benefit to the petitioner.

In both cases, the Court reiterated its ruling in Szatraw. It held that a petition for
judicial declaration that petitioner's husband is presumed to be dead cannot be
entertained because it is not authorized by law.

From the foregoing, it can be gleaned that, under the Civil Code, the
presumption of death is established by law and no court declaration is needed for
the presumption to arise. Since death is presumed to have taken place by the
seventh year of absence, Sofio is to be presumed dead starting October 1982.

Consequently, at the time of petitioners marriage to Virgilio, there existed no

impediment to petitioners capacity to marry, and the marriage is valid under paragraph 2
of Article 83 of the Civil Code.

Further, considering that it is the Civil Code that applies, proof of well-founded
belief is not required. Petitioner could not have been expected to comply with this
requirement since the Family Code was not yet in effect at the time of her marriage to
Virgilio. The enactment of the Family Code in 1988 does not change this conclusion.

To retroactively apply the provisions of the Family Code requiring petitioner to

exhibit well-founded belief will, ultimately, result in the invalidation of her second
marriage, which was valid at the time it was celebrated. Such a situation would be
untenable and would go against the objectives that the Family Code wishes to achieve.
 In sum, we hold that the Petition must be dismissed since no decree on the
presumption of Sofios death can be granted under the Civil Code, the same presumption
having arisen by operation of law. However, we declare that petitioner was capacitated to
marry Virgilio at the time their marriage was celebrated in 1985 and, therefore, the said
marriage is legal and valid.

WHEREFORE, the foregoing premises considered, the Petition is DENIED.

ANTONIA ARMAS Y CALISTERIO, petitioner, vs. MARIETTA CALISTERIO,

respondent.

[G.R. No. 136467. April 6, 2000]

On 24 April 1992, Teodorico Calisterio died intestate, leaving several parcels of

land with an estimated value of P604,750.00. Teodorico was survived by his wife,
herein respondent Marietta Calisterio. Esm

Teodorico was the second husband of Marietta who had previously been married
to James William Bounds on 13 January 1946 at Caloocan City. James Bounds
disappeared without a trace on 11 February 1947. Teodorico and Marietta were
married eleven years later, or on 08 May 1958, without Marietta having priorly
secured a court declaration that James was presumptively dead. Esmsc

On 09 October 1992, herein petitioner Antonia Armas y Calisterio, a surviving

sister of Teodorico, filed with the Regional Trial Court ("RTC") of Quezon City,
Branch 104, a petition entitled, "In the Matter of Intestate Estate of the Deceased
Teodorico Calisterio y Cacabelos, Antonia Armas, Petitioner," claiming to be inter
alia, the sole surviving heir of Teodorico Calisterio, the marriage between the
latter and respondent Marietta Espinosa Calisterio being allegedly bigamous and
thereby null and void. She prayed that her son Sinfroniano C. Armas, Jr., be
appointed administrator, without bond, of the estate of the deceased and that the
inheritance be adjudicated to her after all the obligations of the estate would have
been settled.

Respondent Marietta opposed the petition. Marietta stated that her first marriage
with James Bounds had been dissolved due to the latter's absence, his
whereabouts being unknown, for more than eleven years before she contracted
her second marriage with Teodorico. Contending to be the surviving spouse of
Teodorico, she sought priority in the administration of the estate of the decedent.
Esmmis
On 05 February 1993, the trial court issued an order appointing jointly
Sinfroniano C. Armas, Jr., and respondent Marietta administrator and
administratrix, respectively, of the intestate estate of Teodorico.

On 17 January 1996, the lower court handed down its decision in favor of
petitioner Antonia; it adjudged: "WHEREFORE, judgment is hereby rendered
finding for the petitioner and against the oppositor whereby herein petitioner,
Antonia Armas y Calisterio, is declared as the sole heir of the estate of Teodorico
Calisterio y Cacabelos.” The CA reversed and set aside the appealled decision.

Issue : Whether or not the marriage between Teodorico and Marrietta is valid
being determinative of her right as a surviving spouse.

Held : The marriage between the deceased Teodorico and respondent Marietta
was solemnized on 08 May 1958. The law in force at that time was the Civil
Code, not the Family Code which took effect only on 03 August 1988. Article 256
of the Family Code itself limited its retroactive governance only to cases where it
thereby would not prejudice or impair vested or acquired rights in accordance
with the Civil Code or other laws.

Verily, the applicable specific provision in the instant controversy is Article 83 of

the New Civil Code which provides: Kyle

"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."

Under the foregoing provisions, 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. Paragraph (2) of the law gives
exceptions from the above rule. For the subsequent marriage referred to in
the three exceptional cases therein provided, to be held valid, the spouse
present (not the absentee spouse) 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. Kycalr

A judicial declaration of absence of the absentee spouse is not necessary

as long as the prescribed period of absence is met. It is equally noteworthy
that the marriage in these exceptional cases are, by the explicit mandate of
Article 83, to be deemed valid "until declared null and void by a competent
court." It follows that the burden of proof would be, in these cases, on the
party assailing the second marriage. Calrky

In contrast, under the 1988 Family Code, in order that a subsequent bigamous
marriage may exceptionally be considered valid, the following conditions must
concur; viz.: (a) The prior spouse of the contracting party must have been absent
for four consecutive years, or two years where there is danger of death under the
circumstances stated in Article 391 of the Civil Code at the time of
disappearance; (b) the spouse present has a well-founded belief that the absent
spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration
of presumptive death of the absentee for which purpose the spouse present can
institute a summary proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement of judicial
intervention in subsequent marriages as so provided in Article 41, in relation to
Article 40, of the Family Code. Mesm

In the case at bar, it remained undisputed that respondent Marietta's first

husband, James William Bounds, had been absent or had disappeared for more
than eleven years before she entered into a second marriage in 1958 with the
deceased Teodorico Calisterio. This second 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 James Bounds.

The conjugal property of Teodorico and Marietta, no evidence having been

adduced to indicate another property regime between the spouses, pertains to
them in common. Upon its dissolution with the death of Teodorico, the property
should rightly be divided in two equal portions -- one portion going to the
surviving spouse and the other portion to the estate of the deceased spouse. The
successional right in intestacy of a surviving spouse over the net estate of the
deceased, concurring with legitimate brothers and sisters or nephews and nieces
(the latter by right of representation), is one-half of the inheritance, the brothers
and sisters or nephews and nieces, being entitled to the other half. Nephews and
nieces, however, can only succeed by right of representation in the presence of
uncles and aunts; alone, upon the other hand, nephews and nieces can succeed
in their own right which is to say that brothers or sisters exclude nephews and
nieces except only in representation by the latter of their parents who
predecease or are incapacitated to succeed. The appellate court has thus erred
in granting, in paragraph (c) of the dispositive portion of its judgment,
successional rights, to petitioner's children, along with their own mother Antonia
who herself is invoking successional rights over the estate of her deceased
brother. Slx

WHEREFORE, the assailed judgment of the Coin of Appeals in CA G.R. CV No.

51574 is AFFIRMED except insofar only as it decreed in paragraph (c) of the
dispositive portion thereof that the children of petitioner are likewise entitled,
along with her, to the other half of the inheritance, in lieu of which, it is hereby
DECLARED that said one-half share of the decedent's estate pertains solely to
petitioner to the exclusion of her own children. No costs.