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Technical decision

A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine Star) | August 29, 2012

Under Article 41 of the Family Code, a married person whose spouse has been absent for four
consecutive years can marry again if he/she is able to prove in a summary proceeding filed in court that
his/her spouse has been missing for four years and she/he has a well founded belief that the absent
spouse is already dead. As to what constitutes a “well founded belief” is answered in this case of Yoly.

In 1991, Yoly met Rolly at an electronics company in Parañaque where they were both working. The two
eventually got married on March 3, 1993. Their marriage resulted in the birth of a son.

But sometime in May 1994, the electronics company closed down, forcing Rolly to go to Taiwan to seek
employment there. From that time on, Yoly had not received any communication from her husband
notwithstanding efforts to locate and get in touch with him.

So after nine years of waiting, Yoly filed a petition in the Regional Trial Court (RTC) to have Rolly declared
presumptively dead. In the hearing of the petition, Yoly testified and told the court about Rolly’s leaving
them, going to Taiwan and never heard from again. Her brother likewise testified that he had inquired from
Rolly’s relatives as to his whereabouts but to no avail.

On February 7, 2005, the RTC rendered a decision declaring Rolly as presumptively dead. This decision
was questioned by the Republic of the Philippines, represented by the Office of the Solicitor General
(OSG) by filing a Notice of Appeal to the Court of Appeals after its motion for reconsideration was denied
by the RTC. The OSG contended that Yoly failed to exert earnest efforts to locate Rolly and thus failed to
prove her well founded belief that he was already dead. Was the OSG correct?

Yes. 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
already dead. Whether or not the spouse present acted on a well founded belief of death of the absent
spouse depends upon the inquiries to be drawn from a great many circumstances occurring before and
after the disappearance of the absent spouse and the nature and extent of the inquiries made by the
present spouse.

In this case, Yoly did not initiate a diligent search to locate her absent husband. While her brother testified
to having inquired from the latter’s relatives, these relatives were not presented to corroborate his
testimony. If Yoly were diligent in her search for her husband, she would have sought information from the
Taiwanese Consular Office or assistance from other government agencies in Taiwan or the Philippines.
She could have also utilized mass media for this end, but she did not. Worse, she failed to explain these

Nevertheless, since the petition for declaration of presumptive death is a summary proceeding, the
decision of the RTC is immediately final and executory, and hence, not subject to ordinary appeal. The
attempt to question it through a mere Notice of Appeal is unavailing. The OSG should have filed a Petition
for Certiorari under Rule 65 of the Rules of Court for grave abuse of discretion amounting to lack of
jurisdiction on the part of the RTC.

On technical grounds therefore, Yoly won the case. The RTC decision having become final could no
longer be reversed or modified (Republic vs. Granada, G.R. 187512, June 13, 2012).