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 petition4for 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.
ISSUE:
W/N the petition for the declaration of presumptive death should be granted
RULING:
NO. 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
Notably,
Article 41 of the Family Code, compared to the old provision of the Civil Code
which it superseded, imposes a stricter standard. It requires a
"well-founded belief " that the absentee is already dead before a
petition for declaration of presumptive death can be granted.
In
the case at bar, the respondent’s "well-founded belief" was anchored
on her alleged "earnest efforts" to locate Jerry, which consisted of
the following:
(1)
She made inquiries about Jerry’s whereabouts from her in-laws, neighbors and
friends; and
(2)
Whenever she went to a hospital, she saw to it that she looked through the
patients’ directory, hoping to find Jerry.
These
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. While a finding of well-founded belief varies
with the nature of the situation in which the present spouse is placed, under
present conditions, we find it proper and prudent for a present spouse, whose
spouse had been missing, to seek the aid of the authorities or, at the very
least, report his/her absence to the police.
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.
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