FACTS:
Respondent Nilda B. Tampus was married to Dante L. Del Mundo on November 29,
1975. Three days thereafter, or on December 2, 1975, Dante, a member of the AFP,
left respondent, and went to Jolo, Sulu where he was assigned. The couple had
no children. Since then, Nilda heard no news from Dante. She tried everything
to locate him, but her efforts proved futile. On April 14, 2009, she filed
before the RTC a petition 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.
ISSUE:
W/N Dante should be declared presumptively dead
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 4119 of the Family Code of the Philippines (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
"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.
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.
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