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G.R. No. 184621 December 10, 2013 The petitioner brought the matter via a Rule 45 petition before this Court. The Petition
REPUBLIC OF THE PHILIPPINES, Petitioner, The petitioner contends that certiorari lies to challenge the decisions, judgments or final
vs. orders of trial courts in petitions for declaration of presumptive death of an absent spouse
MARIA FE ESPINOSA CANTOR, Respondent. 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
DECISION
immediately final and executory (hence, not appeal able under Article 247 of the Family
BRION, J.: Code), this rule does not mean that they are not subject to review on certiorari.
The petition for review on certiorari1 before us assails the decision2 dated August 27, 2008 The petitioner also posits that the respondent did not have a well-founded belief to justify
of the Court of Appeals (CA) in CA-G.R. SP No. 01558-MIN which affirmed be order3 dated the declaration of her husband’s presumptive death. It claims that the respondent failed
December 15, 2006 of the Regional Trial Court (RTC), Branch 25, Koronadal City, South to conduct the requisite diligent search for her missing husband. Likewise, the petitioner
Cotabato, in SP Proc. Case No. 313-25, declaring Jerry F. Cantor, respondent Maria Fe invites this Court’s attention to the attendant circumstances surrounding the case,
Espinosa Cantor’s husband, presumptively dead under Article 41 of the Family Code. particularly, the degree of search conducted and the respondent’s resultant failure to meet
The Factual Antecedents the strict standard under Article 41 of the Family Code.
The respondent and Jerry were married on September 20, 1997. They lived together as The Issues
husband and wife in their conjugal dwelling in Agan Homes, Koronadal City, South The petition poses to us the following issues:
Cotabato. Sometime in January 1998, the couple had a violent quarrel brought about by:
(1) Whether certiorarilies to challenge the decisions, judgments or final orders of trial
(1) the respondent’s inability to reach "sexual climax" whenever she and Jerry would have
courts in petitions for declaration of presumptive death of an absent spouse under Article
intimate moments; and (2) Jerry’s expression of animosity toward the respondent’s father.
41 of the Family Code; and
After their quarrel, Jerry left their conjugal dwelling and this was the last time that the
(2) Whether the respondent had a well-founded belief that Jerry is already dead.
respondent ever saw him. Since then, she had not seen, communicated nor heard anything
from Jerry or about his whereabouts. The Court’s Ruling
On May 21, 2002, or more than four (4) years from the time of Jerry’s disappearance, the We grant the petition.
respondent filed before the RTC a petition4for her husband’s declaration of presumptive a. On the Issue of the Propriety of Certiorari as a Remedy
death, docketed as SP Proc. Case No. 313-25. She claimed that she had a well-founded Court’s Judgment in the Judicial Proceedings for Declaration of
belief that Jerry was already dead. She alleged that she had inquired from her mother-in- Presumptive Death Is Final and Executory, Hence, Unappealable
law, her brothers-in-law, her sisters-in-law, as well as her neighbors and friends, but to no
The Family Code was explicit that the court’s judgment in summary proceedings, such as
avail. In the hopes of finding Jerry, she also allegedly made it a point to check the patients’
the declaration of presumptive death of an absent spouse under Article 41 of the Family
directory whenever she went to a hospital. All these earnest efforts, the respondent
Code, shall be immediately final and executory.
claimed, proved futile, prompting her to file the petition in court.
Article 41,in relation to Article 247, of the Family Code provides:
The Ruling of the RTC
Art. 41. A marriage contracted by any person during subsistence of a previous marriage
After due proceedings, the RTC issued an order granting the respondent’s petition and
shall be null and void, unless before the celebration of the subsequent marriage, the prior
declaring Jerry presumptively dead. It concluded that the respondent had a well-founded
spouse had been absent for four consecutive years and the spouse present has a well-
belief that her husband was already dead since more than four (4) years had passed
founded belief that the absent spouse was already dead. In case of disappearance where
without the former receiving any news about the latter or his whereabouts. The
there is danger of death under the circumstances set forth in the provisions of Article 391
dispositive portion of the order dated December 15, 2006 reads:
of the Civil Code, an absence of only two years shall be sufficient.
WHEREFORE, the Court hereby declares, as it hereby declared that respondent Jerry F.
For the purpose of contracting the subsequent marriage under the preceding paragraph
Cantor is presumptively dead pursuant to Article 41 of the Family Code of the Philippines
the spouse present must institute a summary proceeding as provided in this Code for the
without prejudice to the effect of the reappearance of the absent spouse Jerry F. Cantor. 5
declaration of presumptive death of the absentee, without prejudice to the effect of
The Ruling of the CA reappearance of the absent spouse.
The case reached the CA through a petition for certiorari6filed by the petitioner, Republic Art. 247. The judgment of the court shall be immediately final and executory. [underscores
of the Philippines, through the Office of the Solicitor General (OSG). In its August 27, 2008 ours]
decision, the CA dismissed the petitioner’s petition, finding no grave abuse of discretion
With the judgment being final, it necessarily follows that it is no longer subject to an
on the RTC’s part, and, accordingly, fully affirmed the latter’s order, thus:
appeal, the dispositions and conclusions therein having become immutable and
WHEREFORE, premises foregoing (sic), the instant petition is hereby DISMISSED and the unalterable not only as against the parties but even as against the courts. 8 Modification of
assailed Order dated December 15, 2006 declaring Jerry F. Cantor presumptively dead is the court’s ruling, no matter how erroneous is no longer permissible. The final and
hereby AFFIRMED in toto.7 executory nature of this summary proceeding thus prohibits the resort to appeal. As
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explained in Republic of the Phils. v. Bermudez-Lorino,9 the right to appeal is not granted to "ART.247. The judgment of the court shall be immediately final and executory."
parties because of the express mandate of Article 247 of the Family Code, to wit: By express provision of law, the judgment of the court in a summary proceeding shall be
In Summary Judicial Proceedings under the Family Code, there is no reglementary period immediately final and executory. As a matter of course, it follows that no appeal can be
within which to perfect an appeal, precisely because judgments rendered thereunder, by had of the trial court's judgment ina summary proceeding for the declaration of
express provision of [Article] 247, Family Code, supra, are "immediately final and presumptive death of an absent spouse under Article 41 of the Family Code. It goes
executory." It was erroneous, therefore, on the part of the RTCto give due course to the without saying, however, that an aggrieved party may file a petition for certiorari to
Republic’s appeal and order the transmittal of the entire records of the case to the Court question abuse of discretion amounting to lack of jurisdiction. Such petition should be filed
of Appeals. in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To be sure,
An appellate court acquires no jurisdiction to review a judgment which, by express even if the Court's original jurisdiction to issue a writ of certiorari is concurrent with the
provision of law, is immediately final and executory. As we have said in Veloria vs. RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an
Comelec, "the right to appeal is not a natural right nor is it a part of due process, for it is unrestricted freedom of choice of court forum. [emphasis ours]
merely a statutory privilege." Since, by express mandate of Article 247 of the Family Code, Viewed in this light, we find that the petitioner’s resort to certiorari under Rule 65 of the
all judgments rendered in summary judicial proceedings in Family Law are "immediately Rules of Court to question the RTC’s order declaring Jerry presumptively dead was proper.
final and executory," the right to appeal was not granted to any of the parties therein. The b. On the Issue of the Existence of Well-Founded Belief
Republic of the Philippines, as oppositor in the petition for declaration of presumptive
death, should not be treated differently. It had no right to appeal the RTC decision of The Essential Requisites for the Declaration of Presumptive Death
Under Article 41 of the Family Code
November 7, 2001. [emphases ours; italics supplied]
Certiorari Lies to Challenge the Decisions, Judgments or Final 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
Orders of Trial Courts in a Summary Proceeding for the Declaration of Presumptive
well-founded belief that the prior spouse was already dead. Under Article 41 of the Family
Death Under the Family Code
Code, there are four (4) essential requisites for the declaration of presumptive death:
A losing party in this proceeding, however, is not entirely left without a remedy. While
1. That the absent spouse has been missing for four consecutive years, or two consecutive
jurisprudence tells us that no appeal can be made from the trial court's judgment, an
years if the disappearance occurred where there is danger of death under the
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 circumstances laid down in Article 391, Civil Code;
that transpired. 2. That the present spouse wishes to remarry;
As held in Delos Santos v. Rodriguez, et al.,10
the fact that a decision has become final does 3. That the present spouse has a well-founded belief that the absentee is dead; and
not automatically negate the original action of the CA to issue certiorari, prohibition and 4. That the present spouse files a summary proceeding for the declaration of presumptive
mandamus in connection with orders or processes issued by the trial court. Certiorari may death of the absentee.12
be availed of where a court has acted without or in excess of jurisdiction or with grave The Present Spouse Has the Burden of Proof to Show that All the
abuse of discretion, and where the ordinary remedy of appeal is not available. Such a
Requisites Under Article 41 of the Family Code Are Present
procedure finds support in the case of Republic v. Tango,11 wherein we held that:
The burden of proof rests on the present spouse to show that all the requisites under
This case presents an opportunity for us to settle the rule on appeal of judgments rendered
Article 41 of the Family Code are present. Since it is the present spouse who, for purposes
in summary proceedings under the Family Code and accordingly, refine our previous of declaration of presumptive death, substantially asserts the affirmative of the issue, it
decisions thereon. stands to reason that the burden of proof lies with him/her. He who alleges a fact has the
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE burden of proving it and mere allegation is not evidence.13
FAMILY LAW, establishes the rules that govern summary court proceedings in the Family
Declaration of Presumptive Death under Article 41 of the Family Code
Code: Imposes a Stricter Standard
"ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall
Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code
apply in all cases provided for in this Code requiring summary court proceedings. Such which it superseded, imposes a stricter standard. It requires a "well-founded belief " that
cases shall be decided in an expeditious manner without regard to technical rules." the absentee is already dead before a petition for declaration of presumptive death can be
In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters granted. We have had occasion to make the same observation in Republic v.
two and three of the same title. It states: Nolasco,14 where we noted the crucial differences between Article 41 of the Family Code
"ART. 253. The foregoing rules in Chapters 2and 3 hereof shall likewise govern summary and Article 83 of the Civil Code, to wit:
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are Under Article 41, the time required for the presumption to arise has been shortened to
applicable."(Emphasis supplied.) four (4) years; however, there is need for a judicial declaration of presumptive death to
In plain text, Article 247 in Chapter 2 of the same title reads: 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
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that there be no news that such absentee is still alive; or the absentee is generally drawn from a great many circumstances occurring before and after the disappearance of
considered to be dead and believed to be so by the spouse present, or is presumed dead the absent spouse and the nature and extent of the inquiries made by [the] present
under Articles 390 and 391 of the Civil Code. The Family Code, upon the other hand, spouse.18
prescribes as "well founded belief" that the absentee is already dead before a petition for ii. Republic v. Granada19
declaration of presumptive death can be granted.
Similarly in Granada, the Court ruled that the absent spouse failed to prove her "well-
Thus, mere absence of the spouse (even for such period required by the law), lack of any founded belief" that her absent spouse was already dead prior to her filing of the petition.
news that such absentee is still alive, failure to communicate or general presumption of In this case, the present spouse alleged that her brother had made inquiries from their
absence under the Civil Code would not suffice. This conclusion proceeds from the premise relatives regarding the absent spouse’s whereabouts. The present spouse did not report
that Article 41 of the Family Code places upon the present spouse the burden of proving to the police nor seek the aid of the mass media. Applying the standards in Republic of the
the additional and more stringent requirement of "well-founded belief" which can only be Philippines v. Court of Appeals (Tenth Div.),20 the Court ruled against the present spouse, as
discharged upon a showing of proper and honest-to-goodness inquiries and efforts to follows:
ascertain not only the absent spouse’s whereabouts but, more importantly, that the absent
Applying the foregoing standards to the present case, petitioner points out that
spouse is still alive or is already dead.15
respondent Yolanda did not initiate a diligent search to locate her absent husband. While
The Requirement of Well-Founded Belief her brother Diosdado Cadacio testified to having inquiredabout the whereabouts of Cyrus
The law did not define what is meant by "well-founded belief." It depends upon the from the latter’s relatives, these relatives were not presented to corroborate Diosdado’s
circumstances of each particular case. Its determination, so to speak, remains on a case- testimony. In short, respondent was allegedly not diligent in her search for her husband.
to-case basis. To be able to comply with this requirement, the present spouse must prove Petitioner argues that if she were, she would have sought information from the Taiwanese
that his/her belief was the result of diligent and reasonable efforts and inquiries to locate Consular Office or assistance from other government agencies in Taiwan or the
the absent spouse and that based on these efforts and inquiries, he/she believes that under Philippines. She could have also utilized mass media for this end, but she did not. Worse,
the circumstances, the absent spouseis already dead. It requires exertion of active effort she failed to explain these omissions.
(not a mere passive one). iii.Republic v. Nolasco21
To illustrate this degree of "diligent and reasonable search" required by the law, an In Nolasco, the present spouse filed a petition for declaration of presumptive death of his
analysis of the following relevant cases is warranted: wife, who had been missing for more than four years. He testified that his efforts to find
i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16 her consisted of:
In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court ruled that the (1) Searching for her whenever his ship docked in England;
present spouse failed to prove that he had a well-founded belief that his absent spouse (2) Sending her letters which were all returned to him; and
was already dead before he filed his petition. His efforts to locate his absent wife allegedly
(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless. The
consisted of the following:
Court ruled that the present spouse’s investigations were too sketchy to form a basis that
(1) He went to his in-laws’ house to look for her; his wife was already dead and ruled that the pieces of evidence only proved that his wife
(2) He sought the barangay captain’s aid to locate her; had chosen not to communicate with their common acquaintances, and not that she was
(3) He went to her friends’ houses to find her and inquired about her whereabouts among dead.
his friends; iv.The present case
(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during In the case at bar, the respondent’s "well-founded belief" was anchored on her alleged
his free time; "earnest efforts" to locate Jerry, which consisted of the following:
(5) He went back to Catbalogan and again looked for her; and (1) She made inquiries about Jerry’s whereabouts from her in-laws, neighbors and friends;
(6) He reported her disappearance to the local police station and to the NBI. and
Despite these alleged "earnest efforts," the Court still ruled against the present spouse. The (2) Whenever she went to a hospital, she saw to it that she looked through the patients’
Court found that he failed to present the persons from whom he allegedly made inquiries directory, hoping to find Jerry.
and only reported his wife’s absence after the OSG filed its notice to dismiss his petition in These efforts, however, fell short of the "stringent standard" and degree of diligence
the RTC. required by jurisprudence for the following reasons:
The Court also provided the following criteria for determining the existence of a "well- First, the respondent did not actively look for her missing husband. It can be inferred from
founded belief" under Article 41 of the Family Code: the records that her hospital visits and her consequent checking of the patients’ directory
The belief of the present spouse must be the result of proper and honest to goodness therein were unintentional. She did not purposely undertake a diligent search for her
inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the husband as her hospital visits were not planned nor primarily directed to look for him.
absent spouse is still alive or is already dead. Whether or not the spouse present acted on This Court thus considers these attempts insufficient to engender a belief that her husband
a well-founded belief of death of the absent spouse depends upon the inquiries to be is dead.
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Second, she did not report Jerry’s absence to the police nor did she seek the aid of the [The]protection of the basic social institutions of marriage and the family in the
authorities to look for him. While a finding of well-founded belief varies with the nature of preservation of which the State has the strongest interest; the public policy here involved
the situation in which the present spouse is placed, under present conditions, we find it is of the most fundamental kind. In Article II, Section 12 of the Constitution there is set
proper and prudent for a present spouse, whose spouse had been missing, to seek the aid forth the following basic state policy:
of the authorities or, at the very least, report his/her absence to the police. The State recognizes the sanctity of family life and shall protect and strengthen the family
Third, she did not present as witnesses Jerry’s relatives or their neighbors and friends, as a basic autonomous social institution.
who can corroborate her efforts to locate Jerry. Worse, these persons, from whom she Strict Standard Prescribed Under Article 41 of the Family Code
allegedly made inquiries, were not even named. As held in Nolasco, the present spouse’s Is for the Present Spouse’s Benefit
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 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
in the testimony nor presented as witnesses.
present spouse's benefit. It is intended to protect him/her from a criminal prosecution of
Lastly, there was no other corroborative evidence to support the respondent’s claim that bigamy under Article 349 of the Revised Penal Code which might come into play if he/she
she conducted a diligent search. Neither was there supporting evidence proving that she would prematurely remarry sans the court's declaration.
had a well-founded belief other than her bare claims that she inquired from her friends
Upon the issuance of the decision declaring his/her absent spouse presumptively dead,
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 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
inquiries from her in-laws, neighbors and friends. She failed to conduct a diligent search
his/her criminal intent in case of remarriage is effectively negated. 28 Thus, for purposes of
because her alleged efforts are insufficient to form a well-founded belief that her husband
was already dead. As held in Republic of the Philippines v. Court of Appeals (Tenth remarriage, it is necessary to strictly comply with the stringent standard and have the
absent spouse judicially declared presumptively dead.
Div.),22 "[w]hether 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 Final Word
occurring before and after the disappearance of the absent spouse and the natureand As a final word, it has not escaped this Court's attention that the strict standard required
extent of the inquiries made by [the] present spouse." in petitions for declaration of presumptive death has not been fully observed by the lower
Strict Standard Approach Is Consistent with the State’s Policy courts. We need only to cite the instances when this Court, on review, has consistently
to Protect and Strengthen Marriage 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
In the above-cited cases, the Court, fully aware of the possible collusion of spouses in
nullifying their marriage, has consistently applied the "strictstandard" approach. This is to put on notice of the strict standard this Court requires in cases under Article 41 of the
Family Code.
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 WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of the
procedural shortcuts and should ensure that the stricter standard required by the Family Court of Appeals, which affirmed the order dated December 15, 2006 of the Regional Trial
Code is met. In Republic of the Philippines v. Court of Appeals (Tenth Div.),23 we emphasized Court, Branch 25, Koronadal City, South Cotabato, declaring Jerry F. Cantor presumptively
that: dead is hereby REVERSED and SET ASIDE.
In view of the summary nature of proceedings under Article 41 of the Family Code for the SO ORDERED.
declaration of presumptive death of one’s spouse, the degree of due diligence set by this
Honorable Court in the above-mentioned cases in locating the whereabouts of a missing
CONCURRING OPINION
spouse must be strictly complied with. There have been times when Article 41 of the
Family Code had been resorted to by parties wishing to remarry knowing fully well that
their alleged missing spouses are alive and well. It is even possible that those who cannot VELASCO, JR., J.:
have their marriages xxx declared null and void under Article 36 of the Family Code resort I vote for the granting of the petition.
to Article 41 of the Family Code for relief because of the xxx summary nature of its
The facts of this case are simple. Sometime in January 1998, Jerry F. Cantor (Jerry) left his
proceedings.
wife, Maria Fe Espinosa Cantor (Maria Fe), after a violent quarrel. Since then, Maria had
The application of this stricter standard becomes even more imperative if we consider the not seen or heard from him.
State’s policy to protect and strengthen the institution of marriage. 24 Since marriage
After more than four (4) years of not seeing or hearing from Jerry, Maria Fe filed a petition
serves as the family’s foundation25 and since it is the state’s policy to protect and
for the declaration of presumptive death of her husband with the Regional Trial Court,
strengthen the family as a basic social institution,26 marriage should not be permitted to
Branch 25, Koronadal City, South Cotabato (RTC). In sum, Maria Fe alleged that she
be dissolved at the whim of the parties. In interpreting and applying Article 41, this is the
conducted a diligent search for her husband and exerted earnest efforts to find him. She
underlying rationale –to uphold the sanctity of marriage. Arroyo, Jr.v. Court of
allegedly inquired from her mother-in-law, brothers-in-law, sisters-in-law, neighbors, and
Appeals27 reflected this sentiment when we stressed:
friends but no one could tell her where Jerry was. Whenever she went to a hospital, she
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made it a point to look through the patients' directory, hoping to find Jerry. On the basis of station and the National Bureau of Investigation. Despite these efforts, this Court held that
the foregoing, Maria Fe claimed that she had a well-founded belief that her husband, Jerry, Alegro failed to prove that he had a well-founded belief, before he filed his petition in the
was already dead. RTC, that his spouse was already dead. The Court explained:
The RTC granted her petition and thus declared Jerry as presumptively dead pursuant to In this case, the respondent failed to present a witness other than Barangay Captain Juan
Article 41 of the Family Code. The Court of Appeals affirmed in to to the RTC Decision and Magat. The respondent even failed to present Janeth Bautista or Nelson Abaenza or any
held that there had been no grave abuse of discretion on the part of the R TC in having other person from whom he allegedly made inquiries about Lea to corroborate his
declared Jerry presumptively dead. Dissatisfied with the ruling of the Court of Appeals testimony. On the other hand, the respondent admitted that when he returned to the house
(CA), the Office of the Solicitor General (OSG) filed the present Petition for Review on of his parents-in-law on February 14, 1995, his father-in-law told him that Lea had just
Certiorari under Rule 45 of the Rules of Civil Procedure arguing that Maria Fe did not have been there but that she left without notice.
a well-founded belief that Jerry was dead. The respondent declared that Lea left their abode on February 7, 1995 after he chided her
I fully agree that whether or not one has a "well-founded belief' that his or her spouse is for coming home late and for being always out of their house, and told her that it would be
dead depends on the unique circumstances of each case and that there is no set standard better for her to go home to her parents if she enjoyed the life of a single person. Lea, thus,
or procedure in determining the same. It is my opinion that Maria Fe failed to conduct a left their conjugal abode and never returned. Neither did she communicate with the
search with such diligence as to give rise to a "well-founded belief' that her husband is respondent after leaving the conjugal abode because of her resentment to the
dead. Further, the circumstances of Jerry's departure and Maria Fe's behavior after he left chastisement she received from him barely a month after their marriage. What is so
make it difficult to consider her belief a well-founded one. worrisome is that, the respondent failed to make inquiries from his parents-in-law
To reiterate, Maria Fe's alleged "well-founded" belief arose when: (1) Jerry's relatives and regarding Lea’s whereabouts before filing his petition in the RTC. It could have enhanced
friends could not give her any information on his whereabouts; and (2) she did not find the credibility of the respondent had he made inquiries from his parents-in-law about
Jerry’s name in the patients’ directory whenever she went to a hospital. To my mind, Maria Lea’s whereabouts considering that Lea’s father was the owner of Radio DYMS. The
Fe’s reliance on these alone makes her belief weak and flimsy rather than "well-founded." respondent did report and seek the help of the local police authorities and the NBI to locate
Lea, but it was only an afterthought. He did so only after the OSG filed its notice to dismiss
Further, it appears that Maria Fe did not actively look for her husband in hospitals and
his petition in the RTC.2
that she searched for Jerry’s name in these hospitals’ list of patients merely as an
afterthought. Moreover, it may be sensed from the given facts that her search was not Similarly, in Republic v. Nolasco,3 this Court ruled in favor of the Republic and agreed with
intentional or planned. This may be noted from the fact that whenever Maria Fewent to a the position of the OSG that the respondent therein failed to establish that he had a well-
hospital, she made it a point to look through the patients’ directory, hoping to find Jerry. founded belief that his absent wife was dead. In this case, Nolasco, who was a seaman,
Verily, it is as if she searched the patient’s directory only when she was in a hospital by went back home to Antique upon learning that his wife left their conjugal abode. He
coincidence. testified that no one among their friends could tell him where his wife was. He claimed
that his efforts to look for her whenever his ship docked in England proved fruitless and
Maria Fe’s search for Jerry was far from diligent. At the very least, Maria Fe should have
also stated that all the letters he had sent to his missing spouse at an address in Liverpool,
looked for Jerry in the places he frequented. Moreover, she should have sought the England, the address of the bar where they met, were all returned to him. This Court
assistance of the barangay or the police in searching for her husband, like what could be
believed that Nolasco failed to conduct a search for his missing wife with such diligence as
reasonably expected of any person with a missing spouse or loved one. These very basic
to give rise to a "well-founded belief" that she is dead. In the said case, it was held:
things, she did not do. It may have been advantageous, too, if Maria Fe approached the
media for help or posted photos of Jerry in public places with requests for information on In the case at bar, the Court considers that the investigation allegedly conducted by
his whereabouts. While I agree that We cannot ask the impossible from a spouse who was respondent in his attempt to ascertain Janet Monica Parker’s whereabouts is too sketchy
abandoned, it is not too much to expect the foregoing actions from someone who has lost to form the basis of a reasonable or well-founded belief that she was already dead. When
a spouse. he arrived in San Jose, Antique after learning of Janet Monica’s departure, instead of
seeking the help of local authorities or of the British Embassy, he secured another
This Court has been consistent in its strict application of Article 41 ofthe Family Code. This
seaman’s contract and went to London, a vast city of many millions of inhabitants, to look
is clear in the cases cited in the ponencia where the Court, notwithstanding the evidence for her there.
on the efforts of the present spouse to search for the absent spouse, still found that the
present spouse’s search was not diligent enough andthat the said spouse failed to prove "Q:After arriving here in San Jose, Antique, did you exert efforts to inquire the
that he or she had a well-founded belief that the absent spouse was already dead. I would whereabouts of your wife:
like to share my observation that compared to Maria Fe, the present spouses in the said A:Yes, Sir.
cases exerted similar, or if not, even more effort in their searches, and presented similar Court:
evidence to prove the same. Yet, the Court found their efforts and evidence wanting. How did you do that?
For instance, in Republic v. Court of Appeals and Alegro,1 respondent Alegro testified that A:I secured another contract with the ship and we had a trip to London and I went to
when his wife Lea wentmissing, he asked Lea’s parents as well as their friends if they knew London to look for her I could not find her(sic)."
where she was. He stated that he went to Manila to search for her among her friends and
would even look for her in malls. Alegro reported Lea’s disappearance to the local police
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Respondent’s testimony, however, showed that he confused London for Liverpool and this The RTC ruling on the issue of whether respondent was able to prove her "well-founded
casts doubt on his supposed efforts to locate his wife in England. The Court of Appeals’ belief' that her absent spouse was already dead prior to her filing of the Petition to declare
justification of the mistake, to wit: him presumptively dead is already final and can no longer be modified or reversed. Indeed,
". . . Well, while the cognoscente (sic) would readily know the geographical difference "[n]othing is more settled in law than that when a judgment becomes final and executory,
between London and Liverpool, for a humble seaman like Gregorio the two places could it becomes immutable and unalterable. The same may no longer be modified in any
mean one —place in England, the port where his ship docked and where he found Janet. respect, even if the modification is meant to correct what is perceived to be an erroneous
Our own provincial folks, every time they leave home to visit relatives in Pasay City, conclusion of fact or law."5
Kalookan City. or Parañaque, would announce to friends and relatives, ‘We’re going to Were it not for the finality of the RTC ruling, the declaration of presumptive death should
Manila.’This apparent error in naming of places of destination does not appear to be fatal," have been recalled and set aside for utter lack of factual basis.
is not well taken. There is no analogy between Manila and its neighboring cities, on one It is the policy of the State to protect and preserve marriage. Courts should be ever mindful
hand, and London and Liverpool, on the other, which, as pointed out by the Solicitor- of this policy and, hence, must exercise prudence in evaluating petitions for declaration of
General, are around three hundred fifty (350) kilometers apart. We do not consider that presumptive death of an absent spouse. Otherwise, spouses may easily circumvent the
walking into a major city like Liverpool or London with a simple hope of somehow policy of the laws on marriage by simply agreeing that one of them leave the conjugal
bumping into one particular person there —which is in effect what Nolasco says he did — abode and never return again.
can be regarded as a reasonably diligent search.
The Court also views respondent’s claim that Janet Monica declined to give any DISSENTING OPINION
information as to her personal background even after she had married respondent too
convenient an excuse to justify his failure to locate her. The same can be said of the loss of LEONEN, J.:
the alleged letters respondent had sent to his wife which respondent claims were all "Love cannot endure indifference. It needs to be wanted. Like a lamp it needs to be fed out
returned to him. Respondent said he had lost these returned letters, under unspecified of the oil of another’s heart or its flames burn low."
circumstances. Neither can this Court give much credence to respondent’s bare assertion Henry Ward Beecher
that he had inquired from their friends of her whereabouts, considering that respondent I dissent.
did not identify those friends in his testimony. The Court of Appeals ruled that since the
prosecutor failed to rebut this evidence during trial, it is good evidence. But this kind of A wife, abandoned with impunity, also deserves to be happy.
evidence cannot, by its nature, be rebutted. In any case, admissibility is not synonymous The Case
with credibility. As noted before, there are serious doubts to respondent’s credibility. Through this Rule 45 petition for review on certiorari, the Office of the Solicitor General
Moreover, even if admitted as evidence, said testimony merely tended to show that the for the Republic of the Philippines prays that the decision 1 of the Court of Appeals be
missing spouse had chosen not to communicate with their common acquaintances, and reversed and set aside and that a new judgment be entered annulling and setting aside the
not that she was dead. order2 of the Regional Trial Court, Branch 25, Koronadal City, South Cotabato.
Also, in Republic v. Granada,4 while the Court denied the petition of the OSG on procedural On May 21, 4002, Maria Fe Espinosa Cantor filed a petition3 for the declaration of
grounds and consequently upheld the declaration of presumptive death of the missing presumptive death of her husband, Jerry F. Cantor.4 She claimed that she had a well-
husband, this Court agreed with the OSG’s assertion that the respondent therein was not founded belief that her husband was already dead since four ( 4) years had lapsed without
diligent in her search for her husband when she, just like Maria Fe in this case, merely Jerry making his presence known to her.
inquired about the whereabouts of his spouse from the latter’s relatives and failed to seek
Trial began after the Regional Trial Court found Maria Fe’s petition sufficient in form and
information and assistance from government agencies and the mass media. The Court
substance.
held:
According to their Certificate of Marriage,5 Maria Fe and Jerry were married on September
Applying the foregoing standards to the present case, petitioner points out that
20, 1997 at the Christ the King Cathedral in Koronadal City, South Cotabato. They lived
respondent Yolanda did not initiate a diligent search to locate her absent husband. While
together in their conjugal dwelling in Agan Homes, Koronadal City, South Cotabato. 6
her brother Diosdado Cadacio testified to having inquired about the whereabouts of Cyrus
from the latter's relatives, these relatives were not presented to corroborate Diosdado's In her petition, Maria Fe alleges that sometime in January 1998, she and Jerry had a violent
testimony. In short, respondent was allegedly not diligent in her search for her husband. quarrel in their house. During the trial, she admitted that the quarrel had to do with her
Petitioner argues that if she were, she would have sought information from the Taiwanese not being able to reach her "climax" whenever she would have sexual intercourse with
Consular Office or assistance from other government agencies in Taiwan or the Jerry. Maria Fe emphasized that she even suggested to him that he consult a doctor, but
Philippines. She could have also utilized mass media for this end, but she did not. Worse, Jerry brushed aside this suggestion. She also said that during the quarrel, Jerry had
she failed to explain these omissions. expressed animosity toward her father, saying "I will not respect that old man outside."7
The Republic's arguments are well-taken. Nevertheless, we are constrained to deny the Jerry left after their quarrel.8Since then, Maria Fe had not seen or heard from him. On May
Petition. 21, 2002 after more than four (4) years without word from Jerry, Maria Fe filed her
petition with the Regional Trial Court.
 7

Maria Fe exerted "earnest efforts x x x to locate the whereabouts or actual address of The Office of the Solicitor General likewise argued that Maria Fe did not have a well-
[Jerry]."9 She inquired from her mother-in-law, brothers-in-law, sisters-in-law, neighbors, founded belief that Jerry was dead. It claimed that she failed to conduct a diligent search
and friends, but no one could tell her where Jerry had gone. 10 Whenever she went to a for her missing husband. Its theory was that Jerry consciously chose not to return to their
hospital, she would check the patients’ directory, hoping to find Jerry. 11 conjugal home and that he chose not to communicate with Maria Fe. The Office of the
On December 15, 2006, the Regional Trial Court issued an order granting her petition Solicitor General claimed that it was possible that Jerry did not want to be found and that
declaring Jerry presumptively dead. The Regional Trial Court agreed that she had a well- he chose to live in a place where even his family and friends could not reach him. From the
founded belief that Jerry was dead. It declared that Jerry had not been heard from and his perspective of the Office of the Solicitor General, it was Jerry’s choice to disappear; thus,
fate uncertain and whereabouts unknown for more than four (4) years at the time Maria in all likelihood, he was not dead.
Fe’s petition was filed. When the Regional Trial Court issued its order, Jerry had been The Office of the Solicitor General claimed that Article 41 of the Family Code requires more
absent for eight (8) years. than the absence of the missing spouse for him or her to be declared presumptively dead.
The fallo of the Regional Trial Court’s order12 reads: There must be events, circumstances, and reasons sufficient in themselves to at least
support the proposition that the absentee spouse is already dead. Absence per se is not
WHEREFORE, the Court hereby declares, as it hereby declared [sic]that respondent Jerry
enough.
F. Cantor is presumptively dead pursuant to Article 41 of the Family Codeof the Philippines
without prejudice to the effect of the reappearance of the absent spouse Jerry F. Cantor. 13 The Office of the Solicitor General capitalized on the failure of Maria Fe to give the names
of relatives and friends she had approached when she testified. It asserted that she failed
Not satisfied with the Regional Trial Court’s order, the Republic of the Philippines through to present them at the witness stand.17Moreover, the Office of the Solicitor General
the Office of the Solicitor General filed a petition for certiorari with the Court of Appeals.
assailed the description of her husband as "not really healthy" when he left the conjugal
In a decision dated August 27, 2008, the Court of Appeals affirmed in toto the Regional dwelling. It characterized this description as being "too vague to even support the
Trial Court’s order dated December 15, 2006. The Court of Appeals held that there was no speculation that Jerry is already dead."18
grave abuse of discretion on the part of the Regional Trial Court in having declared Jerry
On June 26, 2009, Maria Fe filed her comment on the Office of the Solicitor General’s
presumptively dead. The Court of Appeals also emphasized "that by express mandate of
petition. She argued that there was no factual or legal basis for the Office of the Solicitor
Article 247 of the Family Code, all judgments rendered in summary judicial proceedings
General to seek a reversal of the Court of Appeal’s decision. She asserted that the
in Family Law are ‘immediately final and executory’ upon notice to the parties; hence, no declaration of Jerry’s death was in order as it was in accord or consistent with established
longer appealable."14
facts, as well as with law and jurisprudence on the matter.
Still dissatisfied with the ruling of the Court of Appeals, the Office of the Solicitor General
This court is asked to decide on the following issues:
filed the present petition for review on certiorari under Rule 45 of the Rules of Civil
Procedure. 1. Whether certiorari lies to challenge decisions, judgments or final orders oftrial
courts in petitions for the declaration of presumptive death of a missing person
The Office of the Solicitor General argued that a petition for certiorari lies to challenge or absent spouse; and
decisions, judgments or final orders of trial courts in petitions for the declaration of
presumptive death of a missing or absent spouse. The Office of the Solicitor General agreed 2. Whether Maria Fe hasa well-founded belief that Jerry is already dead.
that under Article 247 of the Family Code, decisions and final orders of trial courts in Certiorari lies as a remedy to annul the judgment of a trial court in summary
petitions for the declaration of the presumptive death of a missing or absent spouse are proceedings for the declaration of presumptive death of an absent spouse.
immediately final and executory, and therefore, cannot be appealed. However, the Office I agree that certiorari lies as a remedy to annul a judgment in proceedings for the
of the Solicitor General disagreed with the assertion that judgments or decisions in these declaration of presumptive death of an absent spouse where grave abuse of discretion
cases canno longer be reviewed by the higher courts. It maintained that even though amounting to lack or excess of jurisdiction on the part of the Regional Trial Court is clearly
judgments or final ordersin summary judicial proceedings such as presumptive death and convincingly shown.
cases are no longer appealable, they may still be reviewed by the Court of Appeals, and,
A petition for the declaration of presumptive death of an absent spouse for the purpose of
ultimately, by this court.15
contracting a subsequent marriage is a summary proceeding. Article 41 of the Family Code
The Office of the Solicitor General pointed out that "appeal" and "certiorari" are not is clear on this point:
synonymous remedies. By filing a petition for certiorari before the Court of Appeals, it
Art. 41. A marriage contracted by any person during subsistence of a previous marriage
could not be considered to have "appealed" the challenged order of the Regional Trial
shall be null and void, unless before the celebration of the subsequent marriage, the prior
Court. A petition for certiorari under Rule 65 is not, in its strict sense, an appeal. It is an
spouse had been absent for four consecutive years and the spouse present has a well-
original action and a mode of review under which the Court of Appeals may re-examine
the challenged order to determine whether it was rendered in accordance with law and 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
established jurisprudence. Hence, judgments of trial courts in presumptive death cases are
not immutable because such decisions may be reviewed by higher courts. The only of the Civil Code, an absence of only two years shall be sufficient.
possible recourse of a losing party in summary judicial proceedings is a petition For the purpose of contracting the subsequent marriage under the preceding paragraph
for certiorari under Rule 65.16 the spouse present must institute a summary proceeding as provided in this Code for the
 8

declaration of presumptive death of the absentee, without prejudice to the effect of question abuse of discretion amounting to lack of jurisdiction. Such petition should be filed
reappearance of the absent spouse. in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To be sure,
Articles 238, 247,and 252 of Title XI of the Family Code (Summary Judicial Proceedings in even if the Court's original jurisdiction to issue a writ of certiorari is concurrent with the
the Family Law) provide: RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an
unrestricted freedom of choice of court forum. From the decision of the Court of Appeals,
Art. 238. Until modified by the Supreme Court, the procedural rules provided for in this
the losing party may then file a petition for review on certiorariunder Rule 45 of the Rules
Title shall apply as regards separation in fact between husband and wife, abandonment by
of Court with the Supreme Court. This is because the errors which the court may commit
one of the other, and incidents involving parental authority. in the exercise of jurisdiction are merely errors of judgment which are the proper subject
Art. 247.The judgment of the court shall be immediately final and executory. of an appeal."
Art. 252.The rules in Chapter 2 hereof shall also govern summary proceedings under this In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for
Chapter insofar as they are applicable. (n) the declaration of presumptive death may file a petition for certiorari with the CA on the
From these provisions, it is clear that a petition for the declaration of presumptive death ground that, in rendering judgment thereon, the trial court committed grave abuse of
of an absent spouse is a summary proceeding; more so, judgments of a trial court relating discretion amounting to lack of jurisdiction. From the decision of the CA, the aggrieved
to such petitions shall be considered immediately final and executory. party may elevate the matter to this Court via a petition for review on certiorari under
However, while a trial court’s judgment relating to a petition for the declaration of Rule 45 of the Rules of Court.20
presumptive death ofan absent spouse is considered immediately final and executory, the Strict standards should not be imposed upon the present spouse in evaluating his or
Office of the Solicitor General is not entirely without remedy to assail the propriety of a her efforts to search for the absent spouse
trial court’s judgment. Where the judgment is attended by grave abuse of discretion However, I disagree with the position that "well-founded belief" should be interpreted as
amounting to lack or excess of jurisdiction, the Office of the Solicitor General may file with an imposition of stringent standards in evaluating the efforts and inquiries made by the
the Court of Appeals a petition for certiorari under Rule 65 and have the judgment present spouse in ascertaining the absent spouse’s status and whereabouts. "Well-
annulled. Should the Court of Appeals still render an adverse decision, the Office of the founded belief" should be based on the circumstances of each case. It should not be based
Solicitor General may then file a petition for review on certiorariunder Rule 45 with this on a prior limited enumeration of what acts indicate a "well-founded belief."
court. This is what the Office of the Solicitor General did in this case.
In cases for declaration of presumptive death under Article 41 of the Family Code, we
Any doubt on this matter was settled in Republic v. Granada:19 At any rate, four years after cannot ask the impossible from a spouse who was abandoned. In interpreting this
Jomoc, this Court settled the rule regarding appeal of judgments rendered in summary provision, we must keep in mind that both spouses are under many obligations in the
proceedings under the Family Code when it ruled in Republic v. Tango: Family Code,21 all of which require their presence.
"This case presents an opportunity for us to settle the rule on appeal of judgments Article 41 of the Family Code provides: Art. 41. A marriage contracted by any person
rendered insummary proceedings under the Family Code and accordingly, refine our during subsistence of a previous marriage shall be null and void, unless before the
previous decisions thereon. celebration of the subsequent marriage, the prior spouse had been absent for four
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE consecutive years and the spouse present has a well-founded belief that the absent spouse
FAMILY LAW, establishes the rules that govern summary court proceedings in the Family was already dead. In case of disappearance where there is danger of death under the
Code: circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of
ART. 238.Until modified by the Supreme Court, the procedural rules in this Title shall only two years shall be sufficient.
apply in all cases provided for in this Code requiring summary court proceedings. Such For the purpose of contracting the subsequent marriage under the preceding paragraph
cases shall be decided in an expeditious manner without regard to technical rules. the spouse present must institute a summary proceeding as provided in this Code for the
In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters declaration of presumptive death of the absentee, without prejudice to the effect of
two and three of the same title. It states: reappearance of the absent spouse.

ART. 253.The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary From the text of Article 41, there are two substantive requirements and two procedural
requirements for a spouse to be declared presumptively dead for the purpose of
proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
applicable. (Emphasis supplied.) remarriage.
In plain text, Article 247 in Chapter 2 of the same title reads: The two substantive requirements are the following: first, the absent spouse has been
missing for four (4) consecutive years or two (2) consecutive years if the disappearance
ART 247.The judgment of the court shall be immediately final and executory. occurred under circumstances where there is danger of death per Article 391 of the Civil
By express provision of law, the judgment of the court in a summary proceeding shall be Code; second, the present spouse has a well-founded belief that the absent spouse is dead.
immediately final and executory. As a matter of course, it follows that no appeal can be The two procedural requirements are the following: first, the present spouse files a
had of the trial court's judgment in a summary proceeding for the declaration of summary proceeding for the declaration of presumptive death of the absent spouse;
presumptive death of an absent spouse under Article 41 of the Family Code. It goes second, there is the underlying intent of the present spouse to remarry.
without saying, however, that an aggrieved party may file a petition for certiorarito
 9

In this case, it is necessary to interpret what is meant by "well-founded belief." first, she could not "climax" every time they would have sexual intercourse; second, Jerry
We said in Republic of the Philippines v. Court of Appeals and Alegro:22 disrespected her father every time he would visit them. She likewise stated that she went
to see her mother-in-law, brothers-in-law, sisters-in-law, neighbors, and friends to ask
The spouse present is, thus, burdened to prove that his spouse has been absent and that
about her husband’s whereabouts. She said that every time she would go to a hospital, she
he has a well-founded belief that the absent spouse is already dead before the present would check its directory to find out anything about her husband, but her efforts proved
spouse may contract a subsequent marriage. The law does not define what is meant by a
futile.
well-grounded belief.Cuello Callon writes that "es menester que su creencia sea firme se
funde en motivos racionales." The Office of the Solicitor General faulted her for "fall[ing] short of the degree of diligence
required for the search of a missing spouse."30 In effect, the Office of the Solicitor General
Belief is a state of the mind or condition prompting the doing of an overt act.It may be
insinuated that she should have exerted more painstaking efforts to ascertain her
proved by direct evidence or circumstantial evidence which may tend, even in a slight husband’s where abouts.
degree, to elucidate the inquiry or assist to a determination probably founded in truth. Any
fact or circumstance relating to the character, habits, conditions, attachments, prosperity The majority agrees with the Office of the Solicitor General. The majority views Maria Fe’s
and objects of life which usually control the conduct of men, and are the motives of their efforts as a mere "passive search" that is short of the diligent search required to form a
actions, was, so far as it tends to explain or characterize their disappearance or throw light well-founded belief that her husband was already dead.31
on their intentions, competence evidence on the ultimate question of his death. Maria Fe exerted the best efforts to ascertain the location of her husband but to no avail.
The belief of the present spouse must be the result of proper and honest to goodness She bore the indignity of being left behind. She suffered the indifference of her husband.
inquiries and efforts to ascertain the whereabouts of the absent spouse and whether the Such indifference was not momentary. She anguished through years of never hearing from
absent spouse is still alive or is already dead. Whether or not the spouse present acted on him. The absence of a few days between spouses may be tolerable, required by necessity.
a well-founded belief of death of the absent spouse depends upon the inquiries to be The absence of months may test one’s patience. But the absence of years of someone who
drawn from a great many circumstances occurring before and after the disappearance of made the solemn promise to stand by his partner in sickness and in health, for richer or
the absent spouse and the nature and extent of the inquiries made by present spouse. 23 poorer, is intolerable. The waiting is as painful to the spirit as the endless search for a
person that probably did not want to be found or could no longer be found.
Applying its construction of what constitutes a "well-founded belief" in Republic v.
Nolasco,24 this court reversed the Regional Trial Court and Court of Appeals decisions To require more from Maria Fe who did what she could, given the resources available to
which declared an absent spouse presumptively dead as the present spouse was deemed her, is to assert the oppressiveness of our laws. It is to tell her that she has to suffer from
to have "failed to conduct a search for his missing wife with such diligence as to give rise causes which she cannot understand for more years to come. It should be in the public
to a ‘well-founded belief’ that she is dead."25 In 2005, Republic of the Philippines v. Court of interest to assume that Jerry, or any husband for that matter, as a matter of moral and legal
Appeals and Alegro,26 which relied heavily on Nolasco, likewise held that "the respondent obligation, would get in touch with Maria Fe even if only to tell her that he is alive.
failed to prove that he had a well-founded belief x x x that his spouse x x x was already It behooves this court not to have pre-conceived expectations of a standard operating
dead."27 In the 2012 case of Republic v. Granada,28 while this court denied the Office of the procedure for spouses who are abandoned. Instead, it should, with the public interest in
Solicitor General’s petition on procedural grounds, this court nevertheless favorably mind and human sensitivity at heart, understand the domestic situation.
considered the Office of the Solicitor General’s assertions that "respondent was allegedly A review of the cases that the Office of the Solicitor General cited reveals this same
not diligent in her search for her husband."29 conclusion.
Belief is a state of mind and can only be as certained in reference to a person’s overt acts. Republic of the Philippines v. Court of Appeals and Alegro32 acknowledges that "testimonial
In making such an evaluation, one must evaluate a case on the basis of its own merits – evidence may suffice to prove the well-founded belief of the present spouse that the absent
cognizant of its unique facts, context, and other nuances –rather than be compelled to spouse is already dead x x x."33
satisfy a pre-conceived determination of what acts are sufficiently indicative of the belief
In another case cited by the Office of the Solicitor General, Republic v. Nolasco,34 which
being ascertained.
similarly considered the matter of whether respondent therein was able to establish a
A belief is well-founded when a person has reasonable basis for holding on to such belief. well-founded belief of the death of his absent spouse, this court cited the 1913 case
It is to say that such belief is not arbitrary and whimsical. Such belief must,thus,be of United States v. Biasbas,35 finding it to be "instructive as to degree [sic]of diligence
evaluated on the basic and uncomplicated standard of rationality. required in searching for a missing spouse."36 In Biasbas, defendant Biasbas’ defense of a
In declaring a person presumptively dead, a court is called upon to sustain a presumption. good faith belief that his wife was already dead was not sustained, and his conviction for
It is not called upon to conclude on verity or to establish actuality. In so doing, a court bigamy was affirmed. Speaking onBiasbas’ lack of due diligence, this court said:
infers despite an acknowledged uncertainty. Thus, to insist on such demanding and While the defendant testified that he had made inquiries concerning the whereabouts of
extracting evidence as to practically requireenough proof of a well-founded belief, as the his wife, he fails to state of whom he made such inquiries. He did not even write to the
Office of the Solicitor General suggests, is to insist on an inordinate, intemperate, and non- parents of his first wife, who lived in the Province of Pampanga, for the purpose of securing
rational standard. information concerning her or her whereabouts. He admits that he had a suspicion only
Maria Fe testified in court that months after their wedding, she and her husband had a that his first wife was dead. He admits that the only basis of his suspicion was the fact that
violent quarrel, and he had left after the fight. She noted the two (2) causes of the quarrel: she had been absent.37 (Emphasis supplied)
 10

What was involved in Biasbas was a mere suspicion –totally bereft of any other rational To be present in any human relationship especially that of marriage is a complex affair.
basis. Moreover, the defendant himself admitted that all he had was a mere suspicion. There are interests to be compromised for each other, temperaments to be adjusted,
What is involved in this case is not a mere suspicion. In Biasbas, the defendant could be evolving personalities to be understood in the crucible of common experiences. The
faulted for failing to even write the parents of his wife. Here, Maria Fe testified to her moments of bliss are paid for by the many moments of inevitable discomfort as couples
having visited and personally inquired with her mother-in-law, brothers-in-law, sisters-in- adjust their many standpoints, attitudes, and values for each other. It is a journey that
law, neighbors, and friends. Moreover, Maria Fe repeatedly checked hospital entries to takes time and in that time, presence.
check if her husband was admitted or otherwise was pronounced deceased. This case does not present that kind of complexity. It is simple enough. Maria Fe was left
While it may be true that it would have been ideal for Maria Fe to have exerted more behind. She looked for Jerry, in good faith. Jerry could not be found. He did not leave word.
exceptional efforts in locating her husband, the hypothetical issue of what else she could He did not make the slightest effort to get in touch with Maria Fe. His absence did not make
have done or ought to have done should not diminish the import of her efforts. It is for the difficult compromises possible. There were no adjustments in their temperaments, no
Maria Feto resort to the courses of action permitted to her given her stature and means. opportunities to further understand each other, no journey together. His absence was
We are called upon to make an appreciation of the reasonable, not of the exceptional. In palpable: not moments, not days, not months, but years. Maria Fe deserves more. The law,
adjudicating this case, this court must ground itself on what is real, not dwell on a in Article 41, allows her succor.
projected ideal. Given the circumstances, Maria Fe acted Her actions were sufficient to form the well-
In the case of Maria Fe, she did what, in her circumstances, are to be considered as an founded belief that her husband passed away. It was proper that he be declared
efficient search. Again, she got in touch with her husband’s relatives and searched presumptively dead. In the far possibility that he reappears and is not dead, the law
hospitals. More importantly, she waited for more than four (4) long years for her husband provides remedies for him. In the meantime, the Court of Appeals committed no reversible
to get in touch with her. error in affirming the Regional Trial Court's declaration.
Also, the insistence on the need for Maria Fe to ascertain the whereabouts of her deserting WHEREFORE, I vote to DENY the petition.
husband undermines the significance and weight of her husband’s own duty. In the normal
course of things, a spouse is well in a position to expect that the other spouse will return
to their common dwelling. Article 68 of the Family Code obliges the husband and the wife
"to live together, observe mutual love, respect and fidelity, and render mutual help and
support."
The opinions of a recognized authority in civil law, Arturo M. Tolentino, are particularly
enlightening:
Meaning of "Absent" Spouse.–The provisions of this article are of American origin, and
must be construed in the light of American jurisprudence. An identical provision (except
for the period) exists in the California civil code (section 61); California jurisprudence
should, therefore, prove enlightening. It has been held in that jurisdiction that, as respects
the validity of a husband’s subsequent marriage, a presumption as to the death of his first
wife cannot be predicated upon an absence resulting from his leaving or deserting her, as
it is his duty to keep her advised as to his where abouts. The spouse who has been left or
deserted is the one who is considered as the "spouse present"; such spouse is not required
to ascertain the whereabouts of the deserting spouse, and after the required number of
years of absence of the latter, the former may validly remarry. 38 (Underscoring supplied)
Precisely, it is a deserting spouse’s failure to comply with what is reasonably expected of
him or her and to fulfill the responsibilities that are all but normal to a spouse which makes
reasonable (i.e., well-founded)the belief that should he or she fail to manifest his or her
presence within a statutorily determined reasonable period, he or she must have been
deceased. The law is of the confidence that spouses will in fact "live together, observe
mutual love, respect and fidelity, and render mutual help and support"39 such that it is not
the business of the law to assume any other circumstance than that a spouse is deceased
in case he or she becomes absent.
It is unfortunate that the majority fails to appreciate Maria Fe's predicament and instead
places upon her the burden to prove good faith in her painstaking efforts.