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III.

Dilemma 4: Declaration of Presumptive Death for Purposes of


Remarriage
Three years later, on March 2001, Manuel went on a business
trip. The plane on which he boarded crashed into the Pacific Ocean, with
few survivors and many passengers unaccounted for. Despite efforts to
locate Manuels body, he was never found. Wendy was devastated. She
felt in her heart that Manuel was truly dead.
About a year and a half passed since the plane crash, Wendy met
another man, Omar. They fell in love, and decided to marry on June
2003. But in the months of January and February 2003, Wendy received
information from three different sources (see Appendixes E, F, G)
indicating that Manuel may be alive, and is living in Hong Kong. Despite
efforts to verify, there was no confirmation from the Hong Kong
authorities.
Wendy informs Louis that she has broken off her engagement to
Omar and asks Louis to help her locate Manuel. Louis feels guilty about
Wendy being so concerned about Manuel, whom he considered
undeserving of her love. Not wanting to see Wendy more depressed and
anguished, he finally tells Wendy that Ben is the child of Manuel with
Cora. Wendy was shocked and furious at both Manuel and Louis. To
gain back Wendys trust, Louis suggests that she should disregard any
information about Manuel since these were all hearsay. Thus, he says,
having received no news that Manuel may be alive, she can secure a
declaration of presumptive death in a summary proceeding before her
June wedding. He adds that he would do this without compensation as
proof of his friendship and remorse. He tells her of his uncle who is a
family court judge and assures her that their case will be raffled to his
court.
For Class Discussion Faculty Guide
a. Did Louis violate his lawyer-client confidentiality when he
told Wendy that Ben was Manuels child?
I. Consider the discussion in Part II (c), (e) [whether
there exists a lawyer-client relationship or not]
II. Consider the following:
i. Code of Professional Responsibility,
Canons 21, 21.01, 21.02
ii. Rules of Court, Rules 138, section 20 (e)
iii. Revised Penal Code, Article 209
b. Comment on the correctness, legal and moral, of his
advice on securing a declaration of presumptive death of
Manuel. Is unconfirmed information enough to destroy
the spouses well-founded belief that the absentee
spouse is dead?
I. See Appendixes E, F, G (Information on Manuel
after the plane crash)
II. Consider the following:
i. Civil Code, Articles 390-391
ii. Family Code, Article 41
iii. RP vs CA and Alan Alegro, GR 159614,
December 9, 2005
The spouse present is, thus,
burdened to prove that his spouse has been
absent and that he has a well-founded belief
that the absent spouse is already dead before
the present spouse may contract a subsequent
marriage. The law does not define what is
meant by a well-grounded belief.
Belief is a state of the mind or
condition prompting the doing of an overt
act. It may be proved by direct evidence or
circumstantial evidence which may tend, even
in a slight 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 and objects of life which usually
control the conduct of men, and are the
motives of their actions, was, so far as it tends
to explain or characterize their disappearance
or throw light on their intentions, competence
evidence on the ultimate question of his
death.
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 is
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
present spouse.
iv. RP vs Nolasco, GR 94053, March 17,
1993
United States v. Biasbas, is instructive as to
degree of diligence required in searching for a
missing spouse. In that case, defendant Macario
Biasbas was charged with the crime of bigamy. He
set-up the defense of a good faith belief that his
first wife had already died. The Court held that
defendant had not exercised due diligence to
ascertain the whereabouts of his first wife, noting
that:
While the defendant testified that he
had made inquiries concerning the
whereabouts of his wife, he fails to
state of whom he made such inquiries.
He did not even write to the parents
of his first wife, who lived in the
Province of Pampanga, for the
purpose of securing information
concerning her whereabouts. He
admits that he had a suspicion only
that his first wife was dead. He admits
that the only basis of his suspicion
was the fact that she had been absent.
. . .
In the case at bar, the Court consider
that the investigation allegedly conducted by
respondent in his attempt to ascertain Janet
Monica Parker's whereabouts is too sketchy to
form the basis of a reasonable or well-founded
belief that she was already dead. When 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 seaman's contract and went to
London, a vast city of many millions of
inhabitants, to look for her there.
c. Comment on the ethical questions involved in Louis
planned legal strategy.
I. Consider the following:
i. On disregarding unconfirmed information
about Manuel
1) Code of Professional
Responsibility, Canons 1, 1.01,
1.02
ii. On the insinuation about influence on the
family court judge
1) Code of Professional
Responsibility, Canons 15.06,
15.07