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G.R. No. 94053 March 17, 1993 Jose, Antique.

Jose, Antique. Alicia Nolasco also said that she had tried to
dissuade Janet Monica from leaving as she had given birth to
her son just fifteen days before, but when she (Alicia) failed to
REPUBLIC OF THE PHILIPPINES, petitioner, do so, she gave Janet Monica P22,000.00 for her expenses
vs. before she left on 22 December 1982 for England. She
GREGORIO NOLASCO, respondent. further claimed that she had no information as to the missing
person's present whereabouts.
The Solicitor General for plaintiff-appellee.
The trial court granted Nolasco's petition in a Judgment dated
Warloo G. Cardenal for respondent. 12 October 1988 the dispositive portion of which reads:

RESOLUTION Wherefore, under Article 41, paragraph 2 of the Family


Code of the Philippines (Executive Order No. 209, July 6,
1987, as amended by Executive Order No. 227, July 17,
FELICIANO, J.: 1987) this Court hereby declares as presumptively dead
Janet Monica Parker Nolasco, without prejudice to her
4
On 5 August 1988, respondent Gregorio Nolasco filed before reappearance.
the Regional Trial Court of Antique, Branch 10, a petition for
the declaration of presumptive death of his wife Janet Monica The Republic appealed to the Court of Appeals contending
Parker, invoking Article 41 of the Family Code. The petition that the trial court erred in declaring Janet Monica Parker
prayed that respondent's wife be declared presumptively presumptively dead because respondent Nolasco had failed
dead or, in the alternative, that the marriage be declared null to show that there existed a well founded belief for such
1
and void. declaration.

The Republic of the Philippines opposed the petition through The Court of Appeals affirmed the trial court's decision,
the Provincial Prosecutor of Antique who had been deputized holding that respondent had sufficiently established a basis to
to assist the Solicitor-General in the instant case. The form a belief that his absent spouse had already died.
Republic argued, first, that Nolasco did not possess a "well-
founded belief that the absent spouse was already
2
dead," and second, Nolasco's attempt to have his marriage The Republic, through the Solicitor-General, is now before
annulled in the same proceeding was a "cunning attempt" to this Court on a Petition for Review where the following
circumvent the law on marriage.
3 allegations are made:

During trial, respondent Nolasco testified that he was a 1. The Court of Appeals erred in affirming the trial court's
seaman and that he had first met Janet Monica Parker, a finding that there existed a well-founded belief on the part
British subject, in a bar in England during one of his ship's of Nolasco that Janet Monica Parker was already dead;
port calls. From that chance meeting onwards, Janet Monica and
Parker lived with respondent Nolasco on his ship for six (6)
months until they returned to respondent's hometown of San 2. The Court of Appeals erred in affirming the trial Court's
Jose, Antique on 19 November 1980 after his seaman's declaration that the petition was a proper case of the
contract expired. On 15 January 1982, respondent married declaration of presumptive death under Article 41, Family
5
Janet Monica Parker in San Jose, Antique, in Catholic rites Code.
officiated by Fr. Henry van Tilborg in the Cathedral of San
Jose. The issue before this Court, as formulated by petitioner is
"[w]hether or not Nolasco has a well-founded belief that his
6
Respondent Nolasco further testified that after the marriage wife is already dead."
celebration, he obtained another employment contract as a
seaman and left his wife with his parents in San Jose, The present case was filed before the trial court pursuant to
Antique. Sometime in January 1983, while working overseas, Article 41 of the Family Code which provides that:
respondent received a letter from his mother informing him
that Janet Monica had given birth to his son. The same letter
informed him that Janet Monica had left Antique. Respondent Art. 41. A marriage contracted by any person during the
claimed he then immediately asked permission to leave his subsistence of a previous marriage shall be null and void,
ship to return home. He arrived in Antique in November 1983. unless before the celebration of the subsequent marriage,
the prior spouse had been absent for four consecutive
years and the spouse present had a well-founded belief
Respondent further testified that his efforts to look for her that the absent spouse was already dead. In case of
himself whenever his ship docked in England proved fruitless. disappearance where there is danger of death under the
He also stated that all the letters he had sent to his missing circumstances set forth in the provision of Article 391 of
spouse at No. 38 Ravena Road, Allerton, Liverpool, England, the Civil Code, an absence of only two years shall be
the address of the bar where he and Janet Monica first met, sufficient.
were all returned to him. He also claimed that he inquired
from among friends but they too had no news of Janet
Monica. For the purpose of contracting the subsequent marriage
under the preceding paragraph, the spouse present must
institute a summary proceeding as provided in this Code
On cross-examination, respondent stated that he had lived for the declaration of presumptive death of the absentee,
with and later married Janet Monica Parker despite his lack of without prejudice to the effect of reappearance of the
knowledge as to her family background. He insisted that his absent spouse. (Emphasis supplied).
wife continued to refuse to give him such information even
after they were married. He also testified that he did not
report the matter of Janet Monica's disappearance to the When Article 41 is compared with the old provision of the
7
Philippine government authorities. Civil Code, which it superseded, the following crucial
differences emerge. Under Article 41, the time required for
the presumption to arise has been shortened to four (4)
Respondent Nolasco presented his mother, Alicia Nolasco, years; however, there is need for a judicial declaration of
as his witness. She testified that her daughter-in-law Janet presumptive death to enable the spouse present to
Monica had expressed a desire to return to England even 8
remarry. Also, Article 41 of the Family Code imposes a
before she had given birth to Gerry Nolasco on 7 December stricter standard than the Civil Code: Article 83 of the Civil
1982. When asked why her daughter-in-law might have Code merely requires either that there be no news that such
wished to leave Antique, respondent's mother replied that absentee is still alive; or the absentee is generally considered
Janet Monica never got used to the rural way of life in San
to be dead and believed to be so by the spouse present, or A I secured another contract with the ship and we had a
is presumed dead under Article 390 and 391 of the Civil trip to London and I went to London to look for her I
9 15
Code. The Family Code, upon the other hand, prescribes could not find her (sic). (Emphasis supplied)
as "well founded belief" that the absentee is already
dead before a petition for declaration of presumptive death Respondent's testimony, however, showed that he confused
can be granted. London for Liverpool and this casts doubt on his supposed
efforts to locate his wife in England. The Court of Appeal's
As pointed out by the Solicitor-General, there are four (4) justification of the mistake, to wit:
requisites for the declaration of presumptive death under
Article 41 of the Family Code: . . . Well, while the cognoscente (sic) would readily
know the geographical difference between London and
1. That the absent spouse has been missing for four Liverpool, for a humble seaman like Gregorio the two
consecutive years, or two consecutive years if the places could mean one — place in England, the port
disappearance occurred where there is danger of death where his ship docked and where he found Janet. Our
under the circumstances laid down in Article 391, Civil own provincial folks, every time they leave home to visit
Code; relatives in Pasay City, Kalookan City, or Parañaque,
would announce to friends and relatives, "We're going
2. That the present spouse wishes to remarry; to Manila." This apparent error in naming of places of
16
destination does not appear to be fatal.
3. That the present spouse has a well-founded belief
that the absentee is dead; and is not well taken. There is no analogy between Manila and its
neighboring cities, on one hand, and London and Liverpool,
on the other, which, as pointed out by the Solicitor-General,
4. That the present spouse files a summary proceeding are around three hundred fifty (350) kilometers apart. We do
for the declaration of presumptive death of the not consider that walking into a major city like Liverpool or
10
absentee. London with a simple hope of somehow bumping into one
particular person there — which is in effect what Nolasco
Respondent naturally asserts that he had complied with all says he did — can be regarded as a reasonably diligent
11
these requirements. search.

Petitioner's argument, upon the other hand, boils down to The Court also views respondent's claim that Janet Monica
this: that respondent failed to prove that he had complied with declined to give any information as to her personal
17
the third requirement, i.e., the existence of a "well-founded background even after she had married respondent too
belief" that the absent spouse is already dead. convenient an excuse to justify his failure to locate her. The
same can be said of the loss of the alleged letters respondent
The Court believes that respondent Nolasco failed to conduct had sent to his wife which respondent claims were all
a search for his missing wife with such diligence as to give returned to him. Respondent said he had lost these returned
rise to a "well-founded belief" that she is dead. letters, under unspecified circumstances.

12
United States v. Biasbas, is instructive as to degree of Neither can this Court give much credence to respondent's
diligence required in searching for a missing spouse. In that bare assertion that he had inquired from their friends of her
case, defendant Macario Biasbas was charged with the crime whereabouts, considering that respondent did not identify
of bigamy. He set-up the defense of a good faith belief that those friends in his testimony. The Court of Appeals ruled
his first wife had already died. The Court held that defendant that since the prosecutor failed to rebut this evidence during
had not exercised due diligence to ascertain the whereabouts trial, it is good evidence. But this kind of evidence cannot, by
of his first wife, noting that: its nature, be rebutted. In any case, admissibility is not
18
synonymous with credibility. As noted before, there are
serious doubts to respondent's credibility. Moreover, even if
While the defendant testified that he had made inquiries admitted as evidence, said testimony merely tended to show
concerning the whereabouts of his wife, he fails to state that the missing spouse had chosen not to communicate with
of whom he made such inquiries. He did not even write their common acquaintances, and not that she was dead.
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 Respondent testified that immediately after receiving his
suspicion only that his first wife was dead. He admits mother's letter sometime in January 1983, he cut short his
that the only basis of his suspicion was the fact that she employment contract to return to San Jose, Antique.
had been absent. . . .
13 However, he did not explain the delay of nine (9) months from
January 1983, when he allegedly asked leave from his
captain, to November 1983 when be finally reached San
In the case at bar, the Court considers that the investigation Jose. Respondent, moreover, claimed he married Janet
allegedly conducted by respondent in his attempt to ascertain Monica Parker without inquiring about her parents and their
Janet Monica Parker's whereabouts is too sketchy to form the 19
place of residence. Also, respondent failed to explain why
basis of a reasonable or well-founded belief that she was he did not even try to get the help of the police or other
already dead. When he arrived in San Jose, Antique after authorities in London and Liverpool in his effort to find his
learning of Janet Monica's departure, instead of seeking the wife. The circumstances of Janet Monica's departure and
14
help of local authorities or of the British Embassy, he respondent's subsequent behavior make it very difficult to
secured another seaman's contract and went to London, a regard the claimed belief that Janet Monica was dead a well-
vast city of many millions of inhabitants, to look for her there. founded one.

Q After arriving here in San Jose, Antique, did you exert In Goitia v. Campos-Rueda,
20
the Court stressed that:
efforts to inquire the whereabouts of your wife?
. . . Marriage is an institution, the maintenance of which in
A Yes, Sir. its purity the public is deeply interested. It is a
relationship for life and the parties cannot terminate it at
Court: any shorter period by virtue of any contract they make. .
21
. . . (Emphasis supplied)
How did you do that?
By the same token, the spouses should not be allowed, by
the simple expedient of agreeing that one of them leave the
conjugal abode and never to return again, to circumvent the ANTONIA ARMAS Y CALISTERIO, petitioner,
policy of the laws on marriage. The Court notes that vs. MARIETTA CALISTERIO, respondent.
respondent even tried to have his marriage annulled before
the trial court in the same proceeding.
DECISION
22
In In Re Szatraw, the Court warned against such collusion
between the parties when they find it impossible to dissolve VITUG, J.:
the marital bonds through existing legal means.
On 24 April 1992, Teodorico Calisterio died intestate, leaving
While the Court understands the need of respondent's young several parcels of land with an estimated value of
son, Gerry Nolasco, for maternal care, still the requirements P604,750.00. Teodorico was survived by his wife, herein
of the law must prevail. Since respondent failed to satisfy the respondent Marietta Calisterio. Esm
clear requirements of the law, his petition for a judicial
declaration of presumptive death must be denied. The law Teodorico was the second husband of Marietta who had
does not view marriage like an ordinary contract. Article 1 of previously been married to James William Bounds on 13
the Family Code emphasizes that. January 1946 at Caloocan City. James Bounds disappeared
without a trace on 11 February 1947. Teodorico and Marietta
. . . Marriage is a special contract of permanent were married eleven years later, or on 08 May 1958, without
union between a man and a woman entered into in Marietta having priorly secured a court declaration that
accordance with law for the establishment of conjugal and James was presumptively dead. Esmsc
family life. It is the foundation of the familyand
an inviolable social institution whose nature, On 09 October 1992, herein petitioner Antonia Armas y
consequences, and incidents are governed by law Calisterio, a surviving sister of Teodorico, filed with the
and not subject to stipulation, except that marriage Regional Trial Court ("RTC") of Quezon City, Branch 104, a
settlements may fix the property relations during the petition entitled, "In the Matter of Intestate Estate of the
marriage within the limits provided by this Code. Deceased Teodorico Calisterio y Cacabelos, Antonia Armas,
(Emphasis supplied) Petitioner," claiming to be inter alia, the sole surviving heir of
Teodorico Calisterio, the marriage between the latter and
In Arroyo, Jr. v. Court of Appeals,
23
the Court stressed respondent Marietta Espinosa Calisterio being allegedly
strongly the need to protect. bigamous and thereby null and void. She prayed that her son
Sinfroniano C. Armas, Jr., be appointed administrator, without
bond, of the estate of the deceased and that the inheritance
. . . the basic social institutions of marriage and the
be adjudicated to her after all the obligations of the estate
family in the preservation of which the State bas the
would have been settled.
strongest interest; the public policy here involved is of
the most fundamental kind. In Article II, Section 12 of
the Constitution there is set forth the following basic Respondent Marietta opposed the petition. Marietta stated
state policy: that her first marriage with James Bounds had been
dissolved due to the latter's absence, his whereabouts being
unknown, for more than eleven years before she contracted
The State recognizes the sanctity of family life and shall
her second marriage with Teodorico. Contending to be the
protect and strengthen the family as a basic
surviving spouse of Teodorico, she sought priority in the
autonomous social institution. . . .
administration of the estate of the decedent. Esmmis

The same sentiment bas been expressed in the Family


On 05 February 1993, the trial court issued an order
Code of the Philippines in Article 149:
appointing jointly Sinfroniano C. Armas, Jr., and respondent
Marietta administrator and administratrix, respectively, of the
The family, being the foundation of the nation, is a basic intestate estate of Teodorico.
social institution which public policy cherishes and
protects. Consequently, family relations are governed
On 17 January 1996, the lower court handed down its
by law and no custom, practice or agreement
decision in favor of petitioner Antonia; it adjudged:
destructive of the family shall be recognized or given
24
effect.
"WHEREFORE, judgment is hereby rendered finding for
the petitioner and against the oppositor whereby herein
In fine, respondent failed to establish that he had the well-
petitioner, Antonia Armas y Calisterio, is declared as the
founded belief required by law that his absent wife was
sole heir of the estate of Teodorico Calisterio y
already dead that would sustain the issuance of a court order [1]
Cacabelos."
declaring Janet Monica Parker presumptively dead.

Respondent Marietta appealed the decision of the trial court


WHEREFORE, the Decision of the Court of Appeals dated 23
to the Court of Appeals, formulating that-
February 1990, affirming the trial court's decision declaring
Janet Monica Parker presumptively dead is hereby
REVERSED and both Decisions are hereby NULLIFIED and "1. The trial court erred in applying the provisions of the
SET ASIDE. Costs against respondent. Family Code in the instant case despite the fact that the
controversy arose when the New Civil Code was the law
in force.

"2. The trial court erred in holding that the marriage


between oppositor-appellant and the deceased
Teodorico Calisterio is bigamous for failure of the former
to secure a decree of the presumptive death of her first
spouse.

"3. The trial court erred in not holding that the property
situated at No. 32 Batangas Street, San Francisco del
Monte, Quezon City, is the conjugal property of the
oppositor-appellant and the deceased Teodorico
Calisterio. Esmso
"4. The trial court erred in holding that oppositor- being alive, or if the absentee, though he has been
appellant is not a legal heir of deceased Teodorico absent for less than seven years, is generally considered
Calisterio. as dead and believed to be so by the spouse present at
the time of contracting such subsequent marriage, or if
"5. The trial court erred in not holding that letters of the absentee is presumed dead according to articles 390
administration should be granted solely in favor of and 391. The marriage so contracted shall be valid in any
oppositor-appellant."
[2] of the three cases until declared null and void by a
competent court."

On 31 August 1998, the appellate court, through Mr. Justice


Conrado M. Vasquez, Jr., promulgated its now assailed Under the foregoing provisions, a subsequent marriage
decision, thus: contracted during the lifetime of the first spouse is illegal and
void ab initio unless the prior marriage is first annulled or
dissolved. Paragraph (2) of the law gives exceptions from the
"IN VIEW OF ALL THE FOREGOING, the Decision above rule. For the subsequent marriage referred to in the
appealed from is REVERSED AND SET ASIDE, and a three exceptional cases therein provided, to be held valid, the
new one entered declaring as follows: spouse present (not the absentee spouse) so contracting the
[6]
later marriage must have done so in good faith. Bad faith
"(a) Marietta Calisterio's marriage to Teodorico remains imports a dishonest purpose or some moral obliquity and
valid; conscious doing of wrong - it partakes of the nature of fraud,
a breach of a known duty through some motive of interest or
[7]
"(b) The house and lot situated at #32 Batangas Street, ill will. The Court does not find these circumstances to be
San Francisco del Monte, Quezon City, belong to the here extant. Kycalr
conjugal partnership property with the concomitant
obligation of the partnership to pay the value of the land A judicial declaration of absence of the absentee spouse is
[8]
to Teodorico's estate as of the time of the taking; not necessary as long as the prescribed period of absence
is met. It is equally noteworthy that the marriage in these
"(c) Marietta Calisterio, being Teodorico's compulsory exceptional cases are, by the explicit mandate of Article 83,
heir, is entitled to one half of her husband's estate, and to be deemed valid "until declared null and void by a
Teodorico's sister, herein petitioner Antonia Armas and competent court." It follows that the burden of proof would be,
her children, to the other half; Msesm in these cases, on the party assailing the second
marriage. Calrky

"(d) The trial court is ordered to determine the


competence of Marietta E. Calisterio to act as In contrast, under the 1988 Family Code, in order that a
administrator of Teodorico's estate, and if so found subsequent bigamous marriage may exceptionally be
competent and willing, that she be appointed as such; considered valid, the following conditions must concur; viz.:
otherwise, to determine who among the deceased's (a) The prior spouse of the contracting party must have been
next of kin is competent and willing to become the absent for four consecutive years, or two years where there is
administrator of the estate."
[3] danger of death under the circumstances stated in Article 391
of the Civil Code at the time of disappearance; (b) the spouse
present has a well-founded belief that the absent spouse is
On 23 November 1998, the Court of Appeals denied already dead; and (c) there is, unlike the old rule, a judicial
petitioner's motion for reconsideration, prompting her to declaration of presumptive death of the absentee for which
interpose the present appeal. Petitioner asseverates: purpose the spouse present can institute a summary
proceeding in court to ask for that declaration. The last
"It is respectfully submitted that the decision of the condition is consistent and in consonance with the
Court of Appeals reversing and setting aside the requirement of judicial intervention in subsequent marriages
[9] [10]
decision of the trial court is not in accord with the law as so provided in Article 41 , in relation to Article 40, of
or with the applicable decisions of this Honorable the Family Code. Mesm
[4]
Court."
In the case at bar, it remained undisputed that respondent
It is evident that the basic issue focuses on the validity of the Marietta's first husband, James William Bounds, had been
marriage between the deceased Teodorico and respondent absent or had disappeared for more than eleven years before
Marietta, that, in turn, would be determinative of her right as a she entered into a second marriage in 1958 with the
surviving spouse. Exsm deceased Teodorico Calisterio. This second marriage, having
been contracted during the regime of the Civil Code, should
thus be deemed valid notwithstanding the absence of a
The marriage between the deceased Teodorico and
judicial declaration of presumptive death of James Bounds.
respondent Marietta was solemnized on 08 May 1958. The
law in force at that time was the Civil Code, not the Family
Code which took effect only on 03 August 1988. Article 256 of The conjugal property of Teodorico and Marietta, no evidence
[5]
the Family Code itself limited its retroactive governance having been adduced to indicate another property regime
only to cases where it thereby would not prejudice or impair between the spouses, pertains to them in common. Upon its
vested or acquired rights in accordance with the Civil Code or dissolution with the death of Teodorico, the property should
other laws. rightly be divided in two equal portions -- one portion going to
the surviving spouse and the other portion to the estate of the
deceased spouse. The successional right in intestacy of a
Verily, the applicable specific provision in the instant [11]
surviving spouse over the net estate of the deceased,
controversy is Article 83 of the New Civil Code which
concurring with legitimate brothers and sisters or nephews
provides: Kyle
and nieces (the latter by right of representation), is one-half of
the inheritance, the brothers and sisters or nephews and
"Art. 83. Any marriage subsequently contracted by any nieces, being entitled to the other half. Nephews and nieces,
person during the lifetime of the first spouse of such however, can only succeed by right of representation in the
person with any person other than such first spouse shall presence of uncles and aunts; alone, upon the other hand,
be illegal and void from its performance, unless: nephews and nieces can succeed in their own right which is
to say that brothers or sisters exclude nephews and nieces
"(1) The first marriage was annulled or dissolved; or except only in representation by the latter of their parents
who predecease or are incapacitated to succeed. The
appellate court has thus erred in granting, in paragraph (c) of
"(2) The first spouse had been absent for seven
the dispositive portion of its judgment, successional rights, to
consecutive years at the time of the second marriage
petitioner's children, along with their own mother Antonia who
without the spouse present having news of the absentee
herself is invoking successional rights over the estate of her Manila where she learned that Eduardo had been previously
deceased brother. Slx married. She secured an NSO-certified copy of the marriage
[7]
contract. She was so embarrassed and humiliated when
WHEREFORE, the assailed judgment of the Coin of Appeals she learned that Eduardo was in fact already married when
[8]
in CA G.R. CV No. 51574 is AFFIRMED except insofar only they exchanged their own vows.
as it decreed in paragraph (c) of the dispositive portion
thereof that the children of petitioner are likewise entitled, For his part, Eduardo testified that he met Tina sometime in
along with her, to the other half of the inheritance, in lieu of 1995 in a bar where she worked as a Guest Relations Officer
which, it is hereby DECLARED that said one-half share of the (GRO). He fell in love with her and married her. He informed
decedent's estate pertains solely to petitioner to the exclusion Tina of his previous marriage to Rubylus Gaa, but she
of her own children. No costs. nevertheless agreed to marry him. Their marital relationship
was in order until this one time when he noticed that she had
a love-bite on her neck. He then abandoned her. Eduardo
SO ORDERED. further testified that he declared he was single in his marriage
contract with Tina because he believed in good faith that his
EDUARDO MANUEL vs. PEOPLE first marriage was invalid. He did not know that he had to go
to court to seek for the nullification of his first marriage before
marrying Tina.
CALLEJO, SR., J.:
Eduardo further claimed that he was only forced to
marry his first wife because she threatened to commit suicide
Before us is a petition for review on certiorari of the unless he did so. Rubylus was charged with estafa in 1975
[1]
Decision of the Court of Appeals (CA) in CA-G.R. CR No. and thereafter imprisoned. He visited her in jail after three
[2]
26877, affirming the Decision of the Regional Trial Court months and never saw her again. He insisted that he married
(RTC) of Baguio City, Branch 3, convicting Eduardo P. Tina believing that his first marriage was no longer valid
Manuel of bigamy in Criminal Case No. 19562-R. because he had not heard from Rubylus for more than 20
years.
Eduardo was charged with bigamy in an Information filed on
November 7, 2001, the accusatory portion of which reads: After trial, the court rendered judgment on July 2, 2002
finding Eduardo guilty beyond reasonable doubt of bigamy.
He was sentenced to an indeterminate penalty of from six (6)
years and ten (10) months, as minimum, to ten (10) years, as
nd
That on or about the 22 day of April, 1996, in the maximum, and directed to indemnify the private complainant
City of Baguio, Philippines, and within the Tina Gandalera the amount of P200,000.00 by way of moral
[9]
jurisdiction of this Honorable Court, the above- damages, plus costs of suit.
named accused EDUARDO P. MANUEL, being
then previously and legally married to RUBYLUS The trial court ruled that the prosecution was able to prove
[GAA] and without the said marriage having been beyond reasonable doubt all the elements of bigamy under
legally dissolved, did then and there willfully, Article 349 of the Revised Penal Code. It declared that
unlawfully and feloniously contract a second Eduardos belief, that his first marriage had been dissolved
marriage with TINA GANDALERA-MANUEL, because of his first wifes 20-year absence, even if true, did
herein complainant, who does not know the not exculpate him from liability for bigamy. Citing the ruling of
[10]
existence of the first marriage of said EDUARDO this Court in People v. Bitdu, the trial court further ruled
P. MANUEL to Rubylus [Gaa]. that even if the private complainant had known that Eduardo
had been previously married, the latter would still be
[3]
CONTRARY TO LAW. criminally liable for bigamy.
Eduardo appealed the decision to the CA. He
alleged that he was not criminally liable for bigamy because
The prosecution adduced evidence that on July 28, 1975, when he married the private complainant, he did so in good
Eduardo was married to Rubylus Gaa before Msgr. Feliciano faith and without any malicious intent. He maintained that at
Santos in Makati, which was then still a municipality of the the time that he married the private complainant, he was of
[4]
Province of Rizal. He met the private complainant Tina B. the honest belief that his first marriage no longer subsisted.
Gandalera in Dagupan City sometime in January 1996. She He insisted that conformably to Article 3 of the Revised Penal
stayed in Bonuan, Dagupan City for two days looking for a Code, there must be malice for one to be criminally liable for
friend. Tina was then 21 years old, a Computer Secretarial a felony. He was not motivated by malice in marrying the
student, while Eduardo was 39. Afterwards, Eduardo went to private complainant because he did so only out of his
Baguio City to visit her. Eventually, as one thing led to overwhelming desire to have a fruitful marriage. He posited
another, they went to a motel where, despite Tinas that the trial court should have taken into account Article 390
resistance, Eduardo succeeded in having his way with her. of the New Civil Code. To support his view, the appellant
Eduardo proposed marriage on several occasions, assuring cited the rulings of this Court in United States v.
[11] [12]
her that he was single. Eduardo even brought his parents to Pealosa and Manahan, Jr. v. Court of Appeals.
Baguio City to meet Tinas parents, and was assured by them
that their son was still single. The Office of the Solicitor General (OSG) averred
that Eduardos defense of good faith and reliance on the
[13]
Tina finally agreed to marry Eduardo sometime in Courts ruling in United States v. Enriquez were misplaced;
the first week of March 1996. They were married on April 22, what is applicable is Article 41 of the Family Code, which
1996 before Judge Antonio C. Reyes, the Presiding Judge of amended Article 390 of the Civil Code. Citing the ruling of this
[5] [14]
the RTC of Baguio City, Branch 61. It appeared in their Court in Republic v. Nolasco, the OSG further posited that
marriage contract that Eduardo was single. as provided in Article 41 of the Family Code, there is a need
for a judicial declaration of presumptive death of the
The couple was happy during the first three years of absentspouse to enable the present spouse to marry. Even
their married life. Through their joint efforts, they were able to assuming that the first marriage was void, the parties thereto
build their home in Cypress Point, Irisan, Baguio City. should not be permitted to judge for themselves the nullity of
However, starting 1999, Manuel started making himself the marriage;
scarce and went to their house only twice or thrice a year. the matter should be submitted to the proper court for
Tina was jobless, and whenever she asked money from resolution. Moreover, the OSG maintained, the private
[6]
Eduardo, he would slap her. Sometime in January 2001, complainants knowledge of the first marriage would not afford
Eduardo took all his clothes, left, and did not return. Worse, any relief since bigamy is an offense against the State and
he stopped giving financial support. not just against the private complainant.

Sometime in August 2001, Tina became curious and However, the OSG agreed with the appellant that
made inquiries from the National Statistics Office (NSO) in the penalty imposed by the trial court was erroneous and
sought the affirmance of the decision appealed from with presumptive death under Article 41 of the Family Code is only
modification. a requirement for the validity of the subsequent or second
marriage.
On June 18, 2004, the CA rendered judgment affirming the
decision of the RTC with modification as to the penalty of the The petitioner, likewise, avers that the trial court and the CA
accused. It ruled that the prosecution was able to prove all erred in awarding moral damages in favor of the private
the elements of bigamy. Contrary to the contention of the complainant. The private complainant was a GRO before he
appellant, Article 41 of the Family Code should apply. Before married her, and even knew that he was already married. He
Manuel could lawfully marry the private complainant, there genuinely loved and took care of her and gave her financial
should have been a judicial declaration of Gaas presumptive support. He also pointed out that she had an illicit relationship
death as the absent spouse. The appellate court cited the with a lover whom she brought to their house.
[15]
rulings of this Court in Mercado v. Tan and Domingo v.
[16]
Court of Appeals to support its ruling. The dispositive In its comment on the petition, the OSG maintains that the
portion of the decision reads: decision of the CA affirming the petitioners conviction is in
accord with the law, jurisprudence and the evidence on
WHEREFORE, in the light of the foregoing, the record. To bolster its claim, the OSG cited the ruling of this
[19]
Decision promulgated on July 31, 2002 is Court in Republic v. Nolasco.
hereby MODIFIED to reflect, as it hereby
reflects, that accused-appellant is sentenced to The petition is denied for lack of merit.
an indeterminate penalty of two (2) years, four
(4) months and one (1) day of prision Article 349 of the Revised Penal Code, which defines and
correccional, as minimum, to ten (10) years penalizes bigamy, reads:
of prision mayor as maximum. Said Decision
is AFFIRMED in all other respects. Art. 349. Bigamy. The penalty of prision
mayor shall be imposed upon any person who
[17]
SO ORDERED. shall contract a second or subsequent
marriage before the former marriage has been
Eduardo, now the petitioner, filed the instant petition for legally dissolved, or before the absent spouse
review on certiorari, insisting that: has been declared presumptively dead by
means of a judgment rendered in the proper
I proceedings.
THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR OF LAW WHEN IT RULED The provision was taken from Article 486 of the Spanish
THAT PETITIONERS FIRST WIFE CANNOT BE Penal Code, to wit:
LEGALLY PRESUMED DEAD UNDER ARTICLE
390 OF THE CIVIL CODE AS THERE WAS NO El que contrajere Segundo o ulterior
JUDICIAL DECLARATION OF PRESUMPTIVE matrimonio sin hallarse legtimamente
DEATH AS PROVIDED FOR UNDER ARTICLE disuelto el anterior, ser castigado con la pena
41 OF THE FAMILY CODE. de prision mayor. xxx

II The reason why bigamy is considered a felony is to preserve


THE COURT OF APPEALS COMMITTED and ensure the juridical tie of marriage established by
[20]
REVERSIBLE ERROR OF LAW WHEN IT law. The phrase or before the absent spouse had been
AFFIRMED THE AWARD OF PHP200,000.00 AS declared presumptively dead by means of a judgment
MORAL DAMAGES AS IT HASNO BASIS rendered in the proper proceedings was incorporated in the
[18]
IN FACT AND IN LAW. Revised Penal Code because the drafters of the law were of
the impression that in consonance with the civil law which
The petitioner maintains that the prosecution failed to prove provides for the presumption of death after an absence of a
the second element of the felony, i.e., that the marriage has number of years, the judicial declaration of presumed
not been legally dissolved or, in case his/her spouse is death like annulment of marriage should be a justification
[21]
absent, the absent spouse could not yet be presumed dead for bigamy.
under the Civil Code. He avers that when he married
Gandalera in 1996, Gaa had been absent for 21 years since For the accused to be held guilty of bigamy, the prosecution
1975; under Article 390 of the Civil Code, she was presumed is burdened to prove the felony: (a) he/she has been legally
dead as a matter of law. He points out that, under the first married; and (b) he/she contracts a subsequent marriage
paragraph of Article 390 of the Civil Code, one who has been without the former marriage having been lawfully dissolved.
absent for seven years, whether or not he/she is still alive, The felony is consummated on the celebration of the second
[22]
shall be presumed dead for all purposes except for marriage or subsequent marriage. It is essential in the
succession, while the second paragraph refers to the rule on prosecution for bigamy that the alleged second marriage,
legal presumption of death with respect to succession. having all the essential requirements, would be valid were it
[23]
not for the subsistence of the first marriage. Viada avers
The petitioner asserts that the presumptive death of that a third element of the crime is that the second marriage
the absent spouse arises by operation of law upon the must be entered into with fraudulent intent (intencion
satisfaction of two requirements: the fraudulente) which is an essential element of a felony
[24]
specified period and the present spouses reasonable belief by dolo. On the other hand, Cuello Calon is of the view that
that the absentee is dead. He insists that he was able to there are only two elements of bigamy: (1) the existence of a
prove that he had not heard from his first wife since 1975 and marriage that has not been lawfully dissolved; and (2) the
that he had no knowledge of her whereabouts or whether she celebration of a second marriage. It does not matter whether
was still alive; hence, under Article 41 of the Family Code, the the first marriage is void or voidable because such marriages
presumptive death of Gaa had arisen by operation of law, as have juridical effects until lawfully dissolved by a court of
[25]
the two requirements of Article 390 of the Civil Code are competent jurisdiction. As the Court ruled in Domingo v.
[26] [27]
present. The petitioner concludes that he should thus be Court of Appeals and Mercado v. Tan, under the Family
acquitted of the crime of bigamy. Code of the Philippines, the judicial declaration of nullity of a
previous marriage is a defense.
The petitioner insists that except for the period of
absences provided for in Article 390 of the Civil Code, the In his commentary on the Revised Penal Code,
rule therein on legal presumptions remains valid and Albert is of the same view as Viada and declared that there
effective. Nowhere under Article 390 of the Civil Code does it are three (3) elements of bigamy: (1) an undissolved
require that there must first be a judicial declaration of death marriage; (2) a new marriage; and (3) fraudulent intention
[28]
before the rule on presumptive death would apply. He further constituting the felony of the act. He explained that:
asserts that contrary to the rulings of the trial and appellate
courts, the requirement of a judicial declaration of
This last element is not stated in Article 349, death of the absent spouse is for the benefit of the spouse
because it is undoubtedly incorporated in the present, as protection from the pains and the consequences
principle antedating all codes, and, constituting of a second marriage, precisely because he/she could be
one of the landmarks of our Penal Code, that, charged and convicted of bigamy if the defense of good faith
where there is no willfulness there is no crime. based on mere testimony is found incredible.
There is no willfulness if the subject
believes that the former marriage has been The requirement of judicial declaration is also for the
dissolved; and this must be supported by very benefit of the State. Under Article II, Section 12 of the
strong evidence, and if this be produced, the act Constitution, the State shall protect and strengthen the family
shall be deemed not to constitute a crime. Thus, as a basic autonomous social institution. Marriage is a social
a person who contracts a second marriage in the institution of the highest importance. Public policy, good
reasonable and well-founded belief that his first morals and the interest of society require that the marital
wife is dead, because of the many years that relation should be surrounded with every safeguard and its
have elapsed since he has had any news of her severance only in the manner prescribed and the causes
[37]
whereabouts, in spite of his endeavors to find specified by law. The laws regulating civil marriages are
her, cannot be deemed guilty of the crime of necessary to serve the interest, safety, good order, comfort or
bigamy, because there is no fraudulent intent general welfare of the community and the parties can waive
which is one of the essential elements of the nothing essential to the validity of the proceedings. A civil
[29]
crime. marriage anchors an ordered society by encouraging stable
relationships over transient ones; it enhances the welfare of
the community.
As gleaned from the Information in the RTC, the petitioner is
charged with bigamy, a felony by dolo (deceit). Article 3, In a real sense, there are three parties to every civil
paragraph 2 of the Revised Penal Code provides that there is marriage; two willing spouses and an approving State. On
deceit when the act is performed with deliberate intent. marriage, the parties assume new relations to each other and
Indeed, a felony cannot exist without intent. Since a felony the State touching nearly on every aspect of life and death.
by dolo is classified as an intentional felony, it is deemed The consequences of an invalid marriage to the parties, to
[30]
voluntary. Although the words with malice do not appear in innocent parties and to society, are so serious that the law
Article 3 of the Revised Penal Code, such phrase is included may well take means calculated to ensure the procurement of
[31]
in the word voluntary. the most positive evidence of death of the first spouse or of
[38]
the presumptive death of the absent spouse after the lapse
Malice is a mental state or condition prompting the of the period provided for under the law. One such means is
doing of an overt act without legal excuse or justification from the requirement of the declaration by a competent court of
[32]
which another suffers injury. When the act or omission the presumptive death of an absent spouse as proof that the
defined by law as a felony is proved to have been done or present spouse contracts a subsequent marriage on a well-
committed by the accused, the law presumes it to have been grounded belief of the death of the first spouse. Indeed, men
[33]
intentional. Indeed, it is a legal presumption of law that readily believe what they wish to be true, is a maxim of the
every man intends the natural or probable consequence of old jurists. To sustain a second marriage and to vacate a first
his voluntary act in the absence of proof to the contrary, and because one of the parties believed the other to be dead
such presumption must prevail unless a reasonable doubt would make the existence of the marital relation
[34]
exists from a consideration of the whole evidence. determinable, not by certain extrinsic facts, easily capable of
forensic ascertainment and proof, but by the subjective
[39]
For one to be criminally liable for a felony by dolo, there must condition of individuals. Only with such proof can marriage
be a confluence of both an evil act and an evil intent. Actus be treated as so dissolved as to permit second
[35] [40]
non facit reum, nisi mens sit rea. marriages. Thus, Article 349 of the Revised Penal Code
has made the dissolution of marriage dependent not only
In the present case, the prosecution proved that the petitioner upon the personal belief of parties, but upon certain objective
was married to Gaa in 1975, and such marriage was not facts easily capable of accurate judicial
[41]
judicially declared a nullity; hence, the marriage is presumed cognizance, namely, a judgment of the presumptive death
[36]
to subsist. The prosecution also proved that the petitioner of the absent spouse.
married the private complainant in 1996, long after the
effectivity of the Family Code. The petitioners sole reliance on Article 390 of the
Civil Code as basis for his acquittal for bigamy is misplaced.
The petitioner is presumed to have acted with
malice or evil intent when he married the private complainant. Articles 390 and 391 of the Civil Code provide:
As a general rule, mistake of fact or good faith of the accused
is a valid defense in a prosecution for a felony by dolo; such Art. 390. After an absence of seven years, it
defense negates malice or criminal intent. However, being unknown whether or not, the absentee
ignorance of the law is not an excuse because everyone is still lives, he shall be presumed dead for all
presumed to know the law. Ignorantia legis neminem purposes, except for those of succession.
excusat.
The absentee shall not be presumed dead
It was the burden of the petitioner to prove his for the purpose of opening his succession till
defense that when he married the private complainant in after an absence of ten years. If he
1996, he was of the well-grounded belief disappeared after the age of seventy-five
that his first wife was already dead, as he had not heard from years, an absence of five years shall be
her for more than 20 years since 1975. He should have sufficient in order that his succession may be
adduced in evidence a decision of a competent court opened.
declaring the presumptive death of his first wife as required
by Article 349 of the Revised Penal Code, in relation to Article Art. 391. The following shall be presumed
41 of the Family Code. Such judicial declaration also dead for all purposes, including the division of
constitutes proof that the petitioner acted in good faith, and the estate among the heirs:
would negate criminal intent on his part when he married the
private complainant and, as a consequence, he could not be (1) A person on board a vessel lost during a
held guilty of bigamy in such case. The petitioner, however, sea voyage, or an aeroplane which is
failed to discharge his burden. missing, who has not been heard of for
four years since the loss of the vessel
The phrase or before the absent spouse has been or aeroplane;
declared presumptively dead by means of a judgment (2) A person in the armed forces who has taken
rendered on the proceedings in Article 349 of the Revised part in war, and has been missing for
Penal Code was not an aggroupment of empty or useless four years;
words. The requirement for a judgment of the presumptive
(3) A person who has been in danger of death the spouse present does not know his or her former spouse
under other circumstances and his to be living, that such former spouse is generally reputed to
existence has not been known for four be dead and the spouse present so believes at the time of
[48] [49]
years. the celebration of the marriage. In In Re Szatraw, the
Court declared that a judicial declaration that a person is
The presumption of death of the spouse who had presumptively dead, because he or she had been unheard
been absent for seven years, it being unknown whether or from in seven years, being a presumption juris tantum only,
not the absentee still lives, is created by law and arises subject to contrary proof, cannot reach the stage of finality or
[42]
without any necessity of judicial declaration. However, become final; and that proof of actual death of the person
Article 41 of the Family Code, which amended the foregoing presumed dead being unheard from in seven years, would
rules on presumptive death, reads: have to be made in another proceeding to have such
particular fact finally determined. The Court ruled that if a
Art. 41. A marriage contracted by any person during judicial decree declaring a person presumptively dead
the subsistence of a previous marriage shall be null because he or she had not been heard from in seven years
and void, unless before the celebration of the cannot become final and executory even after the lapse of
subsequent marriage, the prior spouse had been the reglementary period within which an appeal may be
absent for four consecutive years and the spouse taken, for such presumption is still disputable and remains
present had a well-founded belief that the absent subject to contrary proof, then a petition for such a
spouse was already dead. In case of disappearance declaration is useless, unnecessary, superfluous and of no
where there is danger of death under the benefit to the petitioner. The Court stated that it should not
circumstances set forth in the provisions of Article waste its valuable time and be made to perform a superfluous
[50]
391 of the Civil Code, an absence of only two years and meaningless act. The Court also took note that a
shall be sufficient. petition for a declaration of the presumptive death of an
absent spouse may even be made in collusion with the other
For the purpose of contracting the subsequent spouse.
marriage under the preceding paragraph, the spouse
[51]
present must institute a summary proceeding as In Lukban v. Republic of the Philippines, the Court
provided in this Court for the declaration of declared that the words proper proceedings in Article 349 of
presumptive death of the absentee, without prejudice the Revised Penal Code can only refer to those authorized by
to the effect of reappearance of the absent law such as Articles 390 and 391 of the Civil Code which
[43]
spouse. refer to the administration or settlement of the estate of a
deceased person. In Gue v. Republic of the
[44] [52]
With the effectivity of the Family Code, the period Philippines, the Court rejected the contention of the
of seven years under the first paragraph of Article 390 of the petitioner therein that, under Article 390 of the Civil Code, the
Civil Code was reduced to four consecutive years. Thus, courts are authorized to declare the presumptive death of a
before the spouse present may contract a subsequent person after an absence of seven years. The Court reiterated
marriage, he or she must institute summary proceedings for its rulings in Szatraw, Lukban and Jones.
the declaration of the presumptive death of the absentee
[45]
spouse, without prejudice to the effect of the reappearance Former Chief Justice Ramon C. Aquino was of the
of the absentee spouse. As explained by this Court in Armas view that the provision of Article 349 or before the absent
[46]
v. Calisterio: spouse has been declared presumptively dead by means of a
judgment reached in the proper proceedings is erroneous
In contrast, under the 1988 Family Code, in order and should be considered as not written. He opined that such
that a subsequent bigamous marriage may provision presupposes that, if the prior marriage has not been
exceptionally be considered valid, the following legally dissolved and the absent first spouse has not been
conditions must concur, viz.: (a) The prior spouse of declared presumptively dead in a proper court proceedings,
the contracting party must have been absent for four the subsequent marriage is bigamous. He maintains that the
[53]
consecutive years, or two years where there is danger supposition is not true. A second marriage is bigamous
of death under the circumstances stated in Article 391 only when the circumstances in paragraphs 1 and 2 of Article
[54]
of the Civil Code at the time of disappearance; (b) the 83 of the Civil Code are not present. Former Senator
spouse present has a well-founded belief that the Ambrosio Padilla was, likewise, of the view that Article 349
absent spouse is already dead; and (c) there is, unlike seems to require judicial decree of dissolution or judicial
the old rule, a judicial declaration of presumptive death declaration of absence but even with such decree, a second
of the absentee for which purpose the spouse present marriage in good faith will not constitute bigamy. He posits
can institute a summary proceeding in court to ask for that a second marriage, if not illegal, even if it be annullable,
[55]
that declaration. The last condition is consistent and in should not give rise to bigamy. Former Justice Luis B.
consonance with the requirement of judicial Reyes, on the other hand, was of the view that in the case of
intervention in subsequent marriages as so provided in an absent spouse who could not yet be presumed dead
Article 41, in relation to Article 40, of the Family Code. according to the Civil Code, the spouse present cannot be
charged and convicted of bigamy in case he/she contracts a
[56]
The Court rejects petitioners contention that the second marriage.
requirement of instituting a petition for declaration of
presumptive death under Article 41 of the Family Code is The Committee tasked to prepare the Family Code
designed merely to enable the spouse present to contract a proposed the amendments of Articles 390 and 391 of the
valid second marriage and not for the acquittal of one Civil Code to conform to Article 349 of the Revised Penal
charged with bigamy. Such provision was designed to Code, in that, in a case where a spouse is absent for the
harmonize civil law and Article 349 of the Revised Penal requisite period, the present spouse may contract a
Code, and put to rest the confusion spawned by the rulings of subsequent marriage only after securing a judgment
this Court and comments of eminent authorities on Criminal declaring the presumptive death of the absent spouse to
Law. avoid being charged and convicted of bigamy; the present
spouse will have to adduce evidence that he had a well-
As early as March 6, 1937, this Court ruled in Jones founded belief that the absent spouse was already
[47] [57]
v. Hortiguela that, for purposes of the marriage law, it is not dead. Such judgment is proof of the good faith of the
necessary to have the former spouse judicially declared an present spouse who contracted a subsequent marriage; thus,
absentee before the spouse present may contract a even if the present spouse is later charged with bigamy if the
subsequent marriage. It held that the declaration of absence absentee spouse reappears, he cannot be convicted of the
made in accordance with the provisions of the Civil Code has crime. As explained by former Justice Alicia Sempio-Diy:
for its sole purpose the taking of the necessary precautions
for the administration of the estate of the absentee. For the Such rulings, however, conflict with Art. 349 of the
celebration of civil marriage, however, the law only requires Revised Penal Code providing that the present spouse
that the former spouse had been absent for seven must first ask for a declaration of presumptive death of
consecutive years at the time of the second marriage, that
the absent spouse in order not to be guilty of bigamy in adjudicacin de daos morales en los delitos
case he or she marries again. de estupro, rapto, violacin, adulterio o
concubinato, y otros actos lascivos, sin
The above Article of the Family Code now incluir en esta enumeracin el delito de
clearly provides that for the purpose of the present bigamia. No existe, por consiguiente, base
spouse contracting a second marriage, he or she must legal para adjudicar aqu los daos
[64]
file a summary proceeding as provided in the Code for de P5,000.00 arriba mencionados.
the declaration of the presumptive death of the
absentee, without prejudice to the latters reappearance. The OSG posits that the findings and ruling of the
This provision is intended to protect the present spouse CA are based on the evidence and the law. The OSG,
from a criminal prosecution for bigamy under Art. 349 of likewise, avers that the CA was not bound by its ruling
the Revised Penal Code because with the judicial in People v. Rodeo.
declaration that the missing spouses presumptively
dead, the good faith of the present spouse in contracting The Court rules against the petitioner.
[58]
a second marriage is already established.
Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation,
Of the same view is former Dean Ernesto L. Pineda wounded feelings, moral shock, social humiliation, and similar
(now Undersecretary of Justice) who wrote that things are injury. Though incapable of pecuniary computation, moral
now clarified. He says judicial declaration of presumptive damages may be recovered if they are the proximate result of
[65]
death is now authorized for purposes of the defendants wrongful act or omission. An award for
remarriage. The present spouse must institute a summary moral damages requires the confluence of the following
proceeding for declaration of presumptive death of the conditions: first, there must be an injury, whether physical,
absentee, where the ordinary rules of procedure in trial will mental or psychological, clearly sustained by the
not be followed. Affidavits will suffice, with possible claimant; second, there must be culpable act or omission
clarificatory examinations of affiants if the Judge finds it factually established; third, the wrongful act or omission of the
necessary for a full grasp of the facts. The judgment defendant is the proximate cause of the injury sustained by
declaring an absentee as presumptively dead is without the claimant; and fourth, the award of damages is predicated
prejudice to the effect of reappearance of the said absentee. on any of the cases stated in Article 2219 or Article 2220 of
[66]
the Civil Code.
Dean Pineda further states that before, the weight of
authority is that the clause before the absent spouse has Moral damages may be awarded in favor of the
been declared presumptively dead x x x should be offended party only in criminal cases enumerated in Article
disregarded because of Article 83, paragraph 3 of the Civil 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and
Code. With the new law, there is a need to institute a analogous cases, viz.:
summary proceeding for the declaration of the presumptive Art. 2219. Moral damages may be
[59]
death of the absentee, otherwise, there is bigamy. recovered in the following and analogous
cases.
According to Retired Supreme Court Justice Florenz D.
Regalado, an eminent authority on Criminal Law, in some (1) A criminal offense resulting in physical
cases where an absentee spouse is believed to be dead, injuries;
there must be a judicial declaration of presumptive death, (2) Quasi-delicts causing physical injuries;
which could then be made only in the proceedings for the (3) Seduction, abduction, rape, or other
[60]
settlement of his estate. Before such declaration, it was lascivious acts;
held that the remarriage of the other spouse is bigamous (4) Adultery or concubinage;
[61]
even if done in good faith. Justice Regalado opined that (5) Illegal or arbitrary detention or arrest;
there were contrary views because of the ruling in Jones and (6) Illegal search;
the provisions of Article 83(2) of the Civil Code, which, (7) Libel, slander or any other form of
however, appears to have been set to rest by Article 41 of the defamation;
Family Code, which requires a summary hearing for the (8) Malicious prosecution;
declaration of presumptive death of the absent spouse before (9) Acts mentioned in article 309;
the other spouse can remarry. (10) Acts and actions referred to in articles 21,
26, 27, 28, 29, 30, 32, 34 and 35.
Under Article 238 of the Family Code, a petition for a
declaration of the presumptive death of an absent spouse The parents of the female seduced, abducted,
under Article 41 of the Family Code may be filed under raped, or abused, referred to in No. 3 of this
[62]
Articles 239 to 247 of the same Code. article, may also recover moral damages.

On the second issue, the petitioner, likewise, faults the trial The spouse, descendants, ascendants, and
court and the CA for awarding moral damages in favor of the brothers and sisters may bring the action
private complainant. The petitioner maintains that moral mentioned in No. 9 of this article in the order
damages may be awarded only in any of the cases provided named.
in Article 2219 of the Civil Code, and bigamy is not one of
them. The petitioner asserts that the appellate court failed to Thus, the law does not intend that moral damages should be
[63]
apply its ruling in People v. Bondoc, where an award of awarded in all cases where the aggrieved party has suffered
moral damages for bigamy was disallowed. In any case, the mental anguish, fright, moral anxieties, besmirched
petitioner maintains, the private complainant failed to adduce reputation, wounded feelings, moral shock, social humiliation
evidence to prove moral damages. and similar injury arising out of an act or omission of another,
otherwise, there would not have been any reason for the
[67]
The appellate court awarded moral damages to the inclusion of specific acts in Article 2219 and analogous
private complainant on its finding that she adduced evidence cases (which refer to those cases bearing analogy or
to prove the same. The appellate court ruled that while resemblance, corresponds to some others or resembling, in
[68]
bigamy is not included in those cases enumerated in Article other respects, as in form, proportion, relation, etc.)
2219 of the Civil Code, it is not proscribed from awarding
moral damages against the petitioner. The appellate court Indeed, bigamy is not one of those specifically
ruled that it is not bound by the following ruling in People v. mentioned in Article 2219 of the Civil Code in which the
Bondoc: offender may be ordered to pay moral damages to the private
complainant/offended party. Nevertheless, the petitioner is
... Pero si en dichos asuntos se liable to the private complainant for moral damages under
adjudicaron daos, ello se debi Article 2219 in relation to Articles 19, 20 and 21 of the Civil
indedublamente porque el articulo 2219 del Code.
Cdigo Civil de Filipinas autoriza la
According to Article 19, every person must, in the shame, humiliation, and mental anguish. See
exercise of his rights and in the performance of his act with Spiegel v. Evergreen Cemetery Co., 117 NJL 90,
justice, give everyone his due, and observe honesty and 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery
good faith. This provision contains what is commonly referred Workers, etc., Local 24, 27 N.J. Super, 579, 591,
to as the principle of abuse of rights, and sets certain 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p.
standards which must be observed not only in the exercise of 38. Here the defendants conduct was not merely
ones rights but also in the performance of ones duties. The negligent, but was willfully and maliciously
standards are the following: act with justice; give everyone wrongful. It was bound to result in shame,
his due; and observe honesty and good faith. The elements humiliation, and mental anguish for the plaintiff,
for abuse of rights are: (a) there is a legal right or duty; (b) and when such result did ensue the plaintiff
exercised in bad faith; and (c) for the sole intent of prejudicing became entitled not only to compensatory but also
[69]
or injuring another. to punitive damages. See Spiegel v. Evergreen
Cemetery Co., supra; Kuzma v Millinery Workers,
Article 20 speaks of the general sanctions of all etc., Local 24, supra. CF. Note, Exemplary
other provisions of law which do not especially provide for its Damages in the Law of Torts, 70 Harv. L. Rev. 517
own sanction. When a right is exercised in a manner which (1957). The plaintiff testified that because of the
does not conform to the standards set forth in the said defendants bigamous marriage to her and the
provision and results in damage to another, a legal wrong is attendant publicity she not only was embarrassed
thereby committed for which the wrongdoer must be and ashamed to go out but couldnt sleep but
[70]
responsible. If the provision does not provide a remedy for couldnt eat, had terrific headaches and lost quite a
its violation, an action for damages under either Article 20 or lot of weight. No just basis appears for judicial
Article 21 of the Civil Code would be proper. Article 20 interference with the jurys reasonable allowance of
provides that every person who, contrary to law, willfully or $1,000 punitive damages on the first count. See
negligently causes damage to another shall indemnify the Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d
[74]
latter for the same. On the other hand, Article 21 provides 298 (App. Div. 1955).
that any person who willfully causes loss or injury to another
in a manner that is contrary to morals, good customs or The Court thus declares that the petitioners acts are against
public policy shall compensate the latter for damages. The public policy as they undermine and subvert the family as a
latter provision social institution, good morals and the interest and general
is adopted to remedy the countless gaps in the statutes which welfare of society.
leave so many victims of moral wrongs helpless, even though
they have actually suffered material and moral injury should Because the private complainant was an innocent
vouchsafe adequate legal remedy for that untold number of victim of the petitioners perfidy, she is not barred from
moral wrongs which it is impossible for human foresight to claiming moral damages. Besides, even considerations of
prove for specifically in the statutes. Whether or not the public policy would not prevent her from recovery. As held
[75]
principle of abuse of rights has been violated resulting in in Jekshewitz v. Groswald:
damages under Article 20 or Article 21 of the Civil Code or
other applicable provisions of law depends upon the Where a person is induced by the fraudulent
[71]
circumstances of each case. representation of another to do an act which, in
consequence of such misrepresentation, he
In the present case, the petitioner courted the private believes to be neither illegal nor immoral, but
complainant and proposed to marry her. He assured her that which is in fact a criminal offense, he has a right
he was single. He even brought his parents to the house of of action against the person so inducing him for
the private complainant where he and his parents made the damages sustained by him in consequence of
same assurance that he was single. Thus, the private his having done such act. Burrows v. Rhodes,
complainant agreed to marry the petitioner, who even stated [1899] 1 Q.B. 816. In Cooper v. Cooper, 147
in the certificate of marriage that he was single. She lived Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the
with the petitioner and dutifully performed her duties as his court said that a false representation by the
wife, believing all the while that he was her lawful husband. defendant that he was divorced from his former
For two years or so until the petitioner heartlessly abandoned wife, whereby the plaintiff was induced to marry
her, the private complainant had no inkling that he was him, gave her a remedy in tort for deceit. It
already married to another before they were married. seems to have been assumed that the fact that
she had unintentionally violated the law or
Thus, the private complainant was an innocent innocently committed a crime by cohabiting with
victim of the petitioners chicanery and heartless deception, him would be no bar to the action, but rather that
the fraud consisting not of a single act alone, but a it might be a ground for enhancing her damages.
continuous series of acts. Day by day, he maintained the The injury to the plaintiff was said to be in her
appearance of being a lawful husband to the private being led by the promise to give the fellowship
complainant, who and assistance of a wife to one who was not her
changed her status from a single woman to a married husband and to assume and act in a relation and
woman, lost the consortium, attributes and support of a single condition that proved to be false and
man she could have married lawfully and endured mental ignominious. Damages for such an injury were
pain and humiliation, being bound to a man who it turned out held to be recoverable in Sherman v. Rawson,
[72]
was not her lawful husband. 102 Mass. 395 and Kelley v. Riley, 106 Mass.
339, 343, 8 Am. Rep. 336.
The Court rules that the petitioners collective acts of
fraud and deceit before, during and after his marriage with Furthermore, in the case at bar the plaintiff does
the private complainant were willful, deliberate and with not base her cause of action upon any
malice and caused injury to the latter. That she did not transgression of the law by herself but upon the
sustain any physical injuries is not a bar to an award for defendants misrepresentation. The criminal
[73]
moral damages. Indeed, in Morris v. Macnab, the New relations which followed, innocently on her part,
Jersey Supreme Court ruled: were but one of the incidental results of the
defendants fraud for which damages may be
xxx The defendant cites authorities which indicate assessed.
that, absent physical injuries, damages for shame,
humiliation, and mental anguish are not [7] Actions for deceit for fraudulently
recoverable where the actor is simply negligent. inducing a woman to enter into the marriage
See Prosser, supra, at p. 180; 2 Harper & James, relation have been maintained in other
Torts, 1031 (1956). But the authorities all recognize jurisdictions. Sears v. Wegner, 150 Mich. 388,
that where the wrong is willful rather than negligent, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v.
recovery may be had for the ordinary, natural, and McMillan, 99 Wash. 626, 170 P. 324; Blossom v.
proximate consequences though they consist of Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v.
Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. in-law, he learned from his father-in-law that Lea had been to
[10]
Considerations of public policy would not prevent their house but that she left without notice. Alan sought the
recovery where the circumstances are such that help of Barangay Captain Juan Magat, who promised to help
the plaintiff was conscious of no moral turpitude, him locate his wife. He also inquired from his friends of Leas
[11]
that her illegal action was induced solely by the whereabouts but to no avail.
defendants misrepresentation, and that she does
not base her cause of action upon any Sometime in June 1995, he decided to go to Manila
transgression of the law by herself. Such to look for Lea, but his mother asked him to leave after the
considerations town fiesta of Catbalogan, hoping that Lea may come home
[12]
distinguish this case from cases in which the for the fiesta. Alan agreed. However, Lea did not show up.
court has refused to lend its aid to the Alan then left for Manila on August 27, 1995. He went to a
enforcement of a contract illegal on its face or to house in Navotas where Janeth, Leas friend, was staying.
one who has consciously and voluntarily become When asked where Lea was, Janeth told him that she had
[13]
a party to an illegal act upon which the cause of not seen her. He failed to find out Leas whereabouts
action is founded. Szadiwicz v. Cantor, 257 despite his repeated talks with Janeth. Alan decided to work
Mass. 518, 520, 154 N.E. 251, 49 A. L. R. as a part-time taxi driver. On his free time, he would look for
[76]
958. Lea in the malls but still to no avail. He returned to
Catbalogan in 1997 and again looked for his wife but
[14]
failed.
Considering the attendant circumstances of the case, the
Court finds the award of P200,000.00 for moral damages to On June 20, 2001, Alan reported Leas
[15]
be just and reasonable. disappearance to the local police station. The police
[16]
authorities issued an Alarm Notice on July 4, 2001. Alan
IN LIGHT OF ALL THE FOREGOING, the petition also reported Leas disappearance to the National Bureau of
[17]
is DENIED. The assailed decision of the Court of Appeals Investigation (NBI) on July 9, 2001.
is AFFIRMED. Costs against the petitioner.
Barangay Captain Juan Magat corroborated the
SO ORDERED. testimony of Alan. He declared that on February 14, 1995, at
2:00 p.m., Alan inquired from him if Lea passed by his house
and he told Alan that she did not. Alan also told him that Lea
REPUBLIC vs. CA AND ALEGRO had disappeared. He had not seen Lea in the barangay ever
[18]
since. Leas father, who was his compadre and the owner
CALLEJO, SR., J.: of Radio DYMS, told him that he did not know where Lea
[19]
was.

On March 29, 2001, Alan B. Alegro filed a petition in the After Alan rested his case, neither the Office of the
Regional Trial Court (RTC) of Catbalogan, Samar, Branch 27, Provincial Prosecutor nor the Solicitor General adduced
for the declaration of presumptive death of his wife, Rosalia evidence in opposition to the petition.
(Lea) A. Julaton.
On January 8, 2002, the court rendered judgment
[1]
In an Order dated April 16, 2001, the court set the granting the petition. The fallo of the decision reads:
petition for hearing on May 30, 2001 at 8:30 a.m. and
directed that a copy of the said order be published once a WHEREFORE, and in view of all the foregoing,
week for three (3) consecutive weeks in the Samar petitioners absent spouse ROSALIA JULATON
Reporter, a newspaper of general circulation in the Province is hereby declared PRESUMPTIVELY DEAD for
of Samar, and the purpose of the petitioners subsequent
that a copy be posted in the courts bulletin board for at least marriage under Article 41 of the Family Code of
three weeks before the next scheduled hearing. The court the Philippines, without prejudice to the effect of
also directed that copies of the order be served on the reappearance of the said absent spouse.
Solicitor General, the Provincial Prosecutor of Samar, and [20]
Alan, through counsel, and that copies be sent to Lea by SO ORDERED.
registered mail. Alan complied with all the foregoing
jurisdictional requirements.
[2] The OSG appealed the decision to the Court of Appeals (CA)
which rendered judgment on August 4, 2003, affirming the
[21]
On May 28, 2001, the Republic of the Philippines, decision of the RTC. The CA cited the ruling of this Court
[22]
through the Office of the Solicitor General (OSG), filed a in Republic v. Nolasco.
[3]
Motion to Dismiss the petition, which was, however, denied
by the court for failure to comply with Rule 15 of the Rules of The OSG filed a petition for review on certiorari of the CAs
Court.
[4] decision alleging that respondent Alan B. Alegro failed to
prove that he had a well-founded belief that Lea was already
[23]
At the hearing, Alan adduced evidence that he and dead. It averred that the respondent failed to exercise
Lea were married on January 20, 1995 in Catbalogan, reasonable and diligent efforts to locate his wife. The
[5]
Samar. He testified that, on February 6, 1995, Lea arrived respondent even admitted that Leas father told him on
home late in the evening and he berated her for being always February 14, 1995 that Lea had been to their house but left
out of their house. He told her that if she enjoyed the life of a without notice. The OSG pointed out that the respondent
single person, it would be better for her to go back to her reported his wifes disappearance to the local police and also
[6]
parents. Lea did not reply. Alan narrated that, when he to the NBI only after the petitioner filed a motion to dismiss
reported for work the following day, Lea was still in the house, the petition. The petitioner avers that, as gleaned from the
but when he arrived home later in the day, Lea was nowhere evidence, the respondent did not really want to find and
[7]
to be found. Alan thought that Lea merely went to her locate Lea. Finally, the petitioner averred:
parents house in Bliss, Sto. Nio, Catbalogan, In view of the summary nature of proceedings under
[8]
Samar. However, Lea did not return to their house Article 41 of the Family Code for the declaration of
anymore. presumptive death of ones spouse, the degree of
due diligence set by this Honorable Court in the
Alan further testified that, on February 14, 1995, above-mentioned cases in locating the whereabouts
after his work, he went to the house of Leas parents to see if of a missing spouse must be strictly complied with.
she was there, but he was told that she was not there. He There have been times when Article 41 of the Family
also went to the house of Leas friend, Janeth Bautista, Code had been resorted to by parties wishing to
at Barangay Canlapwas, but he was informed by Janettes remarry knowing fully well that their alleged missing
brother-in-law, Nelson Abaenza, that Janeth had left for spouses are alive and well. It is even possible that
[9]
Manila. When Alan went back to the house of his parents- those who cannot have their marriages x x x
declared null and void under Article 36 of the Family
Code resort to Article 41 of the Family Code for relief failed to present Janeth Bautista or Nelson Abaenza or any
because of the x x x summary nature of its other person from whom he allegedly made inquiries about
proceedings. Lea to corroborate his testimony. On the other hand, the
respondent admitted that when he returned to the house of
It is the policy of the State to protect and strengthen his parents-in-law on February 14, 1995, his father-in-law told
the family as a basic social institution. Marriage is the him that Lea had just been there but that she left without
foundation of the family. Since marriage is an notice.
inviolable social institution that the 1987 Constitution The respondent declared that Lea left their abode on
seeks to protect from dissolution at the whim of the February 7, 1995 after he chided her for coming home late
parties. For respondents failure to prove that he had and for being always out of their house, and told her that it
a well-founded belief that his wife is already would be better for her to go home to her parents if she
dead and that he exerted the required amount of enjoyed the life of a single person. Lea, thus, left their
diligence in searching for his missing wife, the conjugal abode and never returned. Neither did she
petition for declaration of presumptive death should communicate with the respondent after leaving the conjugal
have been denied by the trial court and the abode because of her resentment to the chastisement she
[24]
Honorable Court of Appeals. received from him barely a month after their marriage. What
is so worrisome is that, the respondent failed to make
The petition is meritorious. inquiries from his parents-in-law regarding Leas whereabouts
before filing his petition in the RTC. It could have enhanced
Article 41 of the Family Code of the Philippines reads: the credibility of the respondent had he made inquiries from
Art. 41. A marriage contracted by any person his parents-in-law about Leas whereabouts considering that
during the subsistence of a previous marriage Leas father was the owner of Radio DYMS.
shall be null and void, unless before the
celebration of the subsequent marriage, the prior The respondent did report and seek the help of the local
spouse had been absent for four consecutive police authorities and the NBI to locate Lea, but it was only
years and the spouse present had a well- an afterthought. He did so only after the OSG filed its notice
founded belief that the absent spouse was to dismiss his petition in the RTC.
already dead. In case of disappearance where In sum, the Court finds and so holds that the
there is danger under the circumstances set respondent failed to prove that he had a well-founded belief,
forth in the provisions of Article 391 of the Civil before he filed his petition in the RTC, that his spouse
Code, an absence of only two years shall be Rosalia (Lea) Julaton was already dead.
sufficient.
IN LIGHT OF ALL THE FOREGOING, the petition
For the purpose of contracting the subsequent is GRANTED. The Decision of the Court of Appeals in CA-
marriage under the preceding paragraph, the G.R. CV No. 73749 is REVERSED and SET
spouse present must institute a summary ASIDE. Consequently, the Regional Trial Court of
proceeding as provided in this Code for the Catbalogan, Samar, Branch 27,
declaration of presumptive death of the is ORDERED to DISMISS the respondents petition.
absentee, without prejudice to the effect of
[25]
reappearance of the absent spouse. SO ORDERED.

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.
Cuello Callon writes that es menester que su creencia sea
[26]
firme se funde en motivos racionales.

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
[27]
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
[28]
and extent of the inquiries made by present spouse.

Although testimonial evidence may suffice to prove the well-


founded belief of the present spouse that the absent spouse
[29]
is already dead, in Republic v. Nolasco, the Court warned
against collusion between the parties when they find it
impossible to dissolve the marital bonds through existing
legal means. It is also the maxim that men readily believe
what they wish to be true.
SSS vs. VDA. DE BAILON
In this case, the respondent failed to present a witness other
than Barangay Captain Juan Magat. The respondent even
[1]
The Court of Appeals Decision dated June 23, she was not dependent upon Bailon for support during his
[2] [3]
2004 and Resolution dated September 28, 2004 reversing lifetime; and the payment of the balance of the five-year
[4]
the Resolution dated April 2, 2003 and Order dated June 4, guaranteed pension to Bailons beneficiaries according to the
[5]
2003 of the Social Security Commission (SSC) in SSC order of preference provided under the law, after the amount
Case No. 4-15149-01 are challenged in the present petition erroneously paid to respondent has been collected. The
for review on certiorari. pertinent portions of the Memorandum read:

On April 25, 1955, Clemente G. Bailon (Bailon) and 1. Aliz [sic] Diaz never disappeared. The court
Alice P. Diaz (Alice) contracted marriage in Barcelona, must have been misled by misrepresentation
[6]
Sorsogon. in declaring the first wife, Aliz [sic] Diaz, as
presumptively dead.
More than 15 years later or on October 9, 1970,
Bailon filed before the then Court of First Instance (CFI) of xxxx
[7]
Sorsogon a petition to declare Alice presumptively dead.
x x x the Order of the court in the Petition to
[8]
By Order of December 10, 1970, the CFI granted Declare Alice Diaz Presumptively Dead, did
the petition, disposing as follows: not become final. The presence of Aliz [sic]
Diaz, is contrary proof that rendered it invalid.
WHEREFORE, there being no opposition filed xxxx
against the petition notwithstanding the
publication of the Notice of Hearing in a 3. It was the deceased member who
newspaper of general circulation in the country, abandoned his wife, Aliz [sic] Diaz. He, being
Alice Diaz is hereby declared to [sic] all legal in bad faith, and is the deserting spouse, his
intents and purposes, except for those of remarriage is void, being bigamous.
succession, presumptively dead.
xxxx
[9]
SO ORDERED. (Underscoring supplied)
In this case, it is the deceased member who was
the deserting spouse and who remarried, thus his
Close to 13 years after his wife Alice was declared marriage to Teresita Jarque, for the second time
presumptively dead or on August 8, 1983, Bailon contracted was void as it was bigamous. To require affidavit of
marriage with Teresita Jarque (respondent) in Casiguran, reappearance to terminate the second marriage is
[10]
Sorsogon. not necessary as there is no disappearance of Aliz
[sic] Diaz, the first wife, and a voidable marriage
[21]
On January 30, 1998, Bailon, who was a member of [sic], to speak of. (Underscoring supplied)
the Social Security System (SSS) since 1960 and a retiree
[11]
pensioner thereof effective July 1994, died.
In the meantime, the SSS Sorsogon Branch, by
[22]
Respondent thereupon filed a claim for funeral letter of August 16, 2000, advised respondent that as
[12]
benefits, and was granted P12,000 by the SSS. Cecilia and Norma were the ones who defrayed Bailons
funeral expenses, she should return the P12,000 paid to her.
Respondent filed on March 11, 1998 an additional
[13] [23]
claim for death benefits which was also granted by the In a separate letter dated September 7, 1999, the
[14]
SSS on April 6, 1998. SSS advised respondent of the cancellation of her monthly
pension for death benefits in view of the opinion rendered by
Cecilia Bailon-Yap (Cecilia), who claimed to be a its legal department that her marriage with Bailon was void as
daughter of Bailon and one Elisa Jayona (Elisa) contested it was contracted while the latters marriage with Alice was still
before the SSS the release to respondent of the death and subsisting; and the December 10, 1970 CFI Order declaring
funeral benefits. She claimed that Bailon contracted three Alice presumptively dead did not become final, her presence
marriages in his lifetime, the first with Alice, the second with being contrary proof against the validity of the order. It thus
her mother Elisa, and the third with respondent, all of whom requested respondent to return the amount of P24,000
are still alive; she, together with her siblings, paid for Bailons representing the total amount of monthly pension she had
medical and funeral expenses; and all the documents received from the SSS from February 1998 to May 1999.
submitted by respondent to the SSS in support of her claims
are spurious. Respondent protested the cancellation of her
monthly pension for death benefits by letter to the SSS
[24]
In support of her claim, Cecilia and her sister Norma dated October 12, 1999. In a subsequent letter dated
[25]
Bailon Chavez (Norma) submitted an Affidavit dated February November 27, 1999 to the SSC, she reiterated her request
[15]
13, 1999 averring that they are two of nine children of for the release of her monthly pension, asserting that her
Bailon and Elisa who cohabited as husband and wife as early marriage with Bailon was not declared before any court of
as 1958; and they were reserving their right to file the justice as bigamous or unlawful, hence, it remained valid and
necessary court action to contest the marriage between subsisting for all legal intents and purposes as in fact Bailon
Bailon and respondent as they personally know that Alice is designated her as his beneficiary.
[16]
still very much alive.
The SSS, however, by letter to respondent
[26]
In the meantime, on April 5, 1999, a certain Hermes dated January 21, 2000, maintained the denial of her claim
P. Diaz, claiming to be the brother and guardian of Aliz P. for and the discontinuance of payment of monthly pension. It
Diaz, filed before the SSS a claim for death benefits accruing advised her, however, that she was not deprived of her right
[17]
from Bailons death, he further attesting in a sworn to file a petition with the SSC.
[18]
statement that it was Norma who defrayed Bailons funeral
[27]
expenses. Respondent thus filed a petition against the SSS
before the SSC for the restoration to her of her entitlement to
[19]
Elisa and seven of her children subsequently filed monthly pension.
claims for death benefits as Bailons beneficiaries before the
[20]
SSS. In the meantime, respondent informed the SSS that
she was returning, under protest, the amount of P12,000
Atty. Marites C. de la Torre of the Legal Unit of the representing the funeral benefits she received, she alleging
SSS Bicol Cluster, Naga City recommended the cancellation that Norma and her siblings forcibly and coercively prevented
[28]
of payment of death pension benefits to respondent and the her from spending any amount during Bailons wake.
issuance of an order for the refund of the amount paid to her
[29]
from February 1998 to May 1999 representing such After the SSS filed its Answer to respondents
benefits; the denial of the claim of Alice on the ground that petition, and the parties filed their respective Position Papers,
[30]
one Alicia P. Diaz filed an Affidavit dated August 14, 2002 It having been determined that Teresita Jarque was
with the SSS Naga Branch attesting that she is the widow of not the legitimate surviving spouse and primary
Bailon; she had only recently come to know of the petition beneficiary of Clemente Bailon, it behooves her
filed by Bailon to declare her presumptively dead; it is not true to refund the total amount of death benefit she
that she disappeared as Bailon could have easily located her, received from the SSS for the period from February
she having stayed at her parents residence in Barcelona, 1998 until May 1999 pursuant to the principle
Sorsogon after she found out that Bailon was having an of solutio indebiti x x x
extramarital affair; and Bailon used to visit her even after their
separation. Likewise, it appearing that she was not the one
who actually defrayed the cost of the wake and
By Resolution of April 2, 2003, the SSC found that burial of Clemente Bailon, she must return the
the marriage of respondent to Bailon was void and, therefore, amount of P12,000.00 which was earlier given to
[33]
she was just a common-law-wife. Accordingly it disposed as her by the SSS as funeral benefit. (Underscoring
follows, quoted verbatim: supplied)

WHEREFORE, this Commission finds, and so


[34]
holds, that petitioner Teresita Jarque-Bailon is Respondents Motion for Reconsideration having
not the legitimate spouse and primary been denied by Order of June 4, 2003, she filed a petition for
[35]
beneficiary of SSS member Clemente Bailon. review before the Court of Appeals (CA).

Accordingly, the petitioner is hereby ordered to By Decision of June 23, 2004, the CA reversed and
refund to the SSS the amount of P24,000.00 set aside the April 2, 2003 Resolution and June 4,
representing the death benefit she received 2003 Order of the SSC and thus ordered the SSS to pay
therefrom for the period February 1998 until respondent all the pension benefits due her. Held the CA:
May 1999 as well as P12,000.00 representing
the funeral benefit. x x x [T]he paramount concern in this case
transcends the issue of whether or not the
The SSS is hereby ordered to pay Alice (a.k.a. decision of the then CFI, now RTC, declaring
Aliz) Diaz-Bailon the appropriate death benefit Alice Diaz presumptively dead has attained
arising from the demise of SSS member finality but, more importantly, whether or not the
Clemente Bailon in accordance with Section respondents SSS and Commission can validly re-
8(e) and (k) as well as Section 13 of the SS evaluate the findings of the RTC, and on its own,
Law, as amended, and its prevailing rules and declare the latters decision to be bereft of any
regulations and to inform this Commission of its basis. On similar import, can respondents SSS
compliance herewith. and Commission validly declare the first marriage
subsisting and the second marriage null and
[31]
SO ORDERED. (Underscoring supplied) void?

xxxx
In so ruling against respondent, the SSC ratiocinated.
x x x while it is true that a judgment declaring a
After a thorough examination of the evidence at person presumptively dead never attains finality
hand, this Commission comes to the inevitable as the finding that the person is unheard of in
conclusion that the petitioner is not the legitimate seven years is merely a presumption juris tantum,
wife of the deceased member. the second marriage contracted by a person with
an absent spouse endures until annulled. It is
xxxx only the competent court that can nullify the
second marriage pursuant to Article 87 of the
There is x x x ample evidence pointing to the fact Civil Code and upon the reappearance of the
that, contrary to the declaration of the then CFI of missing spouse, which action for annulment may
th
Sorsogon (10 Judicial District), the first wife never be filed. Nowhere does the law contemplates [sic]
disappeared as the deceased member represented the possibility that respondent SSS may validly
in bad faith. This Commission accords credence to declare the second marriage null and void on the
the findings of the SSS contained in its basis alone of its own investigation and declare
[32]
Memorandum dated August 9, 1999, revealing that the decision of the RTC declaring one to be
that Alice (a.k.a. Aliz) Diaz never left Barcelona, presumptively dead is without basis.
Sorsogon, after her separation from Clemente
Bailon x x x. Respondent SSS cannot arrogate upon itself
As the declaration of presumptive death was the authority to review the decision of the
extracted by the deceased member using artifice regular courts under the pretext of determining
and by exerting fraud upon the unsuspecting court the actual and lawful beneficiaries of its
of law, x x x it never had the effect of giving the members. Notwithstanding its opinion as to the
deceased member the right to marry anew. x x x [I]t soundness of the findings of the RTC, it should
is clear that the marriage to the petitioner is void, extend due credence to the decision of the RTC
considering that the first marriage on April 25, 1955 absent of [sic] any judicial pronouncement to the
to Alice Diaz was not previously annulled, contrary. x x x
invalidated or otherwise dissolved during the
lifetime of the parties thereto. x x x as determined x x x [A]ssuming arguendo that respondent SSS
through the investigation conducted by the SSS, actually possesses the authority to declare the
Clemente Bailon was the abandoning spouse, not decision of the RTC to be without basis, the
Alice Diaz Bailon. procedure it followed was offensive to the
principle of fair play and thus its findings are of
xxxx doubtful quality considering that petitioner
Teresita was not given ample opportunity to
It having been established, by substantial present evidence for and her behalf.
evidence, that the petitioner was just a common-
law wife of the deceased member, it necessarily xxxx
follows that she is not entitled as a primary
beneficiary, to the latters death benefit. x x x Respondent SSS is correct in stating that the
filing of an Affidavit of Reappearance with the
xxxx Civil Registry is no longer practical under the
premises. Indeed, there is no more first marriage
[43]
to restore as the marital bond between Alice Diaz Article 83 of the Civil Code provides:
and Clemente Bailon was already terminated
upon the latters death. Neither is there a second Art. 83. Any marriage subsequently contracted by
marriage to terminate because the second any person during the lifetime of the first spouse of
marriage was likewise dissolved by the death of such person with any person other than such first
Clemente Bailon. spouse shall be illegal and void from its
performance, unless:
However, it is not correct to conclude that simply
because the filing of the Affidavit of (1) The first marriage was annulled or dissolved; or
Reappearance with the Civil Registry where
parties to the subsequent marriage reside is (2) The first spouse had been absent for seven
already inutile, the respondent SSS has now the consecutive years at the time of the second
authority to review the decision of the RTC and marriage without the spouse present having news
consequently declare the second marriage null of the absentee being alive, or if the absentee,
[36]
and void. (Emphasis and underscoring though he has been absent for less than seven
supplied) years, is generally considered as dead and believed
to be so by the spouse present at the time of
contracting such subsequent marriage, or if the
The SSC and the SSS separately filed their Motions absentee is presumed dead according to Articles
[37]
for Reconsideration which were both denied for lack of 390 and 391. The marriage so contracted shall
merit. be valid in any of the three cases until declared null
and void by a competent court. (Emphasis and
Hence, the SSS present petition for review on underscoring supplied)
[38]
certiorari anchored on the following grounds:

I Under the foregoing provision of the Civil Code, a


subsequent marriage contracted during the lifetime of the
THE DECISION OF THE HONORABLE first spouse is illegal and void ab initio unless the prior
COURT OF APPEALS IS CONTRARY TO marriage is first annulled or dissolved or contracted under
LAW. any of the three exceptional circumstances. It bears noting
that the marriage under any of these exceptional cases is
II deemed valid until declared null and void by a competent
court. It follows that the onus probandi in these cases rests
[44]
THE HONORABLE COURT OF APPEALS on the party assailing the second marriage.
GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OF In the case at bar, as found by the CFI, Alice had
[39] [45]
JURISDICTION. been absent for 15 consecutive years when Bailon sought
the declaration of her presumptive death, which judicial
declaration was not even a requirement then for purposes of
[46]
The SSS faults the CA for failing to give due remarriage.
consideration to the findings of facts of the SSC on the prior
and subsisting marriage between Bailon and Alice; in Eminent jurist Arturo M. Tolentino (now deceased)
disregarding the authority of the SSC to determine to whom, commented:
between Alice and respondent, the death benefits should be
[40]
awarded pursuant to Section 5 of the Social Security Law; Where a person has entered into two successive
and in declaring that the SSS did not give respondent due marriages, a presumption arises in favor of the validity
process or ample opportunity to present evidence in her of the second marriage, and the burden is on the party
behalf. attacking the validity of the second marriage to prove
that the first marriage had not been dissolved; it is not
The SSS submits that the observations and findings enough to prove the first marriage, for it must also be
relative to the CFI proceedings are of no moment to the shown that it had not ended when the second marriage
present controversy, as the same may be considered only was contracted. The presumption in favor of the
as obiter dicta in view of the SSCs finding of the existence of innocence of the defendant from crime or wrong and of
a prior and subsisting marriage between Bailon and Alice by the legality of his second marriage, will prevail over the
virtue of which Alice has a better right to the death presumption of the continuance of life of the first
[41]
benefits. spouse or of the continuance of the marital relation
[47]
with such first spouse. (Underscoring supplied)
The petition fails.

That the SSC is empowered to settle any dispute Under the Civil Code, a subsequent marriage
[48]
with respect to SSS coverage, benefits and contributions, being voidable, it is terminated by final judgment of
there is no doubt. In so exercising such power, however, it annulment in a case instituted by the absent spouse who
cannot review, much less reverse, decisions rendered by reappears or by either of the spouses in the subsequent
courts of law as it did in the case at bar when it declared that marriage.
the December 10, 1970 CFI Order was obtained through
fraud and subsequently disregarded the same, making its Under the Family Code, no judicial proceeding to
own findings with respect to the validity of Bailon and Alices annul a subsequent marriage is necessary. Thus Article 42
marriage on the one hand and the invalidity of Bailon and thereof provides:
respondents marriage on the other.
Art. 42. The subsequent marriage referred to in the
In interfering with and passing upon the CFI Order, preceding Article shall be automatically terminated
the SSC virtually acted as an appellate court. The law does by the recording of the affidavit of
not give the SSC unfettered discretion to trifle with orders of reappearance of the absent spouse, unless there is
regular courts in the exercise of its authority to determine the a judgment annulling the previous marriage or
beneficiaries of the SSS. declaring it void ab initio.

The two marriages involved herein having been A sworn statement of the fact and circumstances of
solemnized prior to the effectivity on August 3, 1988 of the reappearance shall be recorded in the civil registry of
Family Code, the applicable law to determine their validity is the residence of the parties to the subsequent
the Civil Code which was the law in effect at the time of their marriage at the instance of any interested
[42]
celebration. person, with due notice to the spouses of the
subsequent marriage and without prejudice to the
fact of reappearance being judicially determined in In light of the foregoing discussions, consideration of
case such fact is disputed. (Emphasis and the other issues raised has been rendered unnecessary.
underscoring supplied)
WHEREFORE, the petition is DENIED.

The termination of the subsequent marriage by


affidavit provided by the above-quoted provision of the
Family Code does not preclude the filing of an action in court
CELERINA J. SANTOS, Petitioner, v. RICARDO
to prove the reappearance of the absentee and obtain a T. SANTOS, Respondent.
declaration of dissolution or termination of the subsequent
[49]
marriage. DECISION

LEONEN, J.:
If the absentee reappears, but no step is taken to
terminate the subsequent marriage, either by affidavit or by
court action, such absentees mere reappearance, even if The proper remedy for a judicial declaration of presumptive
made known to the spouses in the subsequent marriage, will death obtained by extrinsic fraud is an action to annul the
[50]
not terminate such marriage. Since the second marriage judgment. An affidavit of reappearance is not the proper
has been contracted because of a presumption that the remedy when the person declared presumptively dead has
former spouse is dead, such presumption continues inspite never been absent.
of the spouses physical reappearance, and by fiction of law,
he or she must still be regarded as legally an absentee until This is a petition for review on certiorari filed by Celerina J.
the subsequent marriage is terminated as provided by Santos, assailing the Court of Appeals' resolutions dated
[51]
law. November 28, 2008 and March 5, 2009. The Court of
Appeals dismissed the petition for the annulment of the trial
If the subsequent marriage is not terminated by court's judgment declaring her presumptively dead.
registration of an affidavit of reappearance or by judicial
declaration but by death of either spouse as in the case at On July 27, 2007, the Regional Trial Court of Tarlac City
bar, Tolentino submits: declared petitioner Celerina J. Santos (Celerina)
presumptively dead after her husband, respondent Ricardo T.
x x x [G]enerally if a subsequent Santos (Ricardo), had filed a petition for declaration of
marriage is dissolved by the death of either absence or presumptive death for the purpose of remarriage
1
spouse, the effects of dissolution of valid on� June 15, 2007. Ricardo remarried on September 17,
2
marriages shall arise. The good or bad 2008. chanrobleslaw
faith of either spouse can no longer be
raised, because, as in annullable In his petition for declaration of absence or presumptive
or voidable marriages, the marriage cannot death, Ricardo alleged that he and Celerina rented an
be questioned except in a direct action for apartment somewhere in San Juan, Metro Manila; after they
[52] 3
annulment. (Underscoring supplied) had gotten married on June 18, 1980. After a year, they
moved to Tarlac City. They were engaged in the buy and sell
[53] 4
Similarly, Lapuz v. Eufemio instructs: business. chanrobleslaw
5
In fact, even if the bigamous Ricardo claimed that their business did not prosper. As a
marriage had not been void ab initio but result, Celerina convinced him to allow her to work as a
6
only voidable under Article 83, paragraph domestic helper in Hong Kong. Ricardo initially refused but
2, of the Civil Code, because the second because of Celerina's insistence, he allowed her to work
7
marriage had been contracted with the first abroad. She allegedly applied in an employment agency in
wife having been an absentee for seven Ermita, Manila, in February 1995. She left Tarlac two months
8
consecutive years, or when she had been after and was never heard from again. chanrobleslaw
generally believed dead, still the action for
annulment became extinguished as soon Ricardo further alleged that he exerted efforts to locate
9
as one of the three persons involved had Celerina. He went to Celerina's parents in Cubao, Quezon
died, as provided in Article 87, paragraph City, but they, too, did not know their daughter's
10
2, of the Code, requiring that the action whereabouts. He also inquired about her from other
for annulment should be brought during relatives and friends, but no one gave him any
11
the lifetime of any one of the parties information. chanrobleslaw
involved. And furthermore, the liquidation
of any conjugal partnership that might have Ricardo claimed that it was almost 12 years from the date of
resulted from such voidable marriage must his Regional Trial Court petition since Celerina left.� He
12
be carried out in the testate or intestate believed that she had passed away. chanrobleslaw
proceedings of the deceased spouse, as
expressly provided in Section 2 of the Celerina claimed that she learned about Ricardo's petition
Revised Rule 73, and not in the annulment only sometime in October 2008 when she could no longer
[54]
proceeding. (Emphasis and avail the remedies of new trial, appeal, petition for relief, or
13
underscoring supplied) other appropriate remedies. chanrobleslaw

On November 17, 2008, Celerina filed a petition for


14
annulment of judgment before the Court of Appeals on the
It bears reiterating that a voidable marriage cannot be grounds of extrinsic fraud and lack of jurisdiction. She argued
assailed collaterally except in a direct that she was deprived her day in court when Ricardo, despite
proceeding. Consequently, such marriages can be assailed his knowledge of her true residence, misrepresented to the
15
only during the lifetime of the parties and not after the death of court that she was a resident of Tarlac City. According to
either, in which case the parties and their offspring will be left Celerina, her true residence was in Neptune Extension,
[55] 16
as if the marriage had been perfectly valid. Upon the death Congressional Avenue, Quezon City. This residence had
of either, the marriage cannot be impeached, and is made been her and Ricardo's conjugal dwelling since 1989 until
[56] 17
good ab initio. Ricardo left in May 2008. As a result of Ricardo's
misrepresentation, she was deprived of any notice of and
In the case at bar, as no step was taken to nullify, in opportunity to oppose the petition declaring her presumptively
18
accordance with law, Bailons and respondents marriage prior dead. chanrobleslaw
to the formers death in 1998, respondent is rightfully the
dependent spouse-beneficiary of Bailon. Celerina claimed that she never resided in Tarlac.� She also
20
never left and worked as a domestic helper abroad. Neither
21
did she go to an employment agency in February 1995. She
also claimed that it was not true that she had been absent for Celerina alleged in her petition for annulment of judgment
12 years. Ricardo was aware that she never left their that there was fraud when Ricardo deliberately made false
22
conjugal dwelling in Quezon City. It was he who left the allegations in the court with respect to her
40
conjugal dwelling in May 2008 to cohabit with another residence. Ricardo also falsely claimed that she was absent
23
woman. Celerina referred to a joint affidavit executed by for 12 years. There was also no publication of the notice of
their children to support her contention that Ricardo made hearing of Ricardo's petition in a newspaper of general
24 41
false allegations in his petition. chanrobleslaw circulation. Celerina claimed that because of these, she
was deprived of notice and opportunity to oppose Ricardo's
42
Celerina also argued that the court did not acquire jurisdiction petition to declare her presumptively dead. chanrobleslaw
over Ricardo's petition because it had never been published
25
in a newspaper. She added that the Office of the Solicitor Celerina alleged that all the facts supporting Ricardo's
General and the Provincial Prosecutor's Office were not petition for declaration of presumptive death were
26 43
furnished copies of Ricardo's petition. chanrobleslaw false. Celerina further claimed that the court did not acquire
jurisdiction because the Office of the Solicitor General and
The Court of Appeals issued the resolution dated November the Provincial Prosecutor's Office were not given copies of
44
28, 2008, dismissing Celerina's petition for annulment of Ricardo's petition. chanrobleslaw
27
judgment for being a wrong mode of remedy. According to
the Court of Appeals, the proper remedy was to file a sworn These are allegations of extrinsic fraud and lack of
statement before the civil registry, declaring her jurisdiction. Celerina alleged in her petition with the Court of
reappearance in accordance with Article 42 of the Family Appeals sufficient ground/s for annulment of judgment.
28
Code. chanrobleslaw
45
Celerina filed her petition for annulment of judgment on
Celerina filed a motion for reconsideration of the Court of November 17, 2008. This was less than two years from the
29
Appeals' resolution dated November 28, 2008. The Court of July 27, 2007 decision declaring her presumptively dead and
Appeals denied the motion for reconsideration in the about a month from her discovery of the decision in October
30
resolution dated March 5, 2009. chanrobleslaw 2008. The petition was, therefore, filed within the four-year
period allowed by law in case of extrinsic fraud, and before
Hence, this petition was filed. the action is barred by laches, which is the period allowed in
46
case of lack of jurisdiction. chanrobleslaw
The issue for resolution is whether the Court of Appeals erred
in dismissing Celerina's petition for annulment of judgment for There was also no other sufficient remedy available to
being a wrong remedy for a fraudulently obtained judgment Celerina at the time of her discovery of the fraud perpetrated
declaring presumptive death. on her.

Celerina argued that filing an affidavit of reappearance under The choice of remedy is important because remedies carry
Article 42 of the Family Code is appropriate only when the with them certain admissions, presumptions, and conditions.
spouse is actually absent and the spouse seeking the
declaration of presumptive death actually has a well-founded The Family Code provides that it is the proof of absence of a
31
belief of the spouse's death. She added that it would be spouse for four consecutive years, coupled with a well-
inappropriate to file an affidavit of reappearance if she did not founded belief by the present spouse that the absent spouse
32
disappear in the first place. She insisted that an action for is already dead, that constitutes a justification for a second
annulment of judgment is proper when the declaration of marriage during the subsistence of another
33 47
presumptive death is obtained fraudulently. chanrobleslaw marriage. chanrobleslaw

Celerina further argued that filing an affidavit of reappearance The Family Code also provides that the second marriage is in
under Article 42 of the Family Code would not be a sufficient danger of being terminated by the presumptively dead
remedy because it would not nullify the legal effects of the spouse when he or she reappears.
34
judgment declaring her presumptive death. chanrobleslaw Thus:chanRoblesvirtualLawlibrary
35
In Ricardo's comment, he argued that a petition for Article 42. The subsequent marriage referred to in the
annulment of judgment is not the proper remedy because it preceding Article shall be automatically terminated by the
cannot be availed when there are other remedies available. recording of the affidavit of reappearance of the absent
Celerina could always file an affidavit of reappearance to spouse, unless there is a judgment annulling the previous
terminate the subsequent marriage. Ricardo iterated the marriage or declaring it void ab initio.
Court of Appeals' ruling that the remedy afforded to Celerina
under Article 42 of the Family Code is the appropriate A sworn statement of the fact and circumstances of
remedy. reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the
The petition is meritorious. instance of any interested person, with due notice to the
spouses of the subsequent marriage and without prejudice to
Annulment of judgment is the remedy when the Regional the fact of reappearance being judicially determined in case
Trial Court's judgment, order, or resolution has become final, such fact is disputed. (Emphasis supplied)
and the "remedies of new trial, appeal, petition for relief (or
other appropriate remedies) are no longer available through In other words, the Family Code provides the presumptively
36
no fault of the petitioner." chanrobleslaw dead spouse with the remedy of terminating the subsequent
marriage by mere reappearance.
The grounds for annulment of judgment are extrinsic fraud
37
and lack of jurisdiction. This court defined extrinsic fraud The filing of an affidavit of reappearance is an admission on
38
in Stilianopulos v. City of Legaspi: chanrobleslaw the part of the first spouse that his or her marriage to the
present spouse was terminated when he or she was declared
For fraud to become a basis for annulment of judgment, it has absent or presumptively dead.
to be extrinsic or actual. It is intrinsic when the fraudulent acts
pertain to an issue involved in the original action or where the Moreover, a close reading of the entire Article 42 reveals that
acts constituting the fraud were or could have been the termination of the subsequent marriage by reappearance
litigated, It is extrinsic or collateral when a litigant commits is subject to several conditions: (1) the non-existence of a
acts outside of the trial which prevents a parly from having a judgment annulling the previous marriage or declaring it
real contest, or from presenting all of his case, such that void ab initio; (2) recording in the civil registry of the
39
there is no fair submission of the controversy. (Emphasis residence of the parties to the subsequent marriage of the
supplied) sworn statement of fact and circumstances of reappearance;
(3) due notice to the spouses of the subsequent marriage of
the fact of reappearance; and (4) the fact of reappearance he contracted the subsequent marriage, such marriage would
must either be undisputed or judicially determined. be considered void for being bigamous under Article 35(4) of
the Family Code. This is because the circumstances lack the
The existence of these conditions means that reappearance element of "well-founded belief under Article 41 of the Family
does not always immediately cause the subsequent Code, which is essential for the exception to the rule against
59
marriage's termination.� Reappearance of the absent or bigamous marriages to apply. chanrobleslaw
presumptively dead spouse will cause the termination of the
subsequent marriage only when all the conditions The provision on reappearance in the Family Code as a
enumerated in the Family Code are present. remedy to effect the termination of the subsequent marriage
does not preclude the spouse who was declared
Hence, the subsequent marriage may still subsist despite the presumptively dead from availing other remedies existing in
absent or presumptively dead spouse's reappearance (1) if law. This court had, in fact, recognized that a subsequent
the first marriage has already been annulled or has been marriage may also be terminated by filing "an action in court
declared a nullity; (2) if the sworn statement of the to prove the reappearance of the absentee and obtain a
reappearance is not recorded in the civil registry of the declaration of dissolution or termination of the subsequent
60
subsequent spouses' residence; (3) if there is no notice to the marriage." chanrobleslaw
subsequent spouses; or (4) if the fact of reappearance is
disputed in the proper courts of law, and no judgment is yet Celerina does not admit to have been absent. She also seeks
rendered confirming, such fact of reappearance. not merely the termination of the subsequent marriage but
also the nullification of its effects. She contends that
When subsequent marriages are contracted after a judicial reappearance is not a sufficient remedy because it will only
declaration of presumptive death, a presumption arises that terminate the subsequent marriage but not nullify the effects
the first spouse is already dead and that the second marriage of the declaration of her presumptive death and the
is legal. This presumption should prevail over the subsequent marriage.
continuance of the marital relations with the first
48
spouse. The second marriage, as with all marriages, is Celerina is correct. Since an undisturbed subsequent
49
presumed valid. The burden of proof to show that the first marriage under Article 42 of the Family Code is valid until
marriage was not properly dissolved rests on the person terminated, the "children of such marriage shall be
50
assailing the validity of the second marriage. chanrobleslaw considered legitimate, and the property relations of the
spouse[s] in such marriage will be the same as in valid
61
This court recognized the conditional nature of reappearance marriages." If it is terminated by mere reappearance, the
as a cause for terminating the subsequent marriage in Social children of the subsequent marriage conceived before the
51 52 62
Security System v. Vda. de Bailon. This court noted that termination shall still be considered legitimate. Moreover, a
mere reappearance will not terminate the subsequent judgment declaring presumptive death is a defense against
63
marriage even if the parties to the subsequent marriage were prosecution for bigamy. chanrobleslaw
notified if there was "no step . . . taken to terminate the
subsequent marriage, either by [filing an] affidavit [of It is true that in most cases, an action to declare the nullity of
53
reappearance] or by court action[.]" "Since the second the subsequent marriage may nullify the effects of the
marriage has been contracted because of a presumption that subsequent marriage, specifically, in relation to the status of
the former spouse is dead, such presumption continues children and the prospect of prosecuting a respondent for
inspite of the spouse's physical reappearance, and by fiction bigamy.
of law, he or she must still be regarded as legally an
absentee until the subsequent marriage is terminated as However, "a Petition for Declaration of Absolute Nullity of
54
provided by law." chanrobleslaw Void Marriages may be filed solely by the husband or
64
wife." � This means that even if Celerina is a real party in
The choice of the proper remedy is also important for interest who stands to be benefited or injured by the outcome
65
purposes of determining the status of the second marriage of an action to nullify the second marriage, this remedy is
and the liabilities of the spouse who, in bad faith, claimed that not available to her.
the other spouse was absent.
Therefore, for the purpose of not only terminating the
A second marriage is bigamous while the first subsists.� subsequent marriage but also of nullifying the effects of the
However, a bigamous subsequent marriage may be declaration of presumptive death and the subsequent
considered valid when the following are marriage, mere filing of an affidavit of reappearance would
present:chanRoblesvirtualLawlibrary not suffice. Celerina's choice to file an action for annulment of
judgment will, therefore, lie.
1) The prior spouse had been absent for four consecutive
years; WHEREFORE, the case is REMANDED to the Court of
2) The spouse present has a well-founded belief that the Appeals for determination of the existence of extrinsic fraud,
absent spouse was already dead; grounds for nullity/annulment of the first marriage, and the
3) There must be a summary proceeding for the declaration merits of the petition.
of presumptive death of the absent spouse; and
4) There is a court declaration of presumptive death of the SO ORDERED.cralawlawlibrary
55
absent spouse.

A subsequent marriage contracted in bad faith, even if it was


contracted after a court declaration of presumptive death,
56
lacks the requirement of a well-founded belief that the
spouse is already dead. The first marriage will not be
considered as. validly terminated. Marriages contracted prior
to the valid termination of a subsisting marriage are generally
57
considered bigamous and void. Only a subsequent
marriage contracted in good faith is protected by law.

Therefore, the party who contracted the subsequent marriage


in bad faith is also not immune from an action to declare his
subsequent marriage void for being bigamous. The
prohibition against marriage during the subsistence of
58
another marriage still applies. chanrobleslaw

If, as Celerina contends, Ricardo was in bad faith when he


filed his petition to declare her presumptively dead and when
G.R. No. 210929 July 29, 2015 the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs. For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must
EDNA ORCELINO-VILLANUEVA, Respondent. institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee, without
DISSENTING OPINION prejudice to the effect of reappearance of the absent spouse.

LEONEN, J.: Article 41’s requirement of a "well-grounded belief" calls for


5
an inquiry into a spouse’s state of mind. Otherwise abstract,
Edna Orcelino-Villanueva (Edna) was a domestic helper one’s state of mind can only be ascertained through overt
based in Singapore. In 1993, she came home immediately acts. Article 41 requires this belief to be "well-grounded." It
after she heard news from her children that her husband, therefore requires nothing more than for a spouse to have a
6
Romeo L. Villanueva (Romeo), left their conjugal dwelling. "reasonable basis for holding to such belief." Article 41 relies
7
She came home, leaving her work, for the purpose of looking on a basic and plain test: rationality.
for her husband and taking care of her children. She had
limited resources for her search. What is rational in each case depends on context. Rationality
is not determined by the blanket imposition of pre-conceived
For 15 or 16 years, she endured the absence of her husband. standards. Rather, it is better determined by an appreciation
8
Within those long years, whether in good times or bad, she of a person’s unique circumstances.
never heard from him. He did not discharge any of his duties
as husband. Moreover, all that Article 41 calls to sustain is a presumption.
By definition, there is no need for absolute certainty. A
In ruling against her and concluding that she did not search presumption is, by nature, favorable to a party and dispenses
hard enough for Romeo, the majority fails to appreciate with the burden of proving. Consequently, neither is there a
several crucial facts: need for conduct that establishes such a high degree of
cognizance that what is established is proof, and no longer a
presumption:
First, Edna turned away from her livelihood, her modest
means of subsistence, just to search for Romeo.
In declaring a person presumptively dead, a court is called
upon to sustain a presumption, it is not called upon to
Second, Edna did not only embark on a token search. She conclude on verity or to establish actuality. In so doing, a
did not limit herself to her parents-in-law and to common court infers despite an acknowledged uncertainty. Thus, to
friends in Iligan City, the . place where she and Romeo were insist on such demanding and extracting evidence to "show
married. Edna went all the way to Romeo's birthplace, which enough proof of a well-founded belief", is to insist on an
was Escalante, Negros Oriental. There, she inquired from inordinate and intemperate standard.
9

Romeo's relatives as to his whereabouts.


It is improper for the majority to insist upon the same "strict
Third, 15 or 16 years had passed since Edna was told that 10
standard approach" that was relied on in Cantor and
Romeo had gone missing when she filed her Petition to conclude that Edna’s efforts "were not diligent and serious
declare Romeo presumptively dead. If Edna merely intended 11
enough." The majority fails to appreciate several crucial
to use a petition for declaration of presumptive death as a facts in this case that define the limits of her situation.
convenient means for circumventing laws that protect the
institution of marriage, it is astounding that she would await
the inconvenience of 15 or 16 years. Edna’s lack of resources appears in the records. She only
had the ability to present herself as witness.

Edna established a well-founded belief that her husband,


Romeo, is already dead. Concededly, Edna could have engaged in other efforts—
asking for the help of police officers, filing a formal missing-
1 person report, announcing Romeo’s absence in radio or
I vote to sustain the assailed October 18, 2013 Decision and television programs—as would show how painstakingly she
2
January 8, 2014 Resolution of the Court of Appeals in CA- endeavored to search for Romeo. Insisting on Edna to have
G.R. SP No. 03768-MIN, affirming the October 8, 2009 also made these efforts, however, is to insist that she act in
3
Judgment of the Regional Trial Court, Branch 10, an ideal manner. It takes her away from her own reality and
Malaybalay City, Bukidnon, declaring Romeo presumptively requires her to fulfill pre-conceived notions of what satisfies
dead pursuant to Article 41 of the Family Code. notice. It fails to appreciate the merit of the lengths she
actually went through to search for Romeo.
I reiterate the position I articulated in my dissent to Republic
4
of the Philippines v. Cantor. I maintain that a strict standard Unless Edna had the ability to gain access to radio or
should not be used in evaluating the efforts made by a television programs with nationwide coverage or ensure that
spouse to ascertain the status and whereabouts of an absent her notices were posted in all precincts, then requiring this
spouse. The marital obligations provided for by the Family type of search would have been futile and economically
Code require the continuing presence of each spouse. A wasteful. If we are to lend truth to the concept of social
spouse is well to suppose that this shall be resolutely fulfilled justice, we have to make judgments based on her context. To
by the other spouse. Failure to do so for the period reiterate, she is one of the millions who had to go abroad to
established by law gives rise to the presumption that the earn a more prosperous life for herself and her children. She
absent spouse is dead, thereby enabling the spouse present had to cut short her employment to come home and make an
to remarry. honest search for her husband. To require her to squander
more time and money to reach media and the police would
Article 41 of the Family Code provides: have been economically expensive for her. The law should
be interpreted in the context of reality—and ours is different
Art. 41. A marriage contracted by any person during from Edna’s.
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the Edna was an abandoned wife whose husband was missing
prior spouse had been absent for four consecutive years and for 15 or 16 years. Her search for Romeo began more than
the spouse present has a well-founded belief that the absent two decades ago in a province in Mindanao, far removed
spouse was already dead. In case of disappearance where from this nation’s capital. She was an overseas Filipino
there is danger of death under the circumstances set forth in worker, a domestic helper, who was compelled to return to
the Philippines to tend to a missing husband. Twenty-two reappear: Art. 42. The subsequent marriage referred to in the
years ago, when she embarked on her search, she could not preceding Article shall be automatically terminated by the
have been aided by the convenience of ready access to recording of the affidavit of reappearance of the absent
communication networks. To go to her husband’s birthplace spouse, unless there is a judgment annulling the previous
and inquire from his relatives, she could not have merely marriage or declaring it void ab nitio.
boarded an hour-long flight; she must have endured hours,
even days at sea. It is in light of these human realities that A sworn statement of the fact and circumstances of
Edna’s efforts must be appreciated. reappearance shall be recorded in the civil registry of the
residence of the parties to the subsequent marriage at the
This court must realize that insisting upon an ideal will never instance of any interested person, with due notice to the
yield satisfactory results. A stringent evaluation of a party’s spouses of the subsequent marriage and without prejudice to
efforts made out of context will always reveal means through the fact of reappearance being judicially determined in case
14
which a spouse could have ‘done more’ or walked the such fact is disputed. Moreover, in Santos v. Santos, we
proverbial extra mile to ascertain his or her spouse’s recognized that in cases where a declaration of presumptive
whereabouts. A reason could always be conceived for death was fraudulently obtained, the subsequent marriage
concluding that a spouse did not try ‘hard enough.’ shall not only be terminated, but all other effects of the
declaration nullified by a successful petition for annulment of
So, too, insisting on Edna’s perceived shortcomings unjustly judgment:
puts the blame on her and undermines the shortcoming that
Romeo himself committed. All marital obligations recognized The proper remedy for a judicial declaration of presumptive
in the Family Code are predicated upon each spouse’s death obtained by extrinsic fraud is an action to annul the
presence. The primordial marital obligation is "to live judgment. An affidavit of reappearance is not the proper
together, observe mutual love, respect and fidelity, and remedy when the person declared presumptively dead has
12
render mutual help and support." As I explained in my never been absent.
dissent in Cantor:
....
The opinions of a recognized authority in civil law, Arturo M.
Tolentino, are particularly enlightening: Therefore, for the purpose of not only terminating the
subsequent marriage but also of nullifying the effects of the
Meaning of "Absent" Spouse.– The provisions of this article declaration of presumptive death and the subsequent
are of American origin, and must be construed in the light of marriage, mere filing of an affidavit of reappearance would
15
American jurisprudence. An identical provision (except for the not suffice.
period) exists in the California civil code (section 61);
California jurisprudence should, therefore, prove enlightening. The majority is gripped with the apprehension that a petition
It has been held in that jurisdiction that, as respects the for declaration of presumptive death may be availed of as a
validity of a husband’s subsequent marriage, a presumption dangerous expedient. Nothing, in this case, sustains fear. A
as to the death of his first wife cannot be predicated upon an misplaced anxiety is all that there is. As things stand, Edna
absence resulting from his leaving or deserting her, as it is has shown facts that warrant a declaration that Romeo is
his duty to keep her advised as to his whereabouts. The presumptively dead. Proceeding from these merits, this
spouse who has been left or deserted is the one who is Petition must be denied.
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 ACCORDINGLY, I vote to DENY the Petition. The Decision of
the latter, the former may validly remarry. the Court of Appeals in CA-G.R. SP No. 03768-MIN, affirming
the October 8, 2009 Judgment of the Regional Trial Court,
Branch 10, Malaybalay City, Bukidnon, declaring Romeo L.
Precisely, it is a deserting spouse’s failure to comply with Villanueva presumptively dead pursuant to Article 41 of the
what is reasonably expected of him/her and to fulfil the Family Code, must be affirmed.
responsibilities that are all but normal to a spouse which
makes reasonable (i.e., well-grounded) the belief that should
he/she fail to manifest his/her presence within a statutorily MARVIC M.V.F. LEONEN
determined reasonable period, he/she must have been Associate Justice
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" such that it is not the
business of the law to assume any other circumstance than
13
that a spouse is deceased in case he/she becomes absent.

It is Romeo who has been absent. In so doing, he is rightly


considered to be no longer in a position to perform his marital
obligations to Edna. Having been absent for the statutorily
prescribed period despite his legal obligations as a married
spouse, Romeo should be rightly considered presumptively
dead.

The majority burdened itself with ensuring that petitions for


declaration of presumptive death are not used as procedural
shortcuts that undermine the institution of marriage. While
this is a valid concern, the majority goes to unnecessary
lengths to discharge this burden. Article 41 of the Family
Code concedes that there is a degree of risk in presuming a
spouse to be dead, as the absent spouse may, in fact, be
alive and well. Thus, Article 41 provides that declarations of
presumptive death are "without prejudice to the
reappearance of the absent spouse." The state is thus not
bereft of remedies.

Consistent with this, Article 42 of the Family Code provides


for the automatic termination of the subsequent marriage
entered into by the present spouse should the absent spouse
G.R. No. 199194 Proceedings before the Court of Appeals

REPUBLIC OF THE PHILIPPINES, Petitioner, On April 19, 2011, the Republic, through the Office of the
vs. Solicitor General (OSG), elevated the judgment of the RTC to
28
the CA via a Petition for Certiorari under Rule 65 of the
JOSE B. SAREÑOGON, JR., Respondent. Revised Rules of Court.

DECISION 29
In its Decision of October 24, 2011, the CA held that the
Republic used the wrong recourse by instituting a petition
DEL CASTILLO, J.: for certiorari under Rule 65 of the Revised Rules of Court.
The CA perceived no error at all in the RTC’s judgment
A petition for certiorari pursuant to Rule 65 of the Rules of granting Jose’s Petition for the declaration of the presumptive
Court is the proper remedy to challenge a trial court's death of his wife, Netchie. The CA thus held in effect that the
declaration of presumptive death under Article 41 ofThe Republic’s appeal sought to correct or review the RTC’s
1
Family Code of the Philippines (Family Code).
2 alleged misappreciation of evidence which could not translate
into excess or lack of jurisdiction amounting to grave abuse of
30
3 discretion. The CA noted that the RTC properly caused the
This Petition for Review on Certiorari assails the October 24, publication of the Order setting the case for initial
4
2011 Decision of the Court of Appeals (CA) in CA-GR. SP 31
hearing. The CA essentially ruled that, "[a] writ
No. 04158-MIN dismissing the Petition for Certiorari filed by of certiorari may not be used to correct a lower court’s
petitioner Republic of the Philippines (Republic). evaluation of the evidence and factual findings. In other
words, it is not a remedy for mere errors of judgment, which
32
Factual Antecedents are correctible by an appeal." The CA then disposed of the
case in this wise:
On November 4, 2008, respondent Jose B. Sareñogon, Jr.
5
(Jose) filed a Petition before the Regional Trial Court (RTC) WHEREFORE, the petition for certiorari is dismissed.
6
of Ozamiz City-Branch 15 for the declaration of presumptive
7 8
death of his wife, Netchie S. Sareñogon (Netchie). SO ORDERED.
33

In an Amended Order dated Februrary 11, 2009, the RTC set Issues
the Petition for initial hearing on April 16, 2009. It likewise
directed the publication of said Order in a newspaper of 34
general circulation in the cities of Tangub, Ozamiz and The Republic filed the instant Petition raising the following
Oroquieta, all in the province of Misamis Occidental. Nobody issues:
9 10
opposed the Petition. Trial then followed.
THE HONORABLE COURT OF APPEALS ERRED ON A
Jose testified that he first met Netchie in Clarin, Misamis QUESTION OF LAW IN ITS ASSAILED DECISION
11
Occidental in 1991. They later became sweethearts and on BECAUSE:
August 10, 1996, they got married in civil rites at the Manila
12
City Hall. However, they lived together as husband and wife I. THE HONORABLE COURT OF APPEALS GRAVELY
for a month only because he left to work as a seaman while ERRED ON A QUESTION OF LAW IN DISMISSING THE
13
Netchie went to Hongkong as a domestic helper. For three REPUBLIC’S PETITION FOR REVIEW ON CERTIORARI
months, he did not receive any communication from UNDER RULE 65, ON THE GROUND THAT THE PROPER
14
Netchie. He likewise had no idea about her REMEDY SHOULD HAVE BEEN TO APPEAL THE RTC
15
whereabouts. While still abroad, he tried to contact DECISION, BECAUSE IMMEDIATELY FINAL AND
Netchie’s parents, but failed, as the latter had allegedly left EXECUTORY JUDGMENTS OR DECISIONS ARE NOT
16
Clarin, Misamis Occidental. He returned home after his APPEALABLE UNDER THE EXPRESS PROVISION OF
17
contract expired. He then inquired from Netchie’s relatives LAW.
and friends about her whereabouts, but they also did not
18
know where she was. Because of these, he had to presume II. THE ALLEGED EFFORTS OF RESPONDENT IN
19
that his wife Netchie was already dead. He filed the Petition LOCATING HIS MISSING WIFE DO NOT SUFFICIENTLY
before the RTC so he could contract another marriage SUPPORT A "WELLFOUNDED BELIEF" THAT
20
pursuant to Article 41 of the Family Code. RESPONDENT’S ABSENT WIFE X X X IS PROBABLY
35
DEAD.
Jose’s testimony was corroborated by his older brother Joel
21
Sareñogon, and by Netchie’s aunt, Consuelo Sande. These Petitioner’s Arguments
two witnesses testified that Jose and Netchie lived together
as husband and wife only for one month prior to their leaving
22
the Philippines for separate destinations abroad. These two The Republic insists that a petition for certiorari under Rule
added that they had no information regarding Netchie’s 65 of the Revised Rules of Court is the proper remedy to
location.
23 challenge an RTC’s immediately final and executory Decision
36
on a presumptive death.
Ruling of the Regional Trial Court
The Republic claims that based on jurisprudence, Jose’s
24 alleged efforts in locating Netchie did not engender or
In its Decision dated January 31, 2011 in Spec. Proc. No. generate a well-founded belief that the latter is probably
045-08, the RTC held that Jose had established by 37
dead. It maintains that even as Jose avowedly averred that
preponderance of evidence that he is entitled to the relief he exerted efforts to locate Netchie, Jose inexplicably failed
25
prayed for under Article 41 of the Family Code. The RTC to enlist the assistance of the relevant government agencies
found that Netchie had disappeared for more than four years, like the Philippine National Police, the National Bureau of
reason enough for Jose to conclude that his wife was indeed Investigation, the Department of Foreign Affairs, the Bureau
26
already dead. The dispositive portion of the Decision reads: of Immigration, the Philippine Overseas Employment
Administration, or the Overseas Workers Welfare
38
VIEWED IN THE LIGHT OF THE FOREGOING, judgment is Administration. It likewise points out that Jose did not
hereby rendered declaring respondent presumptively dead present any disinterested person to corroborate his
for purposes of remarriage of petitioner. allegations that the latter was indeed missing and could not
39
be found. It also contends that Jose did not advert to
SO ORDERED.
27 circumstances, events, occasions, or situations that would
prove that he did in fact make a comprehensive search for
40
Netchie. The Republic makes the plea that courts should ART. 253. The foregoing rules in Chapters 2 and 3 hereof
ever be vigilant and wary about the propensity of some erring shall likewise govern summary proceedings filed under
spouses in resorting to Article 41 of the Family Code for the Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are
41
purpose of terminating their marriage. applicable. (Emphasis supplied.)

Finally, the Republic submits that Jose did not categorically In plain text, Article 247 in Chapter 2 of the same title reads:
assert that he wanted to have Netchie declared
presumptively dead because he intends to get married again, ART. 247. The judgment of the court shall be immediately
42
an essential premise of Article 41 of the Family Code. final and executory.

Respondent’s Arguments By express provision of law, the judgment of the court in a


summary proceeding shall be immediately final and
Jose counters that the CA properly dismissed the Republic’s executory. As a matter of course, it follows that no appeal can
Petition because the latter’s petition is erected upon the be had of the trial court’s judgment in a summary proceeding
ground that the CA did not correctly weigh or calibrate the for the declaration of presumptive death of an absent spouse
evidence on record, or assigned to the evidence its due under Article 41 of the Family Code. It goes without saying,
worth, import or significance; and that such a ground does however, that an aggrieved party may file a petition
not avail in a petition for certiorari under Rule 65 of the for certiorari to question abuse of discretion amounting to lack
43
Revised Rules of Court. Jose also contends that the of jurisdiction. Such petition should be filed in the Court of
Republic should have instead filed a motion for Appeals in accordance with the Doctrine of Hierarchy of
44
reconsideration of the RTC’s Decision of January 31, 2011, Courts. To be sure, even if the Court’s original jurisdiction to
reasoning out that a motion for reconsideration is a plain, issue a writ of certiorari is concurrent with the RTCs and the
speedy and adequate remedy in law. Jose furthermore Court of Appeals in certain cases, such concurrence does not
submits that the RTC did not act arbitrarily or capriciously in sanction an unrestricted freedom of choice of court forum. x x
52
granting his petition because it even dutifully complied with x (Citation omitted; Underscoring supplied)
45
the publication requirement. He moreover argues that to
sustain the present petition would allow the executive branch "In sum, under Article 41 of the Family Code, the losing party
46
to unduly make inroads into judicial territory. Finally, he in a summary proceeding for the declaration of presumptive
insists that the trial court’s factual findings are entitled to death may file a petition for certiorari with the CA on the
great weight and respect as these were arrived after due ground that, in rendering judgment thereon, the trial court
47
deliberation. committed grave abuse of discretion amounting to lack of
jurisdiction. From the Decision of the CA, the aggrieved party
This Court’s Ruling may elevate the matter to this Court via a petition for review
53
on certiorari under Rule 45 of the Rules of Court."
This Court finds the Republic’s petition meritorious.
54
In fact, in Republic v. Narceda, we held that the OSG
A petition for certiorari under Rule 65 availed of the wrong remedy when it filed a notice of appeal
of the Rules of Court is the proper under Rule 42 with the CA to question the RTC’s Decision
55
remedy to question the RTC’s Decision declaring the presumptive death of Marina B. Narceda.
in a summary proceeding for the
56
declaration of presumptive death Above all, this Court’s ruling in Republic v. Cantor made it
crystal clear that the OSG properly availed of a petition
In the 2005 case of Republic v. Bermudez-Lorino, we held
48 for certiorari under Rule 65 to challenge the RTC’s Order
that the RTC’s Decision on a Petition for declaration of therein declaring Jerry Cantor as presumptively
presumptive death pursuant to Article 41 of the Family Code dead.1âwphi1
is immediately final and executory. Thus, the CA has no
jurisdiction to entertain a notice of appeal pertaining to such Based on the foregoing, it is clear that the Republic correctly
49
judgment. Concurring in the result, Justice (later Chief availed of certiorari under Rule 65 of the Revised Rules of
Justice) Artemio Panganiban further therein pointed out that Court in assailing before the CA the aforesaid RTC’s
the correct remedy to challenge the RTC Decision was to Decision.
institute a petition for certiorari under Rule 65, and not a
50
petition for review under Rule 45. The "well-founded belief" requisite
under Article 41 of the Family Code is
We expounded on this appellate procedure in Republic v. complied with only upon a showing that
51
Tango: sincere honest-to-goodness efforts had
indeed been made to ascertain whether
This case presents an opportunity for us to settle the rule on the absent spouse is still alive or is
appeal of judgments rendered in summary proceedings under already dead
the Family Code and accordingly, refine our previous
decisions thereon. We now proceed to determine whether the RTC properly
granted Jose’s Petition.
Article 238 of the Family Code, under Title XI: SUMMARY
JUDICIAL PROCEEDINGS IN THE FAMILY LAW, Article 41 of the Family Code pertinently provides that:
establishes the rules that govern summary court proceedings
in the Family Code: Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void,
ART. 238. Until modified by the Supreme Court, the unless before the celebration of the subsequent marriage, the
procedural rules in this Title shall apply in all cases provided prior spouse had been absent for four consecutive years and
for in this Code requiring summary court proceedings. Such the spouse present had a well-founded belief that the absent
cases shall be decided in an expeditious manner without spouse was already dead. In case of disappearance where
regard to technical rules. there is danger of death under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence of
In turn, Article 253 of the Family Code specifies the cases only two years shall be sufficient.
covered by the rules in chapters two and three of the same
title. It states: For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee, without Jose’s older brother, and by Netchie’s aunt, both of whom
prejudice to the effect of reappearance of the absent spouse. testified that he (Jose) and Netchie lived together as husband
(83a) and wife only for one month and that after this, there had
been no information as to Netchie’s whereabouts.
57
In Republic v. Cantor, we further held that:
60
In the above-cited case of Republic v. Cantor, this Court
Before a judicial declaration of presumptive death can be held that the present spouse (Maria Fe Espinosa Cantor)
obtained, it must be shown that the prior spouse had been merely conducted a "passive search" because she simply
absent for four consecutive years and the present spouse made unsubstantiated inquiries from her in-laws, from
had a well-founded belief that the prior spouse was already neighbors and friends. For that reason, this Court stressed
dead. Under Article 41 of the Family Code, there that the degree of diligence and reasonable search required
are four essential requisites for the declaration of by law is not met (1) when there is failure to present the
presumptive death: persons from whom the present spouse allegedly made
inquiries especially the absent spouse’s relatives, neighbors,
and friends, (2) when there is failure to report the missing
1. That the absent spouse has been missing for four spouse’s purported disappearance or death to the police or
consecutive years, or two consecutive years if the mass media, and (3) when the present spouse’s evidence
disappearance occurred where there is danger of death might or would only show that the absent spouse chose not
under the circumstances laid down in Article 391 of the Civil to communicate, but not necessarily that the latter was
Code; 61
indeed dead. The rationale for this palpably stringent or
rigorous requirement has been marked out thus:
2. That the present spouse wishes to remarry;
x x x [T]he Court, fully aware of the possible collusion of
3. That the present spouse has a well-founded belief that the spouses in nullifying their marriage, has consistently applied
absentee is dead; and, the "strict standard" approach. This is to ensure that a petition
for declaration of presumptive death under Article 41 of the
4. That the present spouse files a summary proceeding for Family Code is not used as a tool to conveniently circumvent
the declaration of presumptive death of the absentee.
58 the laws. Courts should never allow procedural shortcuts and
should ensure that the stricter standard required by the
Family Code is met. x x x
(Underscoring supplied)
The application of this stricter standard becomes even more
With respect to the third element (which seems to be the imperative if we consider the State’s policy to protect and
element that in this case invites extended discussion), the strengthen the institution of marriage. Since marriage serves
holding is that the – as the family’s foundation and since it is the state’s policy to
protect and strengthen the family as a basic social institution,
mere absence of the spouse (even for such period required marriage should not be permitted to be dissolved at the whim
by the law), or lack of news that such absentee is still alive, of the parties. x x x
failure to communicate [by the absentee spouse or invocation
of the] general presumption on absence under the Civil Code x x x [I]t has not escaped this Court’s attention that the strict
[would] not suffice. This conclusion proceeds from the standard required in petitions for declaration of presumptive
premise that Article 41 of the Family Code places upon the death has not been fully observed by the lower courts. We
present spouse the burden of proving the additional and more need only to cite the instances when this Court, on review,
stringent requirement of "well-founded belief" which can only has consistently ruled on the sanctity of marriage and
be discharged upon a due showing of proper and honest-to- reiterated that anything less than the use of the strict
goodness inquiries and efforts to ascertain not only the standard necessitates a denial. To rectify this situation, lower
absent spouse’s whereabouts but, more importantly, that the courts are now expressly put on notice of the strict standard
absent spouse is [either] still alive or is already dead. this Court requires in cases under Article 41 of the Family
62
Code." (Citations omitted)
xxxx
Given the Court’s imposition of "strict standard" in a petition
The law did not define what is meant by "well-founded for a declaration of presumptive death under Article 41 of the
belief." It depends upon the circumstances of each particular Family Code, it must follow that there was no basis at all for
case. Its determination, so to speak, remains on a case-to- the RTC’s finding that Jose’s Petition complied with the
case basis. To be able to comply with this requirement, the requisites of Article 41 of the Family Code, in reference to the
present spouse must prove that his/her belief was the result "well-founded belief" standard. If anything, Jose’s pathetically
of diligent and reasonable efforts and inquiries to locate the anemic efforts to locate the missing Netchie are notches
absent spouse and that based on these efforts and inquiries, below the required degree of stringent diligence prescribed
he/she believes that under the circumstances, the absent by jurisprudence. For, aside from his bare claims that he had
spouse is already dead. It requires exertion of active effort inquired from alleged friends and relatives as to Netchie’s
59
(not a mere passive one). (Emphasis omitted; underscoring whereabouts, Jose did not call to the witness stand specific
supplied) individuals or persons whom he allegedly saw or met in the
course of his search or quest for the allegedly missing
Netchie. Neither did he prove that he sought the assistance
In the case at bar, the RTC ruled that Jose has "well-founded
of the pertinent government agencies as well as the media.
belief" that Netchie was already dead upon the following
Nor did he show that he undertook a thorough, determined
grounds:
and unflagging search for Netchie, say for at least two years
(and what those years were), and naming the particular
(1) Jose allegedly tried to contact Netchie’s parents while he places, provinces, cities, barangays or municipalities that he
was still out of the country, but did not reach them as they visited, or went to, and identifying the specific persons he
had allegedly left Clarin, Misamis Occidental; interviewed or talked to in the course of his search.

(2) Jose believed/presumed that Netchie was already dead WHEREFORE, the Petition is GRANTED. The Decision
because when he returned home, he was not able to obtain dated October 24, 2011 of the Court of Appeals in CA-G.R.
any information that Netchie was still alive from Netchie’s SP No. 04158-MIN is REVERSED AND SET ASIDE. The
relatives and friends; respondent’s Petition in said Spec. Proc. No. 045-08 is
accordingly DISMISSED.
(3) Jose’s testimony to the effect that Netchie is no longer
alive, hence must be presumed dead, was corroborated by SO ORDERED.
REPUBLIC OF THE PHILIPPINES, Petitioner, However, because neither Nilda nor his own family has heard
v. NILDA B. TAMPUS, Respondent. from him for several years, it can be reasonably concluded
16
that Dante is already dead.

DECISION The OSG's motion for reconsideration was denied in a


Resolution dated September 2, 2014; hence, this petition.
PERLAS-BERNABE, J.:
The Issue Before the Court
1
Assailed in this petition for review on certiorari are the
2 3
Decision dated June 17, 2013 and the Resolution dated
September 2, 2014 rendered by the Court of Appeals (CA) in The sole issue for the Court's resolution is whether or not the
4
CA-G.R. SP No. 04588, which affirmed the Decision dated CA erred in upholding the RTC Decision declaring Dante as
July 29, 2009 of the Regional Trial Court of Lapu-Lapu City, presumptively dead.
Branch 54 (RTC) declaring respondent's spouse, Dante L.
Del Mundo, as presumptively dead. The Court's Ruling

The Facts
The petition has merit.

Respondent Nilda B. Tampus (Nilda) was married to Dante L. Before a judicial declaration of presumptive death can be
Del Mundo (Dante) on November 29, 1975 in Cordova, Cebu. obtained, it must be shown that the prior spouse had been
The marriage ceremony was solemnized by Municipal Judge absent for four consecutive years and the present spouse
5
Julian B. Pogoy of Cordova, Cebu. Three days thereafter, or had a well-founded belief that the prior spouse was already
19
on December 2, 1975, Dante, a member of the Armed Forces dead. Under Article 41 of the Family Code of the Philippines
of the Philippines (AFP), left respondent, and went to Jolo, (Family Code), there are four (4) essential requisites for the
Sulu where he was assigned. The couple had no children.
6 declaration of presumptive death: (1) that the absent spouse
has been missing for four (4) consecutive years, or two (2)
Since then, Nilda heard no news from Dante,. She tried consecutive years if the disappearance occurred where there
7
everything to locate him, but her efforts proved futile. Thus, is danger of death under the circumstances laid down in
on April 14, 2009, she filed before the RTC a petition to
8 Article 391 of the Civil Code; (2) that the present spouse
declare Dante as presumptively dead for the purpose of wishes to remarry; (3) that the present spouse has a well-
remarriage, alleging that after the lapse of thirty-three (33) founded belief that the absentee is dead; and (4) that the
years without any kind of communication from him, she firmly present spouse files a summary proceeding for the
20
believes that he is already dead.
9 declaration of presumptive death of the absentee.

Due to the absence of any oppositor, Nilda was allowed to The burden of proof rests on the present spouse to show that
present her evidence ex parte. She testified on the all the foregoing requisites under Article 41 of the Family
allegations in her petition, affirming that she exerted efforts to Code exist. Since it is the present spouse who, for purposes
find Dante by inquiring from his parents, relatives, and of declaration of presumptive death, substantially asserts the
neighbors, who, unfortunately, were also not aware of his affirmative of the issue, it stands to reason that the burden of
whereabouts. She averred that she intends to remarry and proof lies with him/her. He who alleges a fact has the burden
21
move on with her life.
10 of proving it and mere allegation is not evidence.

The "well-founded belief in the absentee's death requires the


The RTC Ruling
present spouse to prove that his/her belief was the result of
diligent and reasonable efforts to locate the absent spouse
11 and that based on these efforts and inquiries, he/she believes
In a Decision dated July 29, 2009, the RTC granted Nilda's
that under the circumstances, the absent spouse is already
petition and declared Dante as presumptively dead for all
dead. It necessitates exertion of active effort, not a passive
legal purposes, without prejudice to the effect of his
one. As such, the mere absence of the spouse for such
reappearance. It found that Dante left the conjugal dwelling
periods prescribed under the law, lack of any news that such
sometime in 1975 and from then on, Nilda never heard from
absentee spouse is still alive, failure to communicate, or
him again despite diligent efforts to locate him. In this light,
general presumption of absence under the Civil Code would
she believes that he had passed away especially since his 22
not suffice. The premise is that Article 41 of the Family
last assignment was a combat mission. Moreover, the RTC
Code places upon the present spouse the burden of
found that the absence of thirty-three (33) years was
12 complying with the stringent requirement of "well-founded
sufficient to give rise to the presumption of death.
belief which can only be discharged upon a showing of
proper and honest-to-goodness inquiries and efforts to
Dissatisfied, the Office of the Solicitor General (OSG), on
ascertain not only the absent spouse's whereabouts, but
behalf of petitioner Republic of the Philippines (Republic),
13 more importantly, whether the latter is still alive or is already
filed a petition for certiorari before the CA assailing the RTC 23
dead.
Decision.
In this case, Nilda testified that after Dante's disappearance,
The CA Ruling she tried to locate him by making inquiries with his parents,
relatives, and neighbors as to his whereabouts, but
14 unfortunately, they also did not know where to find him. Other
In a Decision dated June 17, 2013, the CA denied the than making said inquiries, however, Nilda made no further
OSG's petition and affirmed the RTC Decision declaring efforts to find her husband. She could have called or
Dante as presumptively dead. The CA gave credence to the proceeded to the AFP headquarters to request information
RTC's findings that Nilda had exerted efforts to find her about her husband, but failed to do so. She did not even seek
husband by inquiring from his parents, relatives, and the help of the authorities or the AFP itself in finding him.
neighbors, who likewise had no knowledge of his Considering her own pronouncement that Dante was sent by
whereabouts. Further, the lapse of thirty-three (33) years, the AFP on a combat mission to Jolo, Sulu at the time of his
coupled with the fact that Dante had been sent on a combat disappearance, she could have inquired from the AFP on the
mission to Jolo, Sulu, gave rise to Nilda's well-founded belief status of the said mission, or from the members of the AFP
15
that her husband is already dead. who were assigned thereto. To the Court's mind, therefore,
Nilda failed to actively look for her missing husband, and her
Moreover, the CA opined that if Dante were still alive after purported earnest efforts to find him by asking Dante's
many years, it would have been easy for him to communicate parents, relatives, and friends did not satisfy the strict
with Nilda, taking into consideration the fact that Dante was standard and degree of diligence required to create a "well-
only 25 years old when he left and, therefore, would have founded belief of his death.
been still physically able to get in touch with his wife.
Furthermore, Nilda did not present Dante's family, relatives,
or neighbors as witnesses who could have corroborated her
asseverations that she earnestly looked for Dante. These
resource persons were not even named. In Republic v.
24
Nolasco, it was held that the present spouse's bare
assertion that he inquired from his friends about his absent
spouse's whereabouts was found insufficient as the names of
said friends were not identified in the testimony nor presented
25
as witnesses. cralawred

Finally, other than Nilda's bare testimony, no other


corroborative evidence had been offered to support her
allegation that she exerted efforts to find him but was
unsuccessful. What appears from the facts as established in
this case was that Nilda simply allowed the passage of time
without actively and diligently searching for her husband,
which the Court cannot accept as constituting a "well-founded
belief that her husband is 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
26
extent of the inquiries made by the present spouse.

In fine, having fallen short of the stringent standard and


degree of due diligence required by jurisprudence to support
her claim of a "well-founded belief that her husband Dante is
already dead, the instant petition must be
granted.chanrobleslaw

WHEREFORE, the petition is GRANTED. Accordingly, the


Decision dated June 17, 2013 and the Resolution dated
September 2, 2014 rendered by the Court of Appeals in CA-
G.R. SP No. 04588 are hereby REVERSED and SET ASIDE.
The petition of respondent Nilda B. Tampus to have her
husband, Dante L. Del Mundo, declared presumptively dead
is DENIED.

SO ORDERED.