By: Joe Pallugna
THIS is the case of a woman who married an Army man in Cordova, Cebu, on Nov. 29, 1975. Three days later, the man left on a mission to Jolo, Sulu. That was the last time that the wife, Nilda, heard of her husband, Dante. Some 33 years later, Nilda filed a petition in court for the declaration of presumptive death of Dante, so that she can marry again. The Regional Trial court of Lapu-Lapu City granted the petition but the Solicitor General appealed to the Court of Appeals which affirmed the decision of the RTC. On appeal by the Government to the Supreme Court, the High Tribunal reversed the decision of the lower court and dismissed the wife petition saying: “Under Article 41 of the Family Code, there are four essential requisites for the declaration of presumptive death: (1) that the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391 of the Civil Code; (2) that the present spouse wishes to remarry; (3) that the present spouse has a well-founded belief that the absentee is dead; (4) that the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.” “The well-founded belief in the absentee’s death requires the present spouse to prove that her belief was the result of diligent and reasonable efforts to locate the absent spouse and that based on these efforts and inquiries, she believes that under the circumstances, the absent spouse is already dead. It necessitates exertion of active effort, not a passive one. As such, the mere absence of the spouse for such periods prescribed under the law, lack of news that the absent spouse is still alive, failure to communicate, or general presumption of absence under the Civil Code would not suffice. “In this case, Nilda testified that after Dante’s disappearance, she tried to locate him by making inquiries with his parents, relatives, and neighbors as to his whereabouts, but unfortunately, they also did not know where to find him. Other than said inquiries, however, Nilda made no further efforts to locate her husband. She could have called or proceeded to the AFP headquarters to request information about her husband, but failed to do so.” This was the ruling in the recent case of Republic of the Philippines versus Nilda Tampus (G.R. No. 214243, March 16, 2016). So the next time a woman desires to marry again after a length of time that her husband disappeared, she should prove that she exerted all possible efforts to locate first her missing husband. The well-founded belief of death should include all possible means to inquire, not just a token statement to cover the enumerations of circumstances stated by law. (Joe Pallugna is a lawyer based in Cagayan de Oro. E-mail: ajpallugna@gmail.com)
