SECOND DIVISION

[G.R. No. 189121. July 31, 2013.]

AMELIA GARCIA-QUIAZON,
JENNETH QUIAZON and MARIA
JENNIFER QUIAZON, petitioners, vs. MA.
LOURDES BELEN, for and in behalf of MARIA
LOURDES ELISE QUIAZON, respondent.

DECISION

PEREZ, J p:
This is a Petition for Review on Certiorari filed pursuant to Rule 45 of the
Revised Rules of Court, primarily assailing the 28 November 2008 Decision
rendered by the Ninth Division of the Court of Appeals in CA-G.R. CV No.
88589, 1 the decretal portion of which states:
WHEREFORE, premises considered, the appeal in
hereby DENIED. The assailed Decision dated March 11,
2005, and the Order dated March 24, 2006 of the
Regional Trial Court, Branch 275, Las Pias City
are AFFIRMED in toto. 2
The Facts
This case started as a Petition for Letters of Administration of the Estate of
Eliseo Quiazon (Eliseo), filed by herein respondents who are Eliseo's
common-law wife and daughter. The petition was opposed by herein
petitioners Amelia Garcia-Quiazon (Amelia) to whom Eliseo was married.
Amelia was joined by her children, JennethQuiazon (Jenneth) and Maria
Jennifer Quiazon (Jennifer).

Eliseo died intestate on 12 December 1992.

On 12 September 1994, Maria Lourdes Elise Quiazon (Elise), represented
by her mother, Ma. Lourdes Belen (Lourdes), filed a Petition for Letters of
Administration before the Regional Trial Court (RTC) of Las Pias City. 3 In
her Petition docketed as SP Proc. No. M-3957, Elise claims that she is the
natural child of Eliseo having been conceived and born at the time when her
parents were both capacitated to marry each other. Insisting on the legal
capacity of Eliseo and Lourdes to marry, Elise impugned the validity of
Eliseo's marriage to Amelia by claiming that it was bigamous for having been
contracted during the subsistence of the latter's marriage with one Filipito
Sandico (Filipito). To prove her filiation to the decedent, Elise, among others,
attached to the Petition for Letters of Administration her Certificate of Live
Birth 4 signed by Eliseo as her father. In the same petition, it was alleged
that Eliseo left real properties worth P2,040,000.00 and personal properties
worth P2,100,000.00. In order to preserve the estate of Eliseo and to prevent
the dissipation of its value, Elise sought her appointment as administratrix of
her late father's estate.
Claiming that the venue of the petition was improperly laid, Amelia, together
with her children, Jenneth and Jennifer, opposed the issuance of the letters
of administration by filing an Opposition/Motion to Dismiss. 5 The petitioners
asserted that as shown by his Death Certificate, 6 Eliseo was a resident of
Capas, Tarlac and not of Las Pias City, at the time of his death. Pursuant to
Section 1, Rule 73 of the Revised Rules of Court, 7 the petition for
settlement of decedent's estate should have been filed in Capas, Tarlac and
not in Las Pias City. In addition to their claim of improper venue, the
petitioners averred that there are no factual and legal bases for Elise to be
appointed administratix of Eliseo's estate.
In a Decision 8 dated 11 March 2005, the RTC directed the issuance of
Letters of Administration to Elise upon posting the necessary bond. The
lower court ruled that the venue of the petition was properly laid in Las Pias
City, thereby discrediting the position taken by the petitioners that Eliseo's

last residence was in Capas, Tarlac, as hearsay. The dispositive of the RTC
decision reads:
Having attained legal age at this time and there being no
showing of any disqualification or incompetence to serve
as administrator, let letters of administration over the
estate of the decedent Eliseo Quiazon, therefore, be
issued to petitioner, Ma. Lourdes Elise Quiazon, after
the approval by this Court of a bond in the amount of
P100,000.00 to be posted by her. 9
On appeal, the decision of the trial court was affirmed in toto in the 28
November 2008 Decision 10 rendered by the Court of Appeals in CA-G.R.
CV No. 88589. In validating the findings of the RTC, the Court of Appeals
held that Elise was able to prove that Eliseo and Lourdes lived together as
husband and wife by establishing a common residence at No. 26 Everlasting
Road, Phase 5, Pilar Village, Las Pias City, from 1975 up to the time of
Eliseo's death in 1992. For purposes of fixing the venue of the settlement of
Eliseo's estate, the Court of Appeals upheld the conclusion reached by the
RTC that the decedent was a resident of Las Pias City. The petitioners'
Motion for Reconsideration was denied by the Court of Appeals in its
Resolution 11 dated 7 August 2009.
The Issues
The petitioners now urge Us to reverse the assailed Court of Appeals
Decision and Resolution on the following grounds:
I. THE COURT OF APPEALS GRAVELY ERRED IN
AFFIRMING THAT ELISEO QUIAZON WAS A
RESIDENT OF LAS PIAS AND
THEREFORE[,] THE PETITION FOR
LETTERS OF ADMINISTRATION WAS
PROPERLY FILED WITH THE [RTC] OF LAS
PIAS[;]
II. THE COURT OF APPEALS GRAVELY ERRED IN
DECLARING THAT AMELIA GARCIA-

QUIAZON WAS NOT LEGALLY MARRIED TO

ELISEO QUIAZON DUE TO PRE-EXISTING
MARRIAGE[;] [AND]
III. THE COURT OF APPEALS OVERLOOKED THE
FACT THAT ELISE QUIAZON HAS NOT
SHOWN ANY INTEREST IN THE PETITION
FOR LETTERS OF ADMINISTRATION[.]12
The Court's Ruling
We find the petition bereft of merit.
Under Section 1, Rule 73 of the Rules of Court,the petition for letters of
administration of the estate of a decedent should be filed in the RTC of the
province where the decedent resides at the time of his death:
Sec. 1. Where estate of deceased persons
settled. If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or
an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the
Court of First Instance [now Regional Trial Court] in
the province in which he resides at the time of his
death, and if he is an inhabitant of a foreign country, the
Court of First Instance [now Regional Trial Court] of any
province in which he had estate. The court first taking
cognizance of the settlement of the estate of a
decedent, shall exercise jurisdiction to the exclusion of
all other courts. The jurisdiction assumed by a court, so
far as it depends on the place of residence of the
decedent, or of the location of his estate, shall not be
contested in a suit or proceeding, except in an appeal
from that court, in the original case, or when the want of
jurisdiction appears on the record. (Emphasis supplied).
The term "resides" connotes ex vi termini "actual residence" as distinguished
from "legal residence or domicile." This term "resides," like the terms

"residing" and "residence," is elastic and should be interpreted in the light of

the object or purpose of the statute or rule in which it is employed. In the
application of venue statutes and rules Section 1, Rule 73 of the Revised
Rules of Court is of such nature residence rather than domicile is the
significant factor. 13 Even where the statute uses the word "domicile" still it is
construed as meaning residence and not domicile in the technical
sense. 14 Some cases make a distinction between the terms
"residence" and "domicile" but as generally used in statutes fixing
venue, the terms are synonymous, and convey the same meaning as
the term "inhabitant." 15 In other words, "resides" should be viewed or
understood in its popular sense, meaning, the personal, actual or
physical habitation of a person, actual residence or place of
abode. 16 It signifies physical presence in a place and actual stay
thereat. 17 Venue for ordinary civil actions and that for special proceedings
have one and the same meaning. 18 As thus defined, "residence," in the
context of venue provisions, means nothing more than a person's
actual residence or place of abode, provided he resides therein with
continuity and consistency. 19
Viewed in light of the foregoing principles, the Court of Appeals cannot be
faulted for affirming the ruling of the RTC that the venue for the settlement of
the estate of Eliseo was properly laid in Las Pias City. It is evident from the
records that during his lifetime, Eliseo resided at No. 26 Everlasting Road,
Phase 5, Pilar Village, Las Pias City. For this reason, the venue for the
settlement of his estate may be laid in the said city.
In opposing the issuance of letters of administration, the petitioners harp on
the entry in Eliseo's Death Certificate that he is a resident of Capas, Tarlac
where they insist his estate should be settled. While the recitals in death
certificates can be considered proofs of a decedent's residence at the time of
his death, the contents thereof, however, is not binding on the courts. Both
the RTC and the Court of Appeals found that Eliseo had been living with
Lourdes, deporting themselves as husband and wife, from 1972 up to the
time of his death in 1995. This finding is consistent with the fact that in 1985,
Eliseo filed an action for judicial partition of properties against Amelia before
the RTC of Quezon City, Branch 106, on the ground that their marriage

is void for being bigamous. 20 That Eliseo went to the extent of taking his
marital feud with Amelia before the courts of law renders untenable
petitioners' position that Eliseo spent the final days of his life in Tarlac with
Amelia and her children. It disproves rather than supports petitioners'
submission that the lower courts' findings arose from an erroneous
appreciation of the evidence on record. Factual findings of the trial court,
when affirmed by the appellate court, must be held to be conclusive and
binding upon this Court. 21
Likewise unmeritorious is petitioners' contention that the Court of Appeals
erred in declaring Amelia's marriage to Eliseo as void ab initio. In a void
marriage, it was though no marriage has taken place, thus, it cannot be the
source of rights. Any interested party may attack the marriage directly or
collaterally. A void marriage can be questioned even beyond the lifetime of
the parties to the marriage. 22 It must be pointed out that at the time of the
celebration of the marriage of Eliseo and Amelia, the law in effect was
the Civil Code,and not the Family Code, making the ruling in Nial v.
Bayadog 23 applicable four-square to the case at hand. In Nial, the Court,
in no uncertain terms, allowed therein petitioners to file a petition for the
declaration of nullity of their father's marriage to therein respondent after the
death of their father, by contradistinguishing void from voidable marriages, to
wit:
[C]onsequently, void marriages can be questioned
even after the death of either party but voidable
marriages can be assailed only during the lifetime of
the parties and not after death of either, in which case
the parties and their offspring will be left as if the
marriage had been perfectly valid. That is why the
action or defense for nullity is imprescriptible, unlike
voidable marriages where the action prescribes. Only
the parties to a voidable marriage can assail it but any
proper interested party may attack a void marriage. 24
It was emphasized in Nial that in a void marriage, no marriage has
taken place and it cannot be the source of rights, such that any
interested party may attack the marriage directly or collaterally without

prescription, which may be filed even beyond the lifetime of the parties
to the marriage. 25
Relevant to the foregoing, there is no doubt that Elise, whose successional
rights would be prejudiced by her father's marriage to Amelia, may impugn
the existence of such marriage even after the death of her father. The said
marriage may be questioned directly by filing an action attacking the validity
thereof, or collaterally by raising it as an issue in a proceeding for the
settlement of the estate of the deceased spouse, such as in the case at bar.
Ineluctably, Elise, as a compulsory heir, 26 has a cause of action for the
declaration of the absolute nullity of the void marriage of Eliseo and Amelia,
and the death of either party to the said marriage does not extinguish such
cause of action.
Having established the right of Elise to impugn Eliseo's marriage to Amelia,
we now proceed to determine whether or not the decedent's marriage to
Amelia is void for being bigamous.
Contrary to the position taken by the petitioners, the existence of a previous
marriage between Amelia and Filipito was sufficiently established by no less
than the Certificate of Marriage issued by the Diocese of Tarlac and signed
by the officiating priest of the Parish of San Nicolas de Tolentino in Capas,
Tarlac. The said marriage certificate is a competent evidence of marriage
and the certification from the National Archive that no information relative to
the said marriage exists does not diminish the probative value of the entries
therein. We take judicial notice of the fact that the first marriage was
celebrated more than 50 years ago, thus, the possibility that a record of
marriage can no longer be found in the National Archive, given the interval of
time, is not completely remote. Consequently, in the absence of any showing
that such marriage had been dissolved at the time Amelia and Eliseo's
marriage was solemnized, the inescapable conclusion is that the latter
marriage is bigamous and, therefore, void ab initio. 27
Neither are we inclined to lend credence to the petitioners' contention that
Elise has not shown any interest in the Petition for Letters of Administration.

Section 6, Rule 78 of the Revised Rules of Court lays down the preferred
persons who are entitled to the issuance of letters of administration, thus:
Sec. 6. When and to whom letters of administration
granted. If no executor is named in the will, or the
executor or executors are incompetent, refuse the trust,
or fail to give bond, or a person dies intestate,
administration shall be granted:
(a) To the surviving husband or wife, as the case may
be, or next of kin, or both, in the discretion of the court,
or to such person as such surviving husband or wife, or
next of kin, requests to have appointed, if competent and
willing to serve;
(b) If such surviving husband or wife, as the case may
be, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow, or
next of kin, neglects for thirty (30) days after the death of
the person to apply for administration or to request that
administration be granted to some other person, it may
be granted to one or more of the principal creditors, if
competent and willing to serve;
(c) If there is no such creditor competent and willing to
serve, it may be granted to such other person as the
court may select.
Upon the other hand, Section 2 of Rule 79 provides that a petition for Letters
of Administration must be filed by an interested person, thus:
Sec. 2. Contents of petition for letters of
administration. A petition for letters of administration
must be filed by an interested person and must show, so
far as known to the petitioner:
(a) The jurisdictional facts;

(b) The names, ages, and residences of the

heirs, and the names and residences
of the creditors, of the decedent;
(c) The probable value and character of the
property of the estate;
(d) The name of the person for whom letters of
administration are prayed.
But no defect in the petition shall render void the
issuance of letters of administration.
An "interested party," in estate proceedings, is one who would be benefited
in the estate, such as an heir, or one who has a claim against the estate,
such as a creditor. Also, in estate proceedings, the phrase "next of kin" refers
to those whose relationship with the decedent is such that they are entitled to
share in the estate as distributees. 28
In the instant case, Elise, as a compulsory heir who stands to be benefited
by the distribution of Eliseo's estate, is deemed to be an interested party.
With the overwhelming evidence on record produced by Elise to prove her
filiation to Eliseo, the petitioners' pounding on her lack of interest in the
administration of the decedent's estate, is just a desperate attempt to sway
this Court to reverse the findings of the Court of Appeals. Certainly, the right
of Elise to be appointed administratixof the estate of Eliseo is on good
grounds. It is founded on her right as a compulsory heir, who, under the law,
is entitled to her legitime after the debts of the estate are satisfied. 29 Having
a vested right in the distribution of Eliseo's estate as one of his natural
children, Elise can rightfully be considered as an interested party within the
purview of the law.
WHEREFORE, premises considered, the petition is DENIED for lack of
merit. Accordingly, the Court of Appeals assailed 28 November 2008
Decision and 7 August 2009 Resolution, are AFFIRMED in toto.
SO ORDERED.

Carpio, Brion, Del Castillo and Perlas-Bernabe, JJ., concur.

||| (Garcia-Quiazon v. Belen, G.R. No. 189121, [July 31, 2013], 715 PHIL
678-691)
SECOND DIVISION
[A.M. No. MTJ-96-1088. July 19, 1996.]
RODOLFO G. NAVARRO, complainant, vs. JUDGE
HERNANDO C. DOMAGTOY, respondent.

SYLLABUS
1. CIVIL LAW; FAMILY CODE; MARRIAGES; DECLARATION OF
PRESUMPTIVE DEATH; NECESSARY IN ORDER TO CONTRACT A
SUBSEQUENT MARRIAGE. There is nothing ambiguous or difficult to
comprehend in this provision. In fact, the law is clear and simple. Even if the
spouse present has a well-founded belief that the absent spouse was
already dead, a summary proceeding for the declaration of presumptive
death is necessary in order to contract a subsequent marriage, a mandatory
requirement which has been precisely incorporated into the Family Code to
discourage subsequent marriages where it is not proven that the previous
marriage has been dissolved or a missing spouse is factually or
presumptively dead, in accordance with pertinent provisions of law. In the
case at bar, Gaspar Tagadan did not institute a summary proceeding for the
declaration of his first wife's presumptive death. Absent this judicial
declaration, he remains married to Ida Pearanda. Whether wittingly or
unwittingly, it was manifest error on the part of respondent judge to have
accepted the joint affidavit submitted by the groom. Such neglect or
ignorance of the law has resulted in a bigamous, and therefore void,
marriage. Under Article 35 of the Family Code, "The following marriage shall
be void from the beginning: (4) Those bigamous . . . marriages not falling
under Article 41."

2. ID.; ID.; ID.; INSTANCES WHEN A. MARRIAGE CAN BE HELD OUTSIDE

OF THE JUDGE'S CHAMBERS OR COURTROOM. Respondent judge
points to Article 8 and its exceptions as the justification for his having
solemnized the marriage between Floriano Sumaylo and Gemma del
Rosario outside of his court's jurisdiction. As the aforequoted provision
states, a marriage can be held outside of the judge's chambers or courtroom
only in the following instances: (1) at the point of death, (2) in remote places
in accordance with Article 29 or (3) upon request of both parties in writing in
a sworn statement to this effect. There is no pretense that either Sumaylo or
del Rosario was at the point of death or in a remote place. Moreover, the
written request presented addressed to the respondent judge was made by
only one party, Gemma del Rosario.
3. ID.; ID.; ID.; JUDGES MAY SOLEMNIZE A MARRIAGE ONLY WITHIN
HIS COURT'S JURISDICTION. More importantly, the elementary
principle underlying this provision is the authority of the solemnizing judge.
Under Article 3, one of the formal requisites of marriage is the "authority of
the solemnizing officer." Under Article 7, marriage may be solemnized by,
among others, "any incumbent member of the judiciary within the court's
jurisdiction." Article 8, which is a directory provision, refers only to the venue
of the marriage ceremony and does not alter or qualify the authority of the
solemnizing officer as provided in the preceding provision. Non-compliance
herewith will not invalidate the marriage. A priest who is commissioned and
allowed by his local ordinary to marry the faithful, is authorized to do so only
within the area of the diocese or place allowed by his Bishop. An appellate
court Justice or a Justice of this Court has jurisdiction over the entire
Philippines to solemnize marriages, regardless of the venue, as long as the
requisites of the law are complied with. However, judges who are appointed
to specific jurisdictions, may officiate in weddings only within said areas and
not beyond. Where a judge solemnizes a marriage outside his court's
jurisdiction, there is a resultant irregularity in the formal requisite laid down in
Article 3, which while it may not affect the validity of the marriage, may
subject the officiating official to administrative liability.
4. LEGAL AND JUDICIAL ETHICS; JUDGES; IGNORANCE OF
ELEMENTARY PROVISIONS OF THE LAW; CONSTITUTES GROSS

IGNORANCE OF THE LAW. The Court finds respondent to have acted in

gross ignorance of the law. The legal principles applicable in the cases
brought to our attention are elementary and uncomplicated, prompting us to
conclude that respondent's failure to apply them is due to lack of
comprehension of the law. The judiciary should be composed of persons
who, if not experts, are at least, proficient in the law they are sworn to apply,
more than the ordinary laymen. They should be skilled and competent in
understanding and applying the law. It is imperative that they be conversant
with basic legal principles like the ones involved in instant case. It is not too
much to expect them to know and apply the law intelligently. Otherwise, the
system of justice rests on a shaky foundation indeed, compounded by the
errors committed by those not learned in the law. While magistrates may at
times make mistakes in judgment, for which they are not penalized, the
respondent judge exhibited ignorance of elementary provisions of law, in an
area which has greatly prejudiced the status of married persons.
DECISION
ROMERO, J p:
The complainant in this administrative case is the Municipal Mayor of Dapa,
Surigao del Norte, Rodolfo G. Navarro. He has submitted evidence in
relation to two specific acts committed by respondent Municipal Circuit Trial
Court Judge Hernando Domagtoy, which, he contends, exhibits gross
misconduct as well as inefficiency in office and ignorance of the law.
First, on September 27, 1994, respondent judge solemnized the wedding
between Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge that
the groom is merely separated from his first wife.
Second, it is alleged that he performed a marriage ceremony between
Floriano Dador Sumaylo and Gemma G. del Rosario outside his court's
jurisdiction on October 27, 1994. Respondent judge holds office and has
jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-Burgos,
Surigao del Norte. The wedding was solemnized at the respondent judge's
residence in the municipality of Dapa, which does not fall within his
jurisdictional area of the municipalities of Sta. Monica and Burgos, located

some 40 to 45 kilometers away from the municipality of Dapa, Surigao del

Norte.
In his letter-comment to the Office of the Court Administrator, respondent
judge avers that the office and name of the Municipal Mayor of Dapa have
been used by someone else, who, as the mayor's "lackey," is overly
concerned with his actuations both as judge and as a private person. The
same person had earlier filed Administrative Matter No. 94-980-MTC, which
was dismissed for lack of merit on September 15, 1994, and Administrative
Matter No. OCA-IPI-95-16, "Antonio Adapon v. Judge Hernando
C. Domagtoy," which is still pending.
In relation to the charges against him, respondent judge seeks exculpation
from his act of having solemnized the marriage between Gaspar Tagadan, a
married man separated from his wife, and Arlyn F. Borga by stating that he
merely relied on the Affidavit issued by the Municipal Trial Judge of Basey,
Samar, confirming the fact that Mr. Tagadan and his first wife have not seen
each other for almost seven years. 1 With respect to the second charge, he
maintains that in solemnizing the marriage between Sumaylo and del
Rosario, he did not violate Article 7, paragraph 1 of the Family Code which
states that: "Marriage may be solemnized by: (1) Any incumbent member of
the judiciary within the court's jurisdiction;" and that Article 8 thereof applies
to the case in question.
The complaint was not referred, as is usual, for investigation, since the
pleadings submitted were considered sufficient for a resolution of the case. 2
Since the countercharges of sinister motives and fraud on the part of
complainant have not been sufficiently proven, they will not be dwelt upon.
The acts complained of and respondent judge's answer thereto will suffice
and can be objectively assessed by themselves to prove the latter's
malfeasance.
The certified true copy of the marriage contract between Gaspar Tagadan
and Arlyn Borga states that Tagadan's civil status is "separated." Despite this
declaration, the wedding ceremony was solemnized by respondent judge. He
presented in evidence a joint affidavit by Maurecio A. Labado, Sr. and

Eugenio Bullecer, subscribed and sworn to before Judge Demosthenes C.

Duquilla, Municipal Trial Judge of Basey, Samar. 3 The affidavit was not
issued by the latter judge, as claimed by respondent judge, but merely
acknowledged before him. In their affidavit, the affiants stated that they knew
Gaspar Tagadan to have been civilly married to Ida D. Pearanda in
September 1983; that after thirteen years of cohabitation and having borne
five children, Ida Pearanda left the conjugal dwelling in Valencia, Bukidnon
and that she has not returned nor been heard of for almost seven years,
thereby giving rise to the presumption that she is already dead.
In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is
sufficient proof of Ida Pearanda's presumptive death, and ample reason for
him to proceed with the marriage ceremony. We do not agree.
Article 41 of the Family Code expressly provides:
"A marriage contracted by any person during the
subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present had a wellfounded belief that the absent spouse was already
dead. In case of disappearance where there is danger of
death under the circumstances set forth in the
provisions of Articles 391 of the Civil Code, an absence
of only two years shall be sufficient.
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 prejudice to the effect of
reappearance of the absent spouse." (Italics added.)

There is nothing ambiguous or difficult to comprehend in this provision. In

fact, the law is clear and simple. Even if the spouse present has a well-

founded belief that the absent spouse was already dead, a summary
proceeding for the declaration of presumptive death is necessary in order to
contract a subsequent marriage, a mandatory requirement which has been
precisely incorporated into the Family Code to discourage subsequent
marriages where it is not proven that the previous marriage has been
dissolved or a missing spouse is factually or presumptively dead, in
accordance with pertinent provisions of law.
In the case at bar, Gaspar Tagadan did not institute a summary proceeding
for the declaration of his first wife's presumptive death. Absent this judicial
declaration, he remains married to Ida Pearanda. Whether wittingly, or
unwittingly, it was manifest error on the part of respondent judge to have
accepted the joint affidavit submitted by the groom. Such neglect or
ignorance of the law has resulted in a bigamous, and therefore void,
marriage. Under Article 35 of the Family Code, "The following marriage shall
be void from the beginning: (4) Those bigamous . . . marriages not falling
under Article 41."
The second issue involves the solemnization of a marriage ceremony
outside the court's jurisdiction, covered by Articles 7 and 8 of the Family
Code, thus:
"Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the
court's jurisdiction;
. . . (Emphasis supplied.)
Art. 8. The marriage shall be solemnized publicly in the
chambers of the judge or in open court, in the church,
chapel or temple, or in the office of the consul-general,
consul or vice-consul, as the case may be, and not
elsewhere, except in cases of marriages contracted on
the point of death or in remote places in accordance
with Article 29 of this Code, or where both parties
request the solemnizing officer in writing in which case

the marriage may be solemnized at a house or place

designated by them in a sworn statement to that effect."
Respondent judge points to Article 8 and its exceptions as the justifications
for his having solemnized the marriage between Floriano Sumaylo and
Gemma del Rosario outside of his court's jurisdiction. As the aforequoted
provision states, a marriage can be held outside of the judge's chambers or
courtroom only in the following instances: (1) at the point of death, (2) in
remote places in accordance with Article 29 or (3) upon request of both
parties in writing in a sworn statement to this effect. There is no pretense that
either Sumaylo or del Rosario was at the point of death or in a remote place.
Moreover, the written request presented addressed to the respondent judge
was made by only one party, Gemma del Rosario. 4
More importantly, the elementary principle underlying this provision is the
authority of the solemnizing judge. Under Article 3, one of the formal
requisites of marriage is the "authority of the solemnizing officer." Under
Article 7, marriage may be solemnized by, among others, "any incumbent
member of the judiciary within the court's jurisdiction." Article 8, which is a
directory provision, refers only to the venue of the marriage ceremony and
does not alter or qualify the authority of the solemnizing officer as provided in
the preceding provision. Non-compliance herewith will not invalidate the
marriage.
A priest who is commissioned and allowed by his local ordinary to marry the
faithful, is authorized to do so only within the area of the diocese or place
allowed by his Bishop. An appellate court Justice or a Justice of this Court
has jurisdiction over the entire Philippines to solemnize marriages,
regardless of the venue, as long as the requisites of the law are complied
with. However, judges who are appointed to specific jurisdictions, may
officiate in weddings only within said areas and not beyond. Where a judge
solemnizes a marriage outside his court's jurisdiction, there is a resultant
irregularity in the formal requisite laid down in Article 3, which while it may
not affect the validity of the marriage, may subject the officiating official to
administrative liability. 5

Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta.

Monica and Burgos, he was not clothed with authority to solemnize a
marriage in the municipality of Dapa, Surigao del Norte. By citing Article 8
and the exceptions therein as grounds for the exercise of his misplaced
authority, respondent judge again demonstrated a lack of understanding of
the basic principles of civil law.

IN VIEW OF THE FOREGOING, respondent Judge Hernando

C. Domagtoy is hereby SUSPENDED for a period of six (6) months and
given a STERN WARNING that a repetition of the same or similar acts will
be deat with more severely.

Accordingly, the Court finds respondent to have acted in gross ignorance of

the law. The legal principles applicable in the cases brought to our attention
are elementary and uncomplicated, prompting us to conclude that
respondent's failure to apply them is due to a lack of comprehension of the
law.

Regalado, Puno, Mendoza and Torres, Jr., JJ ., concur.

The judiciary should be composed of persons who, if not experts, are at

least, proficient in the law they are sworn to apply, more than the ordinary
laymen. They should be skilled and competent in understanding and
applying the law. It is imperative that they be conversant with basic legal
principles like the ones involved in instant case.6 It is not too much to expect
them to know and apply the law intelligently. 7 Otherwise, the system of
justice rests on a shaky foundation indeed, compounded by the errors
committed by those not learned in the law. While magistrate may at times
make mistakes in judgment, for which they are not penalized, the respondent
judge exhibited ignorance of elementary provisions of law, in an area which
has greatly prejudiced the status of married persons.
The marriage between Gaspar Tagadan and Arlyn Borga is considered
bigamous and void, there being a subsisting marriage between Gaspar
Tagadan and Ida Pearanda.
The Office of the Court Administrator recommends, in its Memorandum to
the Court, a six-month suspension and a stern warning that a repetition of
the same or similar acts will be dealt with more severely. Considering that
one of the marriages in question resulted in a bigamous union and therefore
void, and the other lacked the necessary authority of respondent judge, the
Court adopts said recommendation. Respondent is advised to be more
circumspect in applying the law and to cultivate a deeper understanding of
the law.

SO ORDERED.

||| (Navarro v. Domagtoy, A.M. No. MTJ-96-1088, [July 19, 1996], 328 PHIL
435-445)

SECOND DIVISION
[G.R. No. 187061. October 8, 2014.]
CELERINA J. SANTOS, petitioner, vs. RICARDO
T. SANTOS, respondent.

DECISION

LEONEN, J p:
The proper remedy for a judicial declaration of presumptive death obtained
by extrinsic fraud is an action to annul the judgment. An affidavit of
reappearance is not the proper remedy when the person declared
presumptively dead has never been absent.
This is a petition for review on certiorari filed by Celerina J. Santos, assailing
the Court of Appeals' resolutions dated November 28, 2008 and March 5,
2009. The Court of Appeals dismissed the petition for the annulment of the
trial court's judgment declaring her presumptively dead.

On July 27, 2007, the Regional Trial Court of Tarlac City declared petitioner
Celerina J. Santos (Celerina) presumptively dead after her husband,
respondent Ricardo T.Santos (Ricardo), had filed a petition for declaration of
absence or presumptive death for the purpose of remarriage on June 15,
2007. 1 Ricardo remarried on September 17, 2008. 2
In his petition for declaration of absence or presumptive death, Ricardo
alleged that he and Celerina rented an apartment somewhere in San Juan,
Metro Manila, after they had gotten married on June 18, 1980. 3 After a year,
they moved to Tarlac City. They were engaged in the buy and sell
business. 4
Ricardo claimed that their business did not prosper. 5 As a result, Celerina
convinced him to allow her to work as a domestic helper in Hong
Kong. 6 Ricardo initially refused but because of Celerina's insistence, he
allowed her to work abroad. 7 She allegedly applied in an employment
agency in Ermita, Manila, in February 1995. She left Tarlac two months after
and was never heard from again. 8 caCTHI
Ricardo further alleged that he exerted efforts to locate Celerina. 9 He went
to Celerina's parents in Cubao, Quezon City, but they, too, did not know their
daughter's whereabouts. 10 He also inquired about her from other relatives
and friends, but no one gave him any information. 11
Ricardo claimed that it was almost 12 years from the date of his Regional
Trial Court petition since Celerina left. He believed that she had passed
away. 12
Celerina claimed that she learned about Ricardo's petition only sometime in
October 2008 when she could no longer avail the remedies of new trial,
appeal, petition for relief, or other appropriate remedies. 13
On November 17, 2008, Celerina filed a petition for annulment of
judgment 14 before the Court of Appeals on the grounds of extrinsic fraud
and lack of jurisdiction. She argued that she was deprived her day in court
when Ricardo, despite his knowledge of her true residence, misrepresented
to the court that she was a resident of Tarlac City. 15 According to Celerina,
her true residence was in Neptune Extension, Congressional Avenue,

Quezon City. 16 This residence had been her and Ricardo's conjugal
dwelling since 1989 until Ricardo left in May 2008. 17 As a result of
Ricardo's misrepresentation, she was deprived of any notice of and
opportunity to oppose the petition declaring her presumptively dead. 18
Celerina claimed that she never resided in Tarlac. 19 She also never left and
worked as a domestic helper abroad. 20 Neither did she go to an
employment agency in February 1995. 21 She also claimed that it was not
true that she had been absent for 12 years. Ricardo was aware that she
never left their conjugal dwelling in Quezon City. 22 It was he who left the
conjugal dwelling in May 2008 to cohabit with another woman. 23 Celerina
referred to a joint affidavit executed by their children to support her
contention that Ricardo made false allegations in his petition. 24
Celerina also argued that the court did not acquire jurisdiction over Ricardo's
petition because it had never been published in a newspaper. 25 She added
that the Office of the Solicitor General and the Provincial Prosecutor's Office
were not furnished copies of Ricardo's petition. 26
The Court of Appeals issued the resolution dated November 28, 2008,
dismissing Celerina's petition for annulment of judgment for being a wrong
mode of remedy. 27According to the Court of Appeals, the proper remedy
was to file a sworn statement before the civil registry, declaring her
reappearance in accordance with Article 42 of the Family Code. 28 cADSCT
Celerina filed a motion for reconsideration of the Court of Appeals' resolution
dated November 28, 2008. 29 The Court of Appeals denied the motion for
reconsideration in the resolution dated March 5, 2009. 30
Hence, this petition was filed.
The issue for resolution is whether the Court of Appeals erred in dismissing
Celerina's petition for annulment of judgment for being a wrong remedy for a
fraudulently obtained judgment declaring presumptive death.
Celerina argued that filing an affidavit of reappearance under Article 42 of
the Family Code is appropriate only when the spouse is actually absent and
the spouse seeking the declaration of presumptive death actually has a well-

founded belief of the spouse's death. 31 She added that it would be

inappropriate to file an affidavit of reappearance if she did not disappear in
the first place. 32 She insisted that an action for annulment of judgment is
proper when the declaration of presumptive death is obtained
fraudulently. 33
Celerina further argued that filing an affidavit of reappearance under Article
42 of the Family Code would not be a sufficient remedy because it would not
nullify the legal effects of the judgment declaring her presumptive death. 34
In Ricardo's comment, 35 he argued that a petition for annulment of
judgment is not the proper remedy because it cannot be availed when there
are other remedies available. Celerina could always file an affidavit of
reappearance to terminate the subsequent marriage. Ricardo iterated the
Court of Appeals' ruling that the remedy afforded to Celerina under Article 42
of the Family Code is the appropriate remedy.
The petition is meritorious.
Annulment of judgment is the remedy when the Regional Trial Court's
judgment, order, or resolution has become final, and the "remedies of new
trial, appeal, petition for relief (or other appropriate remedies) are no longer
available through no fault of the petitioner." 36
The grounds for annulment of judgment are extrinsic fraud and lack of
jurisdiction. 37 This court defined extrinsic fraud in Stilianopulos v. City of
Legaspi: 38
For fraud to become a basis for annulment of judgment,
it has to be extrinsic or actual. It is intrinsic when the
fraudulent acts pertain to an issue involved in the
original action or where the acts constituting the fraud
were or could have been litigated. It is extrinsic or
collateral when a litigant commits acts outside of the trial
which prevents a party from having a real contest, or
from presenting all of his case, such that there is no fair
submission of the controversy. 39 (Emphasis supplied)

Celerina alleged in her petition for annulment of judgment that there was
fraud when Ricardo deliberately made false allegations in the court with
respect to her residence. 40 Ricardo also falsely claimed that she was
absent for 12 years. There was also no publication of the notice of hearing of
Ricardo's petition in a newspaper of general circulation. 41 Celerina claimed
that because of these, she was deprived of notice and opportunity to oppose
Ricardo's petition to declare her presumptively dead. 42 HTaIAC
Celerina alleged that all the facts supporting Ricardo's petition for declaration
of presumptive death were false. 43 Celerina further claimed that the court
did not acquire jurisdiction because the Office of the Solicitor General and
the Provincial Prosecutor's Office were not given copies of Ricardo's
petition. 44
These are allegations of extrinsic fraud and lack of jurisdiction. Celerina
alleged in her petition with the Court of Appeals sufficient ground/s for
annulment of judgment.
Celerina filed her petition for annulment of judgment 45 on November 17,
2008. This was less than two years from the July 27, 2007 decision declaring
her presumptively dead and about a month from her discovery of the
decision in October 2008. The petition was, therefore, filed within the fouryear period allowed by law in case of extrinsic fraud, and before the action is
barred by laches, which is the period allowed in case of lack of
jurisdiction. 46
There was also no other sufficient remedy available to Celerina at the time of
her discovery of the fraud perpetrated on her.
The choice of remedy is important because remedies carry with them certain
admissions, presumptions, and conditions.
The Family Code provides that it is the proof of absence of a spouse for four
consecutive years, coupled with a well-founded belief by the present spouse
that the absent spouse is already dead, that constitutes a justification for a
second marriage during the subsistence of another marriage. 47

The Family Code also provides that the second marriage is in danger of
being terminated by the presumptively dead spouse when he or she
reappears. Thus:

the absent or presumptively dead spouse will cause the termination of the
subsequent marriage only when all the conditions enumerated in the Family
Code are present.

Article 42. The subsequent marriage referred to in the

preceding Article shall be automatically terminated by
the recording of the affidavit of reappearance of the
absent spouse, unless there is a judgment annulling
the previous marriage or declaring it void ab initio.

Hence, the subsequent marriage may still subsist despite the absent or
presumptively dead spouse's reappearance (1) if the first marriage has
already been annulled or has been declared a nullity; (2) if the sworn
statement of the reappearance is not recorded in the civil registry of the
subsequent spouses' residence; (3) if there is no notice to the subsequent
spouses; or (4) if the fact of reappearance is disputed in the proper courts of
law, and no judgment is yet rendered confirming such fact of reappearance.

A sworn statement of the fact and circumstances of

reappearance shall be recorded in the civil registry of
the residence of the parties to the subsequent
marriage at the instance of any interested person,
with due notice to the spouses of the subsequent
marriage and without prejudice to the fact of
reappearance being judicially determined in case
such fact is disputed. (Emphasis supplied)
In other words, the Family Code provides the presumptively dead spouse
with the remedy of terminating the subsequent marriage by mere
reappearance.
The filing of an affidavit of reappearance is an admission on the part of the
first spouse that his or her marriage to the present spouse was terminated
when he or she was declared absent or presumptively dead.
Moreover, a close reading of the entire Article 42 reveals that the termination
of the subsequent marriage by reappearance is subject to several conditions:
(1) the non-existence of a judgment annulling the previous marriage or
declaring it void ab initio; (2) recording in the civil registry of the residence of
the parties to the subsequent marriage of the 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 must either be undisputed or judicially determined. SDHacT
The existence of these conditions means that reappearance does not always
immediately cause the subsequent marriage's termination. Reappearance of

When subsequent marriages are contracted after a judicial declaration of

presumptive death, a presumption arises that the first spouse is already
dead and that the second marriage is legal. This presumption should prevail
over the continuance of the marital relations with the first spouse. 48 The
second marriage, as with all marriages, is presumed valid. 49 The burden of
proof to show that the first marriage was not properly dissolved rests on the
person assailing the validity of the second marriage. 50
This court recognized the conditional nature of reappearance as a cause for
terminating the subsequent marriage in Social Security System v. Vda. de
Bailon. 51 This court noted 52 that mere reappearance will not terminate the
subsequent marriage even if the parties to the subsequent marriage were
notified if there was "no step . . . taken to terminate the subsequent marriage,
either by [filing an] affidavit [of reappearance] or by court action[.]" 53 "Since
the second marriage has been contracted because of a presumption that the
former spouse is dead, such presumption continues inspite of the spouse's
physical reappearance, and by fiction of law, he or she must still be regarded
as legally an absentee until the subsequent marriage is terminated as
provided by law." 54
The choice of the proper remedy is also important for purposes of
determining the status of the second marriage and the liabilities of the
spouse who, in bad faith, claimed that the other spouse was absent.

A second marriage is bigamous while the first subsists. However, a

bigamous subsequent marriage may be considered valid when the following
are present: cECTaD
1) The

prior spouse had

consecutive years;

been

absent

for

four

2) The spouse present has a well-founded belief that the

absent spouse was already dead;
3) There must be a summary proceeding for the
declaration of presumptive death of the absent
spouse; and
4) There is a court declaration of presumptive death of
the absent spouse. 55
A subsequent marriage contracted in bad faith, even if it was contracted after
a court declaration of presumptive death, lacks the requirement of a wellfounded belief 56that 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 considered bigamous and
void. 57 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
another marriage still applies. 58
If, as Celerina contends, Ricardo was in bad faith when he filed his petition to
declare her presumptively dead and when he contracted the subsequent
marriage, such marriage would be considered void for being bigamous under
Article 35 (4) of the Family Code. This is because the circumstances lack the
element of "well-founded belief" under Article 41 of the Family Code, which
is essential for the exception to the rule against bigamous marriages to
apply. 59

The provision on reappearance in the Family Code as a remedy to effect the

termination of the subsequent marriage does not preclude the spouse who
was declared presumptively dead from availing other remedies existing in
law. This court had, in fact, recognized that a subsequent marriage may also
be terminated by filing "an action in court to prove the reappearance of the
absentee and obtain a declaration of dissolution or termination of the
subsequent marriage." 60
Celerina does not admit to have been absent. She also seeks not merely the
termination of the subsequent marriage but also the nullification of its effects.
She contends that reappearance is not a sufficient remedy because it will
only terminate the subsequent marriage but not nullify the effects of the
declaration of her presumptive death and the subsequent marriage.
Celerina is correct. Since an undisturbed subsequent marriage under Article
42 of the Family Code is valid until terminated, the "children of such marriage
shall be considered legitimate, and the property relations of the spouse[s] in
such marriage will be the same as in valid marriages." 61 If it is terminated
by mere reappearance, the children of the subsequent marriage conceived
before the termination shall still be considered legitimate. 62 Moreover, a
judgment declaring presumptive death is a defense against prosecution for
bigamy. 63
It is true that in most cases, an action to declare the nullity of the subsequent
marriage may nullify the effects of the subsequent marriage, specifically, in
relation to the status of children and the prospect of prosecuting a
respondent for bigamy.
However, "a Petition for Declaration of Absolute Nullity of Void Marriages
may be filed solely by the husband or wife." 64 This means that even if
Celerina is a real party in interest who stands to be benefited or injured by
the outcome of an action to nullify the second marriage, 65 this remedy is
not available to her.
Therefore, for the purpose of not only terminating the subsequent marriage
but also of nullifying the effects of the declaration of presumptive death and
the subsequent marriage, mere filing of an affidavit of reappearance would

not suffice. Celerina's choice to file an action for annulment of judgment will,
therefore, lie. CAIaHS
WHEREFORE, the case is REMANDED to the Court of Appeals for
determination of the existence of extrinsic fraud, grounds for
nullity/annulment of the first marriage, and the merits of the petition.
SO ORDERED.
Carpio, Del Castillo, Mendoza and Perlas-Bernabe, JJ., concur.
*

||| (Santos v. Santos, G.R. No. 187061, [October 8, 2014])

EN BANC
[G.R. No. 184621. December 10, 2013.]
REPUBLIC OF THE PHILIPPINES, petitioner, vs.
MARIA FE ESPINOSA CANTOR, respondent.

DECISION

BRION, J p:
The petition for review on certiorari 1 before us assails the decision 2 dated
August 27, 2008 of the Court of Appeals (CA) in CA-G.R. SP No. 01558-MIN
which affirmed the order 3 dated December 15, 2006 of the Regional Trial
Court (RTC), Branch 25, Koronadal City, South Cotabato, in SP Proc. Case
No. 313-25, declaring Jerry F. Cantor, respondent Maria Fe
Espinosa Cantor's husband, presumptively dead under Article 41 of
the Family Code.
The Factual Antecedents

The respondent and Jerry were married on September 20, 1997. They lived
together as husband and wife in their conjugal dwelling in Agan Homes,
Koronadal City, South Cotabato. Sometime in January 1998, the couple had
a violent quarrel brought about by: (1) the respondent's inability to reach
"sexual climax" whenever she and Jerry would have intimate moments; and
(2) Jerry's expression of animosity toward the respondent's father.
After their quarrel, Jerry left their conjugal dwelling and this was the last time
that the respondent ever saw him. Since then, she had not seen,
communicated nor heard anything from Jerry or about his whereabouts.
On May 21, 2002, or more than four (4) years from the time of Jerry's
disappearance, the respondent filed before the RTC a petition 4 for her
husband's declaration of presumptive death, docketed as SP Proc. Case No.
313-25. She claimed that she had a well-founded belief that Jerry was
already dead. She alleged that she had inquired from her mother-in-law, her
brothers-in-law, her sisters-in-law, as well as her neighbors and friends, but
to no avail. In the hopes of finding Jerry, she also allegedly made it a point to
check the patients' directory whenever she went to a hospital. All these
earnest efforts, the respondent claimed, proved futile, prompting her to file
the petition in court. EHCaDS
The Ruling of the RTC
After due proceedings, the RTC issued an order granting the respondent's
petition and declaring Jerry presumptively dead. It concluded that the
respondent had a well-founded belief that her husband was already dead
since more than four (4) years had passed without the former receiving any
news about the latter or his whereabouts. The dispositive portion of the order
dated December 15, 2006 reads:
WHEREFORE, the Court hereby declares, as it hereby
declared
that
respondent
Jerry
F. Cantor is
presumptively dead pursuant to Article 41 of the Family
Code of the Philippines without prejudice to the effect of
the reappearance of the absent spouse Jerry
F. Cantor. 5

The Ruling of the CA

The case reached the CA through a petition for certiorari 6 filed by the
petitioner, Republic of the Philippines, through the Office of the Solicitor
General (OSG). In its August 27, 2008 decision, the CA dismissed the
petitioner's petition, finding no grave abuse of discretion on the RTC's part,
and, accordingly, fully affirmed the latter's order, thus:
WHEREFORE, premises foregoing (sic), the instant
petition is hereby DISMISSED and the assailed Order
dated
December
15,
2006
declaring
Jerry
F. Cantor presumptively dead is hereby AFFIRMED in
toto. 7
The petitioner brought the matter via a Rule 45 petition before this Court.
The Petition
The petitioner contends that certiorari lies to challenge the decisions,
judgments or final orders of trial courts in petitions for declaration of
presumptive death of an absent spouse under Rule 41 of the Family Code. It
maintains that although judgments of trial courts in summary judicial
proceedings, including presumptive death cases, are deemed immediately
final and executory (hence, not appealable under Article 247 of the Family
Code), this rule does not mean that they are not subject to review
on certiorari.
The petitioner also posits that the respondent did not have a well-founded
belief to justify the declaration of her husband's presumptive death. It claims
that the respondent failed to conduct the requisite diligent search for her
missing husband. Likewise, the petitioner invites this Court's attention to the
attendant circumstances surrounding the case, particularly, the degree of
search conducted and the respondent's resultant failure to meet the strict
standard under Article 41 of the Family Code.EHcaDT
The Issues
The petition poses to us the following issues:

(1) Whether certiorari lies to challenge the decisions, judgments or final

orders of trial courts in petitions for declaration of presumptive death of an
absent spouse under Article 41 of the Family Code; and
(2) Whether the respondent had a well-founded belief that Jerry is already
dead.
The Court's Ruling
We grant the petition.
a. On the Issue of the Propriety of Certiorari as a Remedy
Court's Judgment in the Judicial
Proceedings for Declaration of
Presumptive Death is Final and
Executory, Hence, Unappealable
The Family Code was explicit that the court's judgment in summary
proceedings, such as the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code, shall be immediately final and
executory.
Article 41, in relation to Article 247, of the Family Code provides:
Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a wellfounded belief that the absent spouse was already
dead. In case of disappearance where there is danger of
death under the circumstances set forth in the
provisions of Article 391 of the Civil Code,an absence of
only two years shall be sufficient.
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 prejudice to

reappearance of the absent spouse.

the

effect

of

Art. 247. The judgment of the court shall

immediately final and executory. [underscores ours]

be

With the judgment being final, it necessarily follows that it is no longer

subject to an appeal, the dispositions and conclusions therein having
become immutable and unalterable not only as against the parties but even
as against the courts. 8 Modification of the court's ruling, no matter how
erroneous is no longer permissible. The final and executory nature of this
summary proceeding thus prohibits the resort to appeal. As explained
in Republic of the Phils. v. Bermudez-Lorino, 9 the right to appeal is not
granted to parties because of the express mandate of Article 247 of
the Family Code, to wit:
In Summary Judicial Proceedings under the Family
Code, there is no reglementary period within which
to perfect an appeal, precisely because judgments
rendered thereunder, by express provision of
[Article] 247, Family Code, supra, are "immediately
final and executory." It was erroneous, therefore, on
the part of the RTC to give due course to the Republic's
appeal and order the transmittal of the entire records of
the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review
a judgment which, by express provision of law, is
immediately final and executory. As we have said
inVeloria vs. Comelec, "the right to appeal is not a
natural right nor is it a part of due process, for it is
merely a statutory privilege." Since, by express
mandate of Article 247 of the Family Code, all
judgments
rendered
in
summary
judicial
proceedings in Family Law are "immediately final
and executory," the right to appeal was not granted
to any of the parties therein. The Republic of the

Philippines, as oppositor in the petition for declaration of

presumptive death, should not be treated differently. It
had no right to appeal the RTC decision of November 7,
2001. [emphases ours; italics supplied]
Certiorari Lies to Challenge the
Decisions, Judgments or Final
Orders of Trial Courts in a Summary
Proceeding for the Declaration of
Presumptive Death under the
Family Code
A losing party in this proceeding, however, is not entirely left without a
remedy. While jurisprudence tells us that no appeal can be made from the
trial court's judgment, an aggrieved party may, nevertheless, file a petition
for certiorari under Rule 65 of the Rules of Court to question any abuse of
discretion amounting to lack or excess of jurisdiction that transpired. IDCHTE
As held in De los Santos v. Rodriguez, et al., 10 the fact that a decision has
become final does not automatically negate the original action of the CA to
issue certiorari, prohibition and mandamus in connection with orders or
processes issued by the trial court. Certiorari may be availed of where a
court has acted without or in excess of jurisdiction or with grave abuse of
discretion, and where the ordinary remedy of appeal is not available. Such a
procedure finds support in the case of Republic v. Tango,11 wherein we held
that:
This case presents an opportunity for us to settle the
rule on appeal of judgments rendered in summary
proceedings under the Family Code and accordingly,
refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI:
SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY
LAW, establishes the rules that govern summary court
proceedings in the Family Code:

"ART. 238. Until modified by the Supreme Court, the

procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court
proceedings. Such cases shall be decided in an
expeditious manner without regard to technical rules."
In turn, Article 253 of the Family Code specifies the
cases covered by the rules in chapters two and three of
the same title. It states:
"ART. 253. The foregoing rules in Chapters 2 and 3
hereof shall likewise govern summary
proceedings filed under Articles 41, 51, 69, 73, 96, 124
and 217, insofar as they are applicable." (Emphasis
supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
"ART. 247. The judgment of the court shall be
immediately final and executory."
By express provision of law, the judgment of the court in
a summary proceeding shall be immediately final and
executory. As a matter of course, it follows that no
appeal can be had of the trial court's judgment in a
summary proceeding for the declaration of presumptive
death of an absent spouse under Article 41 of
the Family Code. It goes without saying, however,
that an aggrieved party may file a petition
for certiorari to question abuse of discretion
amounting to lack of jurisdiction. Such petition
should be filed in the Court of Appeals in
accordance with the Doctrine of Hierarchy of
Courts. To be sure, even if the Court's original
jurisdiction to issue a writ of certiorari is concurrent with
the RTCs and the Court of Appeals in certain cases,

such concurrence does not sanction an unrestricted

freedom of choice of court forum. [emphasis ours]
Viewed in this light, we find that the petitioner's resort to certiorari under Rule
65 of the Rules of Court to question the RTC's order declaring Jerry
presumptively dead was proper. AaEDcS
b.On the Issue of the Existence of Well-Founded Belief
The Essential Requisites for the
Declaration of Presumptive Death
under Article 41 of the Family Code
Before a judicial declaration of presumptive death can be obtained, it must
be shown that the prior spouse had been absent for four consecutive years
and the present spouse had a well-founded belief that the prior spouse was
already dead. Under Article 41 of the Family Code, there are four (4)
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, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded
belief that the absentee is dead; and
4. That the present spouse files a summary proceeding
for the declaration of presumptive death of the
absentee. 12
The Present Spouse Has the Burden
of Proof to Show that All the
Requisites under Article 41 of the
Family Code are Present

The burden of proof rests on the present spouse to show that all the
requisites under Article 41 of the Family Code are present. Since it is the
present spouse who, for purposes of declaration of presumptive death,
substantially asserts the affirmative of the issue, it stands to reason that the
burden of proof lies with him/her. He who alleges a fact has the burden of
proving it and mere allegation is not evidence. 13
Declaration
of
under
Article
41
Imposes a Stricter Standard

Presumptive
of
the Family

Death
Code

Notably, Article 41 of the Family Code, compared to the old provision of

the Civil Code which it superseded, imposes a stricter standard. It requires
a "well-founded belief" that the absentee is already dead before a petition for
declaration of presumptive death can be granted. We have had occasion to
make the same observation inRepublic v. Nolasco, 14 where we noted the
crucial differences between Article 41 of the Family Code and Article 83 of
the Civil Code,to wit:
Under Article 41, the time required for the
presumption to arise has been shortened to four (4)
years; however, there is need for a judicial declaration
of presumptive death to enable the spouse present to
remarry. Also, Article 41 of the Family Code imposes
a stricter standard than the Civil Code: Article 83 of
the Civil Code merely requires either that there be no
news that such absentee is still alive; or the absentee
is generally considered to be dead and believed to be
so by the spouse present, or is presumed dead under
Articles 390 and 391 of the Civil Code.The Family
Code, upon the other hand, prescribes as "well
founded belief" that the absentee isalready
dead before a petition for declaration of
presumptive death can be granted.
Thus, mere absence of the spouse (even for such period required by the
law), lack of any news that such absentee is still alive, failure to

communicate or general presumption of absence under the Civil Code would

not suffice. This conclusion proceeds from the premise that Article 41 of
the Family Code places upon the present spouse the burden of proving the
additional and more stringent requirement of "well-founded belief" which can
only be discharged upon a showing of proper and honest-to-goodness
inquiries and efforts to ascertain not only the absent spouse's whereabouts
but, more importantly, that the absent spouse is still alive or is already
dead. 15
The
Belief

Requirement

of

Well-Founded

The law did not define what is meant by "well-founded belief." It depends
upon the circumstances of each particular case. Its determination, so to
speak, remains on a case-to-case basis. To be able to comply with this
requirement, the present spouse must prove that his/her belief was the result
of diligent and reasonable efforts and inquiries to locate the absent
spouse and that based on these efforts and inquiries, he/she believes that
under the circumstances, the absent spouse is already dead. It requires
exertion of active effort (not a mere passive one).
To illustrate this degree of "diligent and reasonable search" required by the
law, an analysis of the following relevant cases is warranted:
i. Republic of the Philippines v. Court of Appeals (Tenth Div.) 16
In Republic of the Philippines v. Court of Appeals (Tenth Div.), 17 the Court
ruled that the present spouse failed to prove that he had a well-founded
belief that his absent spouse was already dead before he filed his petition.
His efforts to locate his absent wife allegedly consisted of the following:
(1) He went to his in-laws' house to look for her;
(2) He sought the barangay captain's aid to locate her;
(3) He went to her friends' houses to find her and
inquired about her whereabouts among his
friends;

(4) He went to Manila and worked as a part-time taxi

driver to look for her in malls during his free
time;
(5) He went back to Catbalogan and again looked for
her; and
(6) He reported her disappearance to the local police
station and to the NBI.
Despite these alleged "earnest efforts," the Court still ruled against the
present spouse. The Court found that he failed to present the persons from
whom he allegedly made inquiries and only reported his wife's absence after
the OSG filed its notice to dismiss his petition in the RTC.
The Court also provided the following criteria for determining the existence of
a "well-founded belief" under Article 41 of the Family Code:
The belief of the present spouse must be the result of
proper and honest to goodness inquiries and efforts
to ascertain the whereabouts of the absent spouse
and whether the absent spouse is still alive or is
already dead. Whether or not the spouse present acted
on a well-founded belief of death of the absent spouse
depends upon the inquiries to be drawn from a great
many circumstances occurring before and after the
disappearance of the absent spouse and the nature
and extent of the inquiries made by [the] present
spouse. 18
ii. Republic v. Granada 19
Similarly in Granada, the Court ruled that the absent spouse failed to prove
her "well-founded belief" that her absent spouse was already dead prior to
her filing of the petition. In this case, the present spouse alleged that her
brother had made inquiries from their relatives regarding the absent spouse's
whereabouts. The present spouse did not report to the police nor seek the
aid of the mass media. Applying the standards in Republic of the

Philippines v. Court of Appeals (Tenth Div.), 20 the Court ruled against the
present spouse, as follows:
Applying the foregoing standards to the present case,
petitioner points out that respondent Yolanda did not
initiate a diligent search to locate her absent
husband. While her brother Diosdado Cadacio
testified to having inquired about the whereabouts
of Cyrus from the latter's relatives, these relatives
were not presented to corroborate Diosdado's
testimony. In short, respondent was allegedly not
diligent in her search for her husband. Petitioner argues
that if she were, she would have sought information from
the Taiwanese Consular Office or assistance from other
government agencies in Taiwan or the Philippines. She
could have also utilized mass media for this end, but she
did not. Worse, she failed to explain these omissions.
iii. Republic v. Nolasco 21
In Nolasco, the present spouse filed a petition for declaration of presumptive
death of his wife, who had been missing for more than four years. He
testified that his efforts to find her consisted of:
(1) Searching for her whenever his ship docked in
England;
(2) Sending her letters which were all returned to him;
and
(3) Inquiring from their friends regarding her
whereabouts, which all proved fruitless.
The Court ruled that the present spouse's investigations were too sketchy to
form a basis that his wife was already dead and ruled that the pieces of
evidence only proved that his wife had chosen not to communicate with their
common acquaintances, and not that she was dead.

iv. The present case

In the case at bar, the respondent's "well-founded belief" was anchored on
her alleged "earnest efforts" to locate Jerry, which consisted of the
following: TaDCEc
(1) She made inquiries about Jerry's whereabouts from
her in-laws, neighbors and friends; and
(2) Whenever she went to a hospital, she saw to it that
she looked through the patients' directory,
hoping to find Jerry.
These efforts, however, fell short of the "stringent standard" and degree of
diligence required by jurisprudence for the following reasons:
First, the respondent did not actively look for her missing husband. It can be
inferred from the records that her hospital visits and her consequent
checking of the patients' directory therein were unintentional. She did not
purposely undertake a diligent search for her husband as her hospital visits
were not planned nor primarily directed to look for him. This Court thus
considers these attempts insufficient to engender a belief that her husband is
dead.
Second, she did not report Jerry's absence to the police nor did she seek
the aid of the authorities to look for him. While a finding of well-founded belief
varies with the nature of the situation in which the present spouse is placed,
under present conditions, we find it proper and prudent for a present spouse,
whose spouse had been missing, to seek the aid of the authorities or, at the
very least, report his/her absence to the police.
Third, she did not present as witnesses Jerry's relatives or their neighbors
and friends, who can corroborate her efforts to locate Jerry. Worse, these
persons, from whom she allegedly made inquiries, were not even named. As
held in Nolasco, the present spouse's bare assertion that he inquired from
his friends about his absent spouse's whereabouts is insufficient as the
names of the friends from whom he made inquiries were not identified in the
testimony nor presented as witnesses.

Lastly, there was no other corroborative evidence to support the

respondent's claim that she conducted a diligent search. Neither was there
supporting evidence proving that she had a well-founded belief other than
her bare claims that she inquired from her friends and in-laws about her
husband's whereabouts.
In sum, the Court is of the view that the respondent merely engaged in a
"passive search" where she relied on uncorroborated inquiries from her inlaws, neighbors and friends. She failed to conduct a diligent
search because her alleged efforts are insufficient to form a well-founded
belief that her husband was already dead. As held inRepublic of the
Philippines v. Court of Appeals (Tenth Div.), 22 "[w]hether or not the spouse
present acted on a well-founded belief of death of the absent spouse
depends upon the inquiries to be drawn from a great many circumstances
occurring before and after the disappearance of the absent spouse and the
nature and extent of the inquiries made by [the] present spouse."
Strict Standard Approach Is
Consistent with the State's Policy to
Protect and Strengthen Marriage
In the above-cited cases, the Court, fully aware of the possible collusion of
spouses in nullifying their marriage, has consistently applied the "strict
standard" approach. This is to ensure that a petition for declaration of
presumptive death under Article 41 of the Family Code is not used as a tool
to conveniently circumvent the laws. Courts should never allow procedural
shortcuts and should ensure that the stricter standard required by the Family
Code is met. In Republic of the Philippines v. Court of Appeals (Tenth
Div.), 23 we emphasized that:
In view of the summary nature of proceedings under
Article 41 of the Family Code for the declaration of
presumptive death of one's spouse, the degree of due
diligence set by this Honorable Court in the abovementioned cases in locating the whereabouts of a
missing spouse must be strictly complied with.
There have been times when Article 41 of the Family

Code had been resorted to by parties wishing to remarry

knowing fully well that their alleged missing spouses are
alive and well. It is even possible that those who cannot
have their marriages . . . declared null and void under
Article 36 of the Family Code resort to Article 41 of the
Family Code for relief because of the . . . summary
nature of its proceedings.
The application of this stricter standard becomes even more imperative if we
consider the State's policy to protect and strengthen the institution of
marriage. 24 Since marriage serves as the family's foundation 25 and since
it is the state's policy to protect and strengthen the family as a basic social
institution, 26 marriage should not be permitted to be dissolved at the whim
of the parties. In interpreting and applying Article 41, this is the underlying
rationale to uphold the sanctity of marriage. Arroyo, Jr. v. Court of
Appeals 27 reflected this sentiment when we stressed: DHSEcI
[The] protection of the basic social institutions of
marriage and the family in the preservation of which
the State has the 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 state policy:
The State recognizes the sanctity of family life
and shall protect and strengthen the family as a
basic autonomous social institution.
Strict Standard Prescribed under
Article 41 of the Family Code is for
the Present Spouse's Benefit
The requisite judicial declaration of presumptive death of the absent spouse
(and consequently, the application of a stringent standard for its issuance) is
also for the present spouse's benefit. It is intended to protect him/her from a
criminal prosecution of bigamy under Article 349 of the Revised Penal Code
which might come into play if he/she would prematurely remarry sans the
court's declaration.

Upon the issuance of the decision declaring his/her absent spouse

presumptively dead, the present spouse's good faith in contracting a second
marriage is effectively established. The decision of the competent court
constitutes sufficient proof of his/her good faith and his/her criminal intent in
case of remarriage is effectively negated.28 Thus, for purposes of
remarriage, it is necessary to strictly comply with the stringent standard and
have the absent spouse judicially declared presumptively dead.
Final Word
As a final word, it has not escaped this Court's attention that the strict
standard required in petitions for declaration of presumptive death has not
been fully observed by the lower courts. We need only to cite the instances
when this Court, on review, has consistently ruled on the sanctity of marriage
and reiterated that anything less than the use of the strict standard
necessitates a denial. To rectify this situation, lower courts are now expressly
put on notice of the strict standard this Court requires in cases under Article
41 of the Family Code.
WHEREFORE, in view of the foregoing, the assailed decision dated August
27, 2008 of the Court of Appeals, which affirmed the order dated December
15, 2006 of the Regional Trial Court, Branch 25, Koronadal City, South
Cotabato,
declaring
Jerry
F. Cantor presumptively
dead
is
hereby REVERSED and SET ASIDE.
SO ORDERED.
Sereno, C.J., Carpio, Leonardo de-Castro, Peralta, Bersamin, Del Castillo,
Villarama, Jr., Perez, Reyes and Perlas-Bernabe, JJ., concur.
Velasco, Jr., J., please see concurring opinion.
Abad, J., I join the dissenting opinion of Justice M. M. V. F. Leonen.
Mendoza, J., I join J. Leonen in his position.
Leonen, J., see dissenting opinion.

Separate Opinions
VELASCO, JR., J., concurring:
I vote for the granting of the petition.
The facts of this case are simple. Sometime in January 1998, Jerry
F. Cantor (Jerry) left his wife, Maria Fe Espinosa Cantor (Maria Fe), after a
violent quarrel. Since then, Maria had not seen or heard from him.
After more than four (4) years of not seeing or hearing from Jerry, Maria Fe
filed a petition for the declaration of presumptive death of her husband with
the Regional Trial Court, Branch 25, Koronadal City, South Cotabato (RTC).
In sum, Maria Fe alleged that she conducted a diligent search for her
husband and exerted earnest efforts to find him. She allegedly inquired from
her mother-in-law, brothers-in-law, sisters-in-law, neighbors, and friends but
no one could tell her where Jerry was. Whenever she went to a hospital, she
made it a point to look through the patients' directory, hoping to find Jerry. On
the basis of the foregoing, Maria Fe claimed that she had a well-founded
belief that her husband, Jerry, was already dead.
The RTC granted her petition and thus declared Jerry as presumptively dead
pursuant to Article 41 of the Family Code. The Court of Appeals affirmed in
toto the RTC Decision and held that there had been no grave abuse of
discretion on the part of the RTC in having declared Jerry presumptively
dead. Dissatisfied with the ruling of the Court of Appeals (CA), the Office of
the Solicitor General (OSG) filed the present Petition for Review
on Certiorari under Rule 45 of the Rules of Civil Procedure arguing that
Maria Fe did not have a well-founded belief that Jerry was dead. EcHIDT
I fully agree that whether or not one has a "well-founded belief" that his or
her spouse is dead depends on the unique circumstances of each case and
that there is no set standard or procedure in determining the same. It is my
opinion that Maria Fe failed to conduct a search with such diligence as to
give rise to a "well-founded belief" that her husband is dead. Further, the
circumstances of Jerry's departure and Maria Fe's behavior after he left
make it difficult to consider her belief a well-founded one.

To reiterate, Maria Fe's alleged "well-founded" belief arose when: (1) Jerry's
relatives and friends could not give her any information on his whereabouts;
and (2) she did not find Jerry's name in the patients' directory whenever she
went to a hospital. To my mind, Maria Fe's reliance on these alone makes
her belief weak and flimsy rather than "well-founded."
Further, it appears that Maria Fe did not actively look for her husband in
hospitals and that she searched for Jerry's name in these hospitals' list of
patients merely as an afterthought. Moreover, it may be sensed from the
given facts that her search was not intentional or planned. This may be noted
from the fact that whenever Maria Fe went to a hospital, she made it a point
to look through the patients' directory, hoping to find Jerry. Verily, it is as if
she searched the patient's directory only when she was in a hospital by
coincidence.
Maria Fe's search for Jerry was far from diligent. At the very least, Maria Fe
should have looked for Jerry in the places he frequented. Moreover, she
should have sought the assistance of the barangay or the police in searching
for her husband, like what could be reasonably expected of any person with
a missing spouse or loved one. These very basic things, she did not do. It
may have been advantageous, too, if Maria Fe approached the media for
help or posted photos of Jerry in public places with requests for information
on his whereabouts. While I agree that We cannot ask the impossible from a
spouse who was abandoned, it is not too much to expect the foregoing
actions from someone who has lost a spouse.
This Court has been consistent in its strict application of Article 41 of
the Family Code. This is clear in the cases cited in the ponencia where the
Court, notwithstanding the evidence on the efforts of the present spouse to
search for the absent spouse, still found that the present spouse's search
was not diligent enough and that the said spouse failed to prove that he or
she had a well-founded belief that the absent spouse was already dead. I
would like to share my observation that compared to Maria Fe, the present
spouses in the said cases exerted similar, or if not, even more effort in their
searches, and presented similar evidence to prove the same. Yet, the Court
found their efforts and evidence wanting.

For instance, in Republic v. Court of Appeals and Alegro, 1 respondent

Alegro testified that when his wife Lea went missing, he asked Lea's parents
as well as their friends if they knew where she was. He stated that he went to
Manila to search for her among her friends and would even look for her in
malls. Alegro reported Lea's disappearance to the local police station and
the National Bureau of Investigation. Despite these efforts, this Court held
that Alegro failed to prove that he had a well-founded belief, before he filed
his petition in the RTC, that his spouse was already dead. The Court
explained:
In this case, the respondent failed to present a witness
other than Barangay Captain Juan Magat. The
respondent even failed to present Janeth Bautista or
Nelson Abaenza or any other person from whom he
allegedly made inquiries about Lea to corroborate his
testimony. On the other hand, the respondent admitted
that when he returned to the house of his parents-in-law
on February 14, 1995, his father-in-law told him that Lea
had just been there but that she left without
notice. HcTSDa

The respondent declared that Lea left their abode on

February 7, 1995 after he chided her for coming home
late and for being always out of their house, and told her
that it would be better for her to go home to her parents
if she enjoyed the life of a single person. Lea, thus, left
their conjugal abode and never returned. Neither did she
communicate with the respondent after leaving the
conjugal abode because of her resentment to the
chastisement she received from him barely a month
after their marriage. What is so worrisome is that, the
respondent failed to make inquiries from his parents-inlaw regarding Lea's whereabouts before filing his
petition in the RTC. It could have enhanced the
credibility of the respondent had he made inquiries from
his parents-in-law about Lea's whereabouts considering
that Lea's father was the owner of Radio DYMS.
The respondent did report and seek the help of the local
police authorities and the NBI to locate Lea, but it was
only an afterthought. He did so only after the OSG filed
its notice to dismiss his petition in the RTC. 2
Similarly, in Republic v. Nolasco, 3 this Court ruled in favor of
the Republic and agreed with the position of the OSG that the respondent
therein failed to establish that he had a well-founded belief that his absent
wife was dead. In this case, Nolasco, who was a seaman, went back home
to Antique upon learning that his wife left their conjugal abode. He testified
that no one among their friends could tell him where his wife was. He
claimed that his efforts to look for her whenever his ship docked in England
proved fruitless and also stated that all the letters he had sent to his missing
spouse at an address in Liverpool, England, the address of the bar where
they met, were all returned to him. This Court believed that Nolasco failed to
conduct a search for his missing wife with such diligence as to give rise to a
"well-founded belief" that she is dead. In the said case, it was held:
In the case at bar, the Court considers that the
investigation allegedly conducted by respondent in his

attempt to ascertain Janet Monica Parker's whereabouts

is too sketchy to form the basis of a reasonable or wellfounded belief that she was already dead. When he
arrived in San Jose, Antique after learning of Janet
Monica's departure, instead of seeking the help of local
authorities or of the British Embassy, he secured
another seaman's contract and went to London, a vast
city of many millions of inhabitants, to look for her there.
"Q: After arriving here in San Jose, Antique, did you
exert efforts to inquire the whereabouts of your
wife:
A: Yes, Sir.
Court:
How did you do that?
A: I secured another contract with the ship and we had
a trip to London and I went to London to look
for her I could not find her (sic)."
Respondent's testimony, however, showed that he
confused London for Liverpool and this casts doubt on
his supposed efforts to locate his wife in England. The
Court of Appeals' justification of the mistake, to wit:
".
.
.
Well,
while
the
cognoscente (sic) would
readily
know the geographical difference
between London and Liverpool, for
a humble seaman like Gregorio the
two places could mean one
place in England, the port where his
ship docked and where he found
Janet. Our own provincial folks,
every time they leave home to visit

relatives in Pasay City, Kalookan

City,
or
Paraaque,
would
announce to friends and relatives,
'We're going to Manila.' This
apparent error in naming of places
of destination does not appear to be
fatal,"
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, are around three hundred fifty
(350) kilometers apart. We do not consider that
walking into a major city like Liverpool or London with
a simple hope of somehow bumping into one
particular person there which is in effect what
Nolasco says he did can be regarded as a
reasonably diligent search.
The Court also views respondent's claim that Janet
Monica declined to give any information as to her
personal background even after she had married
respondent too convenient an excuse to justify his failure
to locate her. The same can be said of the loss of the
alleged letters respondent had sent to his wife which
respondent claims were all returned to him. Respondent
said he had lost these returned letters, under
unspecified circumstances. aSTcCE
Neither can this Court give much credence to
respondent's bare assertion that he had inquired from
their friends of her whereabouts, considering that
respondent did not identify those friends in his
testimony. The Court of Appeals ruled that since the
prosecutor failed to rebut this evidence during trial, it is
good evidence. But this kind of evidence cannot, by its
nature, be rebutted. In any case, admissibility is not

synonymous with credibility. As noted before, there are

serious doubts to respondent's credibility. Moreover,
even if admitted as evidence, said testimony merely
tended to show that the missing spouse had chosen not
to communicate with their common acquaintances, and
not that she was dead.
Also, in Republic v. Granada, 4 while the Court denied the petition of the
OSG on procedural grounds and consequently upheld the declaration of
presumptive death of the missing husband, this Court agreed with the OSG's
assertion that the respondent therein was not diligent in her search for her
husband when she, just like Maria Fe in this case, merely inquired about the
whereabouts of his spouse from the latter's relatives and failed to seek
information and assistance from government agencies and the mass media.
The Court held:
Applying the foregoing standards to the present case,
petitioner points out that respondent Yolanda did not
initiate a diligent search to locate her absent husband.
While her brother Diosdado Cadacio testified to having
inquired about the whereabouts of Cyrus from the
latter's relatives, these relatives were not presented to
corroborate Diosdado's testimony. In short, respondent
was allegedly not diligent in her search for her husband.
Petitioner argues that if she were, she would have
sought information from the Taiwanese Consular Office
or assistance from other government agencies in Taiwan
or the Philippines. She could have also utilized mass
media for this end, but she did not. Worse, she failed to
explain these omissions.
The Republic's arguments are well-taken. Nevertheless,
we are constrained to deny the Petition.
The RTC ruling on the issue of whether respondent was
able to prove her "well-founded belief" that her absent
spouse was already dead prior to her filing of the

Petition to declare him presumptively dead is already

final and can no longer be modified or reversed. Indeed,
"[n]othing is more settled in law than that when a
judgment becomes final and executory, it becomes
immutable and unalterable. The same may no longer be
modified in any respect, even if the modification is
meant to correct what is perceived to be an erroneous
conclusion of fact or law." 5
Were it not for the finality of the RTC ruling, the declaration of presumptive
death should have been recalled and set aside for utter lack of factual basis.
It is the policy of the State to protect and preserve marriage. Courts should
be ever mindful of this policy and, hence, must exercise prudence in
evaluating petitions for declaration of presumptive death of an absent
spouse. Otherwise, spouses may easily circumvent the policy of the laws on
marriage by simply agreeing that one of them leave the conjugal abode and
never return again.
LEONEN, J., dissenting:
"Love
cannot
endure
indifferenc
e. It needs
to be
wanted.
Like a
lamp it
needs to
be fed out
of the oil of
another's
heart or its
flames
burn low."

Henry
Ward
Beecher
I dissent. TEHIaA
A wife, abandoned with impunity, also deserves to be happy.
The Case
Through this Rule 45 petition for review on certiorari, the Office of the
Solicitor General for the Republic of the Philippines prays that the
decision 1 of the Court of Appeals be reversed and set aside and that a new
judgment be entered annulling and setting aside the order 2 of the Regional
Trial Court, Branch 25, Koronadal City, South Cotabato.
On May 21, 2002, Maria Fe Espinosa Cantor filed a petition 3 for the
declaration of presumptive death of her husband, Jerry F. Cantor. 4 She
claimed that she had a well-founded belief that her husband was already
dead since four (4) years had lapsed without Jerry making his presence
known to her.
Trial began after the Regional Trial Court found Maria Fe's petition sufficient
in form and substance.
According to their Certificate of Marriage, 5 Maria Fe and Jerry were married
on September 20, 1997 at the Christ the King Cathedral in Koronadal City,
South Cotabato. They lived together in their conjugal dwelling in Agan
Homes, Koronadal City, South Cotabato. 6
In her petition, Maria Fe alleges that sometime in January 1998, she and
Jerry had a violent quarrel in their house. During the trial, she admitted that
the quarrel had to do with her not being able to reach her "climax" whenever
she would have sexual intercourse with Jerry. Maria Fe emphasized that she
even suggested to him that he consult a doctor, but Jerry brushed aside this
suggestion. She also said that during the quarrel, Jerry had expressed
animosity toward her father, saying "I will not respect that old man outside." 7

Jerry left after their quarrel. 8 Since then, Maria Fe had not seen or heard
from him. On May 21, 2002 after more than four (4) years without word from
Jerry, Maria Fe filed her petition with the Regional Trial Court.
Maria Fe exerted "earnest efforts . . . to locate the whereabouts or actual
address of [Jerry]." 9 She inquired from her mother-in-law, brothers-in-law,
sisters-in-law, neighbors, and friends, but no one could tell her where Jerry
had gone. 10 Whenever she went to a hospital, she would check the
patients' directory, hoping to find Jerry.11
On December 15, 2006, the Regional Trial Court issued an order granting
her petition declaring Jerry presumptively dead. The Regional Trial Court
agreed that she had a well-founded belief that Jerry was dead. It declared
that Jerry had not been heard from and his fate uncertain and whereabouts
unknown for more than four (4) years at the time Maria Fe's petition was
filed. When the Regional Trial Court issued its order, Jerry had been absent
for eight (8) years. TEDAHI
The fallo of the Regional Trial Court's order 12 reads:
WHEREFORE, the Court hereby declares, as it hereby
declared [sic] that
respondent
Jerry
F. Cantor is
presumptively dead pursuant to Article 41 of the Family
Code of the Philippines without prejudice to the effect of
the reappearance of the absent spouse Jerry
F. Cantor. 13
Not satisfied with the Regional Trial Court's order, the Republic of the
Philippines through the Office of the Solicitor General filed a petition
for certiorari with the Court of Appeals.
In a decision dated August 27, 2008, the Court of Appeals affirmed in
toto the Regional Trial Court's order dated December 15, 2006. The Court of
Appeals held that there was no grave abuse of discretion on the part of the
Regional Trial Court in having declared Jerry presumptively dead. The Court
of Appeals also emphasized "that by express mandate of Article 247 of
the Family Code, all judgments rendered in summary judicial proceedings in

Family Law are 'immediately final and executory' upon notice to the parties;
hence, no longer appealable." 14
Still dissatisfied with the ruling of the Court of Appeals, the Office of the
Solicitor General filed the present petition for review on certiorari under Rule
45 of the Rules of Civil Procedure.
The Office of the Solicitor General argued that a petition for certiorari lies to
challenge decisions, judgments or final orders of trial courts in petitions for
the declaration of presumptive death of a missing or absent spouse. The
Office of the Solicitor General agreed that under Article 247 of the Family
Code, decisions and final orders of trial courts in petitions for the declaration
of the presumptive death of a missing or absent spouse are immediately final
and executory, and therefore, cannot be appealed. However, the Office of the
Solicitor General disagreed with the assertion that judgments or decisions in
these cases can no longer be reviewed by the higher courts. It maintained
that even though judgments or final orders in summary judicial proceedings
such as presumptive death cases are no longer appealable, they may still be
reviewed by the Court of Appeals, and, ultimately, by this court. 15
The Office of the Solicitor General pointed out that "appeal"
and "certiorari" are not synonymous remedies. By filing a petition
for certiorari before the Court of Appeals, it could not be considered to have
"appealed" the challenged order of the Regional Trial Court. A petition
for certiorari under Rule 65 is not, in its strict sense, an appeal. It is an
original action and a mode of review under which the Court of Appeals may
re-examine the challenged order to determine whether it was rendered in
accordance with law and established jurisprudence. Hence, judgments of
trial courts in presumptive death cases are not immutable because such
decisions may be reviewed by higher courts. The only possible recourse of a
losing party in summary judicial proceedings is a petition for certiorari under
Rule 65. 16
The Office of the Solicitor General likewise argued that Maria Fe did not have
a well-founded belief that Jerry was dead. It claimed that she failed to
conduct a diligent search for her missing husband. Its theory was that Jerry
consciously chose not to return to their conjugal home and that he chose not

to communicate with Maria Fe. The Office of the Solicitor General claimed
that it was possible that Jerry did not want to be found and that he chose to
live in a place where even his family and friends could not reach him. From
the perspective of the Office of the Solicitor General, it was Jerry's choice to
disappear; thus, in all likelihood, he was not dead.
The Office of the Solicitor General claimed that Article 41 of the Family
Code requires more than the absence of the missing spouse for him or her to
be declared presumptively dead. There must be events, circumstances, and
reasons sufficient in themselves to at least support the proposition that the
absentee spouse is already dead. Absence per se is not enough.
The Office of the Solicitor General capitalized on the failure of Maria Fe to
give the names of relatives and friends she had approached when she
testified. It asserted that she failed to present them at the witness
stand. 17 Moreover, the Office of the Solicitor General assailed the
description of her husband as "not really healthy" when he left the conjugal
dwelling. It characterized this description as being "too vague to even
support the speculation that Jerry is already dead." 18
On June 26, 2009, Maria Fe filed her comment on the Office of the Solicitor
General's petition. She argued that there was no factual or legal basis for the
Office of the Solicitor General to seek a reversal of the Court of Appeal's
decision. She asserted that the declaration of Jerry's death was in order as it
was in accord or consistent with established facts, as well as with law and
jurisprudence on the matter.
This court is asked to decide on the following issues:
1. Whether certiorari lies to challenge decisions,
judgments or final orders of trial courts in
petitions for the declaration of presumptive
death of a missing person or absent spouse;
and
2. Whether Maria Fe has a well-founded belief that
Jerry is already dead.

Certiorari lies as a remedy to

annul the judgment of a trial
court in summary
proceedings for the
declaration of presumptive
death of an absent spouse
I agree that certiorari lies as a remedy to annul a judgment in proceedings
for the declaration of presumptive death of an absent spouse where grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of
the Regional Trial Court is clearly and convincingly shown.
A petition for the declaration of presumptive death of an absent spouse for
the purpose of contracting a subsequent marriage is a summary proceeding.
Article 41 of theFamily Code is clear on this point:
Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a wellfounded belief that the absent spouse was already
dead. In case of disappearance where there is danger
of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code,an absence
of only two years shall be sufficient.
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 prejudice to the effect of reappearance of the
absent spouse. SIaHDA
Articles 238, 247, and 252 of Title XI of the Family Code (Summary Judicial
Proceedings in the Family Law) provide:

Art. 238. Until modified by the Supreme Court, the

procedural rules provided for in this Title shall apply
as regards separation in fact between husband and
wife, abandonment by one of the other, and incidents
involving parental authority.
Art. 247. The judgment of the court shall be
immediately final and executory.
Art. 252. The rules in Chapter 2 hereof shall also
govern summary proceedings under this Chapter
insofar as they are applicable. (n)
From these provisions, it is clear that a petition for the declaration of
presumptive death of an absent spouse is a summary proceeding; more so,
judgments of a trial court relating to such petitions shall be considered
immediately final and executory.
However, while a trial court's judgment relating to a petition for the
declaration of presumptive death of an absent spouse is considered
immediately final and executory, the Office of the Solicitor General is not
entirely without remedy to assail the propriety of a trial court's judgment.
Where the judgment is attended by grave abuse of discretion amounting to
lack or excess of jurisdiction, the Office of the Solicitor General may file with
the Court of Appeals a petition for certiorari under Rule 65 and have the
judgment annulled. Should the Court of Appeals still render an adverse
decision, the Office of the Solicitor General may then file a petition for review
on certiorariunder Rule 45 with this court. This is what the Office of the
Solicitor General did in this case.
Any doubt on this matter was settled in Republic v. Granada: 19
At any rate, four years after Jomoc, this Court settled the
rule regarding appeal of judgments rendered in
summary proceedings under the Family Code when it
ruled inRepublic v. Tango:

"This case presents an opportunity for us to

settle the rule on appeal of judgments rendered
in summary proceedings under the Family
Code and accordingly, refine our previous
decisions thereon.
Article 238 of the Family Code, under Title XI:
SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY LAW, establishes the rules that govern
summary court proceedings in the Family
Code:
ART. 238. Until modified
by the Supreme Court, the
procedural rules in this
Title shall apply in all
cases provided for in this
Code requiring summary
court proceedings. Such
cases shall be decided in
an expeditious manner
without regard to technical
rules.
In turn, Article 253 of the Family Code specifies
the cases covered by the rules in chapters two
and three of the same title. It states:
ART. 253. The foregoing
rules in Chapters 2 and 3
hereof
shall
likewise
govern
summary
proceedings filed under
Articles 41, 51, 69, 73, 96,
124 and 217, insofar as
they
are
applicable.
(Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the

same title reads:
ART 247. The judgment of
the
court
shall
be
immediately
final
and
executory.
By express provision of law, the judgment of
the court in a summary proceeding shall be
immediately final and executory. As a matter of
course, it follows that no appeal can be had of
the trial court's judgment in a summary
proceeding for the declaration of presumptive
death of an absent spouse under Article 41 of
theFamily Code. It goes without saying,
however, that an aggrieved party may file a
petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction.
Such petition should be filed in the Court of
Appeals in accordance with the Doctrine of
Hierarchy of Courts. To be sure, even if the
Court's original jurisdiction to issue a writ
of certiorari is concurrent with the RTCs and
the Court of Appeals in certain cases, such
concurrence does not sanction an unrestricted
freedom of choice of court forum. From the
decision of the Court of Appeals, the losing
party may then file a petition for review
on certiorari under Rule 45 of the Rules of
Court with the Supreme Court. This is because
the errors which the court may commit in the
exercise of jurisdiction are merely errors of
judgment which are the proper subject of an
appeal."

In sum, under Article 41 of the Family Code, the losing

party in a summary proceeding for the declaration of
presumptive death may file a petition for certiorari with
the CA on the ground that, in rendering judgment
thereon, the trial court committed grave abuse of
discretion amounting to lack of jurisdiction. From the
decision of the CA, the aggrieved party may elevate the
matter to this Court via a petition for review
on certiorari under Rule 45 of the Rules of Court. 20
Strict standards should not be
imposed upon the present
spouse in evaluating his or
her efforts to search for the
absent spouse
However, I disagree with the position that "well-founded belief" should be
interpreted as an imposition of stringent standards in evaluating the efforts
and inquiries made by the present spouse in ascertaining the absent
spouse's status and whereabouts. "Well-founded belief" should be based on
the circumstances of each case. It should not be based on a prior limited
enumeration of what acts indicate a "well-founded belief."
In cases for declaration of presumptive death under Article 41 of the Family
Code, we cannot ask the impossible from a spouse who was abandoned. In
interpreting this provision, we must keep in mind that both spouses are under
many obligations in the Family Code, 21 all of which require their
presence. aASDTE
Article 41 of the Family Code provides:
Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and
void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four
consecutive years and the spouse present has a wellfounded belief that the absent spouse was already
dead. In case of disappearance where there is danger

of death under the circumstances set forth in the

provisions of Article 391 of the Civil Code,an absence
of only two years shall be sufficient.
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 prejudice to the effect of reappearance of the
absent spouse.
From the text of Article 41, there are two substantive requirements and two
procedural requirements for a spouse to be declared presumptively dead for
the purpose of remarriage.
The two substantive requirements are the following: first, the absent spouse
has been missing for four (4) consecutive years or two (2) consecutive years
if the disappearance occurred under circumstances where there is danger of
death per Article 391 of the Civil Code; second, the present spouse has a
well-founded belief that the absent spouse is dead.
The two procedural requirements are the following: first, the present spouse
files a summary proceeding for the declaration of presumptive death of the
absent spouse; second, there is the underlying intent of the present spouse
to remarry.
In this case, it is necessary to interpret what is meant by "well-founded
belief."
We said in Republic of the Philippines v. Court of Appeals and Alegro: 22
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 wellgrounded belief. Cuello Callon writes that "es menester

que su creencia sea 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
their intentions, competence evidence on the ultimate
question of his death.
The belief of the present spouse must be the result of
proper and honest to goodness inquiries and efforts to
ascertain the whereabouts of the absent spouse and
whether the absent spouse is still alive or is already
dead. Whether or not the spouse present acted on a
well-founded belief of death of the absent spouse
depends upon the inquiries to be drawn from a great
many circumstances occurring before and after the
disappearance of the absent spouse and the nature and
extent of the inquiries made by present spouse. 23
Applying its construction of what constitutes a "well-founded belief"
in Republic v. Nolasco, 24 this court reversed the Regional Trial Court and
Court of Appeals decisions which declared an absent spouse presumptively
dead as the present spouse was deemed to have "failed to conduct a search
for his missing wife with such diligence as to give rise to a 'well-founded
belief' that she is dead." 25 In 2005, Republic of the Philippines v. Court of
Appeals and Alegro, 26 which relied heavily on Nolasco, likewise held that
"the respondent failed to prove that he had a well-founded belief . . . that his
spouse . . . was already dead." 27 In the 2012 case of Republic v.
Granada, 28 while this court denied the Office of the Solicitor General's

petition on procedural grounds, this court nevertheless favorably considered

the Office of the Solicitor General's assertions that "respondent was
allegedly not diligent in her search for her husband." 29
Belief is a state of mind and can only be ascertained in reference to a
person's overt acts. In making such an evaluation, one must evaluate a case
on the basis of its own merits cognizant of its unique facts, context, and
other nuances rather than be compelled to satisfy a pre-conceived
determination of what acts are sufficiently indicative of the belief being
ascertained.
A belief is well-founded when a person has reasonable basis for holding on
to such belief. It is to say that such belief is not arbitrary and whimsical. Such
belief must, thus, be evaluated on the basic and uncomplicated standard of
rationality. HAaDTI
In declaring a person presumptively dead, a court is called upon to sustain
a presumption. It is not called upon to conclude on verity or to establish
actuality. In so doing, a court infers despite an acknowledged uncertainty.
Thus, to insist on such demanding and extracting evidence as to practically
require enough proof of a well-founded belief, as the Office of the Solicitor
General suggests, is to insist on an inordinate, intemperate, and non-rational
standard.
Maria Fe testified in court that months after their wedding, she and her
husband had a violent quarrel, and he had left after the fight. She noted the
two (2) causes of the quarrel: first, she could not "climax" every time they
would have sexual intercourse; second, Jerry disrespected her father every
time he would visit them. She likewise stated that she went to see her
mother-in-law, brothers-in-law, sisters-in-law, neighbors, and friends to ask
about her husband's whereabouts. She said that every time she would go to
a hospital, she would check its directory to find out anything about her
husband, but her efforts proved futile.

The Office of the Solicitor General faulted her for "fall[ing] short of the degree
of diligence required for the search of a missing spouse." 30 In effect, the
Office of the Solicitor General insinuated that she should have exerted more
painstaking efforts to ascertain her husband's whereabouts.
The majority agrees with the Office of the Solicitor General. The majority
views Maria Fe's efforts as a mere "passive search" that is short of the
diligent search required to form a well-founded belief that her husband was
already dead. 31
Maria Fe exerted the best efforts to ascertain the location of her husband but
to no avail. She bore the indignity of being left behind. She suffered the
indifference of her husband. Such indifference was not momentary. She
anguished through years of never hearing from him. The absence of a few
days between spouses may be tolerable, required by necessity. The absence
of months may test one's patience. But the absence of years of someone
who made the solemn promise to stand by his partner in sickness and in
health, for richer or poorer, is intolerable. The waiting is as painful to the spirit
as the endless search for a person that probably did not want to be found or
could no longer be found.
To require more from Maria Fe who did what she could, given the resources
available to her, is to assert the oppressiveness of our laws. It is to tell her
that she has to suffer from causes which she cannot understand for more
years to come. It should be in the public interest to assume that Jerry, or any
husband for that matter, as a matter of moral and legal obligation, would get
in touch with Maria Fe even if only to tell her that he is alive.
It behooves this court not to have pre-conceived expectations of a standard
operating procedure for spouses who are abandoned. Instead, it should, with
the public interest in mind and human sensitivity at heart, understand the
domestic situation.
A review of the cases that the Office of the Solicitor General cited reveals
this same conclusion.

Republic of the Philippines v. Court of Appeals and Alegro 32 acknowledges

that "testimonial evidence may suffice to prove the well-founded belief of the
present spouse that the absent spouse is already dead . . . ." 33
In another case cited by the Office of the Solicitor General, Republic v.
Nolasco, 34 which similarly considered the matter of whether respondent
therein was able to establish a well-founded belief of the death of his absent
spouse, this court cited the 1913 case of United States v. Biasbas, 35 finding
it to be "instructive as to degree [sic]of diligence required in searching for a
missing spouse." 36 In Biasbas, defendant Biasbas' defense of a good faith
belief that his wife was already dead was not sustained, and his conviction
for bigamy was affirmed. Speaking on Biasbas' lack of due diligence, this
court said:
While the defendant testified that he had made inquiries
concerning the whereabouts of his wife, he fails to state
of whom he made such inquiries. He did not even write
to the parents of his first wife, who lived in the Province
of Pampanga, for the purpose of securing information
concerning her or her whereabouts. He admits that he
had a suspicion only that his first wife was dead. He
admits that the only basis of his suspicion was the fact
that she had been absent. 37 (Emphasis supplied)
What was involved in Biasbas was a mere suspicion totally bereft of any
other rational basis. Moreover, the defendant himself admitted that all he had
was a mere suspicion.
What is involved in this case is not a mere suspicion. In Biasbas, the
defendant could be faulted for failing to even write the parents of his wife.
Here, Maria Fe testified to her having visited and personally inquired with her
mother-in-law, brothers-in-law, sisters-in-law, neighbors, and friends.
Moreover, Maria Fe repeatedly checked hospital entries to check if her
husband was admitted or otherwise was pronounced deceased.
While it may be true that it would have been ideal for Maria Fe to have
exerted more exceptional efforts in locating her husband, the hypothetical

issue of what else she could have done or ought to have done should not
diminish the import of her efforts. It is for Maria Fe to resort to the courses of
action permitted to her given her stature and means. We are called upon to
make an appreciation of the reasonable, not of the exceptional. In
adjudicating this case, this court must ground itself on what is real, not dwell
on a projected ideal.
In the case of Maria Fe, she did what, in her circumstances, are to be
considered as an efficient search. Again, she got in touch with her husband's
relatives and searched hospitals. More importantly, she waited for more than
four (4) long years for her husband to get in touch with her.
Also, the insistence on the need for Maria Fe to ascertain the whereabouts of
her deserting husband undermines the significance and weight of her
husband's own duty. In the normal course of things, a spouse is well in a
position to expect that the other spouse will return to their common dwelling.
Article 68 of the Family Code obliges the husband and the wife "to live
together, observe mutual love, respect and fidelity, and render mutual help
and support."
The opinions of a recognized authority in civil law, Arturo M. Tolentino, are
particularly enlightening:
Meaning of "Absent" Spouse. The provisions of
this article are of American origin, and must be
construed in the light of American jurisprudence. An
identical provision (except for the period) exists in the
California civil
code (section
61);
California
jurisprudence should, therefore, prove enlightening. It
has been held in that jurisdiction that, as respects the
validity of a husband's subsequent marriage, a
presumption as to the death of his first wife cannot be
predicated upon an absence resulting from his leaving
or deserting her, as it is his duty to keep her advised as
to his whereabouts. The spouse who has been left or
deserted is the one who is considered as the "spouse
present"; such spouse is not required to ascertain the

whereabouts of the deserting spouse, and after the

required number of years of absence of the latter, the
former may validly remarry. 38 (Underscoring supplied)
Precisely, it is a deserting spouse's failure to comply with what is reasonably
expected of him or her and to fulfill the responsibilities that are all but normal
to a spouse which makes reasonable (i.e., well-founded) the belief that
should he or she fail to manifest his or her presence within a statutorily
determined reasonable period, he or she must have been deceased. The law
is of the confidence that spouses will in fact "live together, observe mutual
love, respect and fidelity, and render mutual help and support" 39 such that it
is not the business of the law to assume any other circumstance than that a
spouse is deceased in case he or she becomes absent.
It is unfortunate that the majority fails to appreciate Maria Fe's predicament
and instead places upon her the burden to prove good faith in her
painstaking efforts.
To be present in any human relationship especially that of marriage is a
complex affair. There are interests to be compromised for each other,
temperaments to be adjusted, evolving personalities to be understood in the
crucible of common experiences. The moments of bliss are paid for by the
many moments of inevitable discomfort as couples adjust their many
standpoints, attitudes, and values for each other. It is a journey that takes
time and in that time, presence.
This case does not present that kind of complexity. It is simple enough. Maria
Fe was left behind. She looked for Jerry, in good faith. Jerry could not be
found. He did not leave word. He did not make the slightest effort to get in
touch with Maria Fe. His absence did not make the difficult compromises
possible. There were no adjustments in their temperaments, no opportunities
to further understand each other, no journey together. His absence was
palpable: not moments, not days, not months, but years. Maria Fe deserves
more. The law, in Article 41, allows her succor. DIESHT
Given the circumstances, Maria Fe acted adequately. Her actions were
sufficient to form the well-founded belief that her husband passed away. It

was proper that he be declared presumptively dead. In the far possibility that
he reappears and is not dead, the law provides remedies for him. In the
meantime, the Court of Appeals committed no reversible error in affirming
the Regional Trial Court's declaration.
WHEREFORE, I vote to DENY the petition.

||| (Republic v. Cantor, G.R. No. 184621, [December 10, 2013])