The Family Code provision prescribes a “well-founded belief” that the absentee is already dead before a petition for declaration of presumptive death can be granted.

See - http://sc.judiciary.gov.ph/jurisprudence/2012/june2012/187512.htm

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In Nolasco, petitioner Republic sought the reversal of the CA’s affirmation of the RTC’s grant of respondent’s Petition for Declaration of Presumptive Death of his absent spouse, a British subject who left their home in the Philippines soon after giving birth to their son while respondent was on board a vessel working as a seafarer. Petitioner Republic sought the reversal of the ruling on the ground that respondent was not able to establish his “well-founded belief that the absentee is already dead,” as required by Article 41 of the Family Code. In ruling thereon, this Court recognized that this provision imposes more stringent requirements than does Article 83 of the Civil Code.[13] The Civil Code provision merely requires either that there be no news that the absentee is still alive; or that the absentee is generally considered to be dead and is believed to be so by the spouse present, or is presumed dead under Articles 390 and 391 of the Civil Code. In comparison, the Family Code provision prescribes a “well-founded belief” that the absentee is already dead before a petition for declaration of presumptive death can be granted. As noted by the Court in that case, the four requisites for the declaration of presumptive death under the Family Code are as follows:

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.

In evaluating whether the present spouse has been able to prove the existence of a “well-founded belief” that the absent spouse is already dead, the Court in Nolasco cited United States v. Biasbas,[14]which it found to be instructive as to the diligence required in searching for a missing spouse.

In Biasbas, the Court held that defendant Biasbas failed to exercise due diligence in ascertaining the whereabouts of his first wife, considering his admission that that he only had a suspicion that she was dead, and that the only basis of that suspicion was the fact of her absence.

Similarly, in Republic v. Court of Appeals and Alegro, petitioner Republic sought the reversal of the CA ruling affirming the RTC’s grant of the Petition for Declaration of Presumptive Death of the absent spouse on the ground that the respondent therein had not been able to prove a “well-founded belief” that his spouse was already dead. The Court reversed the CA, granted the Petition, and provided the following criteria for determining the existence of a “well-founded belief” under Article 41 of the Family Code:

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.

The spouse present is, thus, burdened to prove that his spouse has been absent and that he has a well-founded belief that the absent spouse is already dead before the present spouse may contract a subsequent marriage. The law does not define what is meant by a well-grounded belief. Cuello Callon writes that “es menester que su creencia sea 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 [sic] 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. (Footnotes omitted, underscoring supplied.)

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.”[15]

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