Summary proceeding for the declaration of presumptive death of absentee spouse

"xxx.

Xxx Article 41 of the Family Code of the Philippines xxx:

"Article 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 well-founded belief that the absent spouse was already dead. xxx For the purpose of contracting a 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."

Xxx the spouse must have been absent for four consecutive years and that the present spouse must likewise prove that he/she has a well-founded belief that the absentee is already dead. In the case of Republic of the Philippines vs. Ludyson C. Catubag (G.R. 210580, April 18, 2018), the Supreme Court, through Honorable former Associate Justice Andres Reyes Jr., elucidated that:

"Prevailing jurisprudence has time and again pointed out four (4) requisites under Article 41 of the Family Code that must be complied with for the declaration of presumptive death to prosper: first, the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391 of the Civil Code. Second, the present spouse wishes to remarry. Third, the present spouse has a well-founded belief that the absentee is dead. Fourth, the present spouse files for a summary proceeding for the declaration of presumptive death of the absentee. In seeking a declaration of presumptive death, it is the present spouse who has the burden of proving that all the requisites under Article 41 of the Family Code are present. In the instant case, since it is the private respondent who asserts the affirmative of the issue, then it is his duty to substantiate the same. He who alleges a fact has the burden of proving it and mere allegations will not suffice. (Emphasis supplied)

Xxx."

https://www.manilatimes.net/2021/08/30/opinion/columns/presumptive-death/1812832