III.

Dilemma 4: Declaration of Presumptive Death for Purposes of Remarriage Three years later, on March 2001, Manuel went on a business trip. The plane on which he boarded crashed into the Pacific Ocean, with few survivors and many passengers unaccounted for. Despite efforts to locate Manuels body, he was never found. Wendy was devastated. She felt in her heart that Manuel was truly dead.

About a year and a half passed since the plane crash, Wendy met another man, Omar. They fell in love, and decided to marry on June 2003. But in the months of January and February 2003, Wendy received information from three different sources (see Appendixes E, F, G) indicating that Manuel may be alive, and is living in Hong Kong. Despite efforts to verify, there was no confirmation from the Hong Kong authorities. Wendy informs Louis that she has broken off her engagement to Omar and asks Louis to help her locate Manuel. Louis feels guilty about Wendy being so concerned about Manuel, whom he considered undeserving of her love. Not wanting to see Wendy more depressed and anguished, he finally tells Wendy that Ben is the child of Manuel with Cora. Wendy was shocked and furious at both Manuel and Louis. To gain back Wendys trust, Louis suggests that she should disregard any information about Manuel since these were all hearsay. Thus, he says, having received no news that Manuel may be alive, she can secure a declaration of presumptive death in a summary proceeding before her

June wedding. He adds that he would do this without compensation as proof of his friendship and remorse. He tells her of his uncle who is a family court judge and assures her that their case will be raffled to his court.

For Class Discussion Faculty Guide a. Did Louis violate his lawyer-client confidentiality when he told Wendy that Ben was Manuels child? I. Consider the discussion in Part II (c), (e) [whether there exists a lawyer-client relationship or not] II. Consider the following: i. Code of Professional Responsibility, Canons 21, 21.01, 21.02 ii. Rules of Court, Rules 138, section 20 (e) iii. Revised Penal Code, Article 209 b. Comment on the correctness, legal and moral, of his advice on securing a declaration of presumptive death of Manuel. Is unconfirmed information enough to destroy the spouses well-founded belief that the absentee spouse is dead? I. See Appendixes E, F, G (Information on Manuel after the plane crash) II. Consider the following: i. Civil Code, Articles 390-391 ii. Family Code, Article 41 iii. RP vs CA and Alan Alegro, GR 159614, December 9, 2005 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. 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. iv. RP vs Nolasco, GR 94053, March 17, 1993 United States v. Biasbas, is instructive as to degree of diligence required in searching for a missing spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy. He set-up the defense of a good faith belief that his first wife had already died. The Court held that defendant had not exercised due diligence to ascertain the whereabouts of his first wife, noting that: While the defendant testified that he had made inquiries concerning thewhereabouts 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 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. . . . In the case at bar, the Court consider 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 well-founded 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. c. Comment on the ethical questions involved in Louis planned legal strategy.

I. Consider the following: i. On disregarding unconfirmed information about Manuel 1) Code of Professional Responsibility, Canons 1, 1.01, 1.02 ii. On the insinuation about influence on the family court judge 1) Code of Professional Responsibility, Canons 15.06, 15.07

III. Dilemma 4: Declaration of Presumptive Death for Purposes of Remarriage a. Did Louis violate his lawyer-client confidentiality when he divulged to Wendy that Ben was Manuels child? b. Comment on the correctness, legal and moral, of his advice on securing a declaration of presumptive death of Manuel. i. Is unconfirmed information enough to destroy the spouses well-founded belief that the absentee spouse is dead? c. Comment on the ethical questions involved in Louis planned legal strategy? (pertinent provisions of the Civil Code, the Family Code, Code of Professional Responsibility)