Justice Leonen takes the womans side in Republic vs.

Cantor;
presumptive death
REPUBLIC OF THE PHILIPPINES, petitioner, vs. MARIA FE ESPINOSA CANTOR, respondent.| 10 December
2013| J. Brion
Facts
Maria Fe and Jerry were married on 20 September 1997 and lived together in South Cotabato.
In 1998, the couple had a violent quarrel brought about by lack in intimate moments and animosity
towards Maria Fes father.
Jerry left their conjugal dwelling soon after and this was the last time Maria Fe saw him. She has not
seen him since.
More than 4 years from the time of Jerrys disappearance, Maria Fe filed a petition for declaration of
presumptive death before the RTC.
Maria Fe claimed that she had a well-founded belief that Jerry was already dead. She allegedly
inquired from Jerrys relatives as well as her neighbours and friends but to no avail. She also alleged to
check the patients directory whenever she went to the hospital.
RTC Ruling: Petition for Jerrys presumptive death granted.
CA Ruling: CA dismissed Republics petition for certiorari.
Issues: (1) WON 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;
(2) WON Maria Fe had a well-founded belief that Jerry is dead.
Ruling: 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.
Held:
(1) Certiorari as remedy correct
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 well-founded 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.

Art. 247.The judgment of the court shall be immediately final and executory.
Since the judgment is final, it is no longer subject to appeal. Party may nevertheless file petition for
certiorari under Rule 65, Rules of Court to question any abuse of discretion amounting to lack or excess
of jurisdiction that transpired.
(2) Well-founded belief standard not met
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.
The present spouse has the burden of proof to show that all the requisites under Art. 41, Family Code
are present. In terms of declaration of presumptive death under Art. 41, a stricter standard is imposed.
Well-founded belief requires that absentee is already dead before a petition for declaration of
presumptive death can be granted. Mere absence of spouse, 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. There must be a proper and honest-to-goodness inquiries and efforts to ascertain not only the
absent spouses whereabouts but, more importantly, that the absent spouse is still alive or is already
dead.
Well-founded belief depends upon the circumstances of each case. 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).
Maria Fes well-founded belief was anchored on her alleged earnest efforts to locate Jerry, which
consisted of the following:
(1)She made inquiries about Jerrys 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.
However, the Court found that Maria Fes efforts fell short of the stringent standard; she only engaged
in a passive search, not a conduct a diligent search as required by the standards established in
jurisprudence (Republic v. Granada, Republic v. Nolasco)

(1) She did not actively look for her missing husband. She did not purposely undertake diligent search
for
her
husband
as
her
hospital
visits
were
not
planned.
(2) She did not report Jerrys absence to the police nor did she ask for their help in looking for him.
(3)
She
did
not
present
as
witnesses
Jerrys
relatives
as
witnesses.
(4) No corroborative evidence to support her claim that she conducted a diligent search.
SEPARATE OPINIONS
J. Leonen, dissenting:
(1) Agrees that certiorari lies as remedy.
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.
(2) Strict standards should NOT be imposed upon present spouse in evaluating their efforts to search for
the absent spouse.
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.
From the text of Art. 41, Family Code, there are two substantive requirements and two procedural
requirements for a spouse to be declared presumptively dead for the purpose of remarriage:
SUBSTANTIVE
(1) Absent spouse 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;
(2) Present spouse has well-founded belief absent spouse is dead.
PROCEDURAL
(1) Present spouse files a summary proceeding for the declaration of presumptive death of the absent
spouse;
(2) There is the underlying intent of the present spouse to remarry.
What is well-founded belief?

Belief is a state of mind and can only be ascertained in reference to a persons overt acts. In making
such an evaluation, one must evaluate a case on the basis of its own merits.
A belief is well-founded when a person has reasonable basis for holding on to such belief.
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.
The court should not have pre-conceived expectations of a standard operating procedure for
abandoned spouses. Instead, it should, with the public interest in mind and human sensitivity at heart,
understand the domestic situation.
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 husbands 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 husbands 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 husbands 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.
Precisely, it is a deserting spouses 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., wellfounded) 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.

Supreme Court Decisions: Declaration of Presumptive death

Supreme Court Decisions:

Declaration of Presumptive death (Republic of the Phils., vs. The Honorable Court of Appeals, et
al., December 9, 2005
SECOND DIVISION: G.R. No. 159614
REPUBLIC OF THE PHILIP-PINES,
Petitioner,
- versus THE HONORABLE COURT OF APPEALS (TENTH DIVISION) and ALAN B. ALEGRO,
Respondents.
Promulgated: December 9, 2005
CALLEJO, SR., J.:
On March 29, 2001, Alan B. Alegro filed a petition in the Regional Trial Court (RTC) of Catbalogan,
Samar, Branch 27, for the declaration of presumptive death of his wife, Rosalia (Lea) A. Julaton.
In an Order1 dated April 16, 2001, the court set the petition for hearing on May 30, 2001 at 8:30 a.m. and
directed that a copy of the said order be published once a week for three (3) consecutive weeks in the
Samar Reporter, a newspaper of general circulation in the Province of Samar, and that a copy be posted in
the courts bulletin board for at least three weeks before the next scheduled hearing.
The court also directed that copies of the order be served on the Solicitor General, the Provincial
Prosecutor of Samar, and Alan, through counsel, and that copies be sent to Lea by registered mail. Alan
complied with all the foregoing jurisdictional requirements.
2 On May 28, 2001, the Republic of the Philippines, through the Office of the Solicitor General (OSG),
filed a Motion to Dismiss
3 the petition, which was, however, denied by the court for failure to comply with Rule 15 of the Rules of
Court.
4 At the hearing, Alan adduced evidence that he and Lea were married on January 20, 1995 in Catbalogan,
Samar.
5 He testified that, on February 6, 1995, Lea arrived home late in the evening and he berated her for being
always out of their house. He told her that if she enjoyed the life of a single person, it would be better for
her to go back to her parents.
6 Lea did not reply. Alan narrated that, when he reported for work the following day, Lea was still in the
house, but when he arrived home later in the day, Lea was nowhere to be found.
7 Alan thought that Lea merely went to her parents house in Bliss, Sto. Nio, Catbalogan, Samar.
8 However, Lea did not return to their house anymore.
Alan further testified that, on February 14, 1995, after his work, he went to the house of Leas parents to
see if she was there, but he was told that she was not there. He also went to the house of Leas friend,

Janeth Bautista, at Barangay Canlapwas, but he was informed by Janettes brother-in-law, Nelson
Abaenza, that Janeth had left for Manila.
9 When Alan went back to the house of his parents-in-law, he learned from his father-in-law that Lea had
been to their house but that she left without notice.
10 Alan sought the help of Barangay Captain Juan Magat, who promised to help him locate his wife. He
also inquired from his friends of Leas whereabouts but to no avail.
11 Sometime in June 1995, he decided to go to Manila to look for Lea, but his mother asked him to leave
after the town fiesta of Catbalogan, hoping that Lea may come home for the fiesta. Alan agreed.
12 However, Lea did not show up. Alan then left for Manila on August 27, 1995. He went to a house in
Navotas where Janeth, Leas friend, was staying. When asked where Lea was, Janeth told him that she
had not seen her.
13 He failed to find out Leas whereabouts despite his repeated talks with Janeth. Alan decided to work as
a part-time taxi driver. On his free time, he would look for Lea in the malls but still to no avail. He
returned to Catbalogan in 1997 and again looked for his wife but failed.
14 On June 20, 2001, Alan reported Leas disappearance to the local police station.
15 The police authorities issued an Alarm Notice on July 4, 2001.
16 Alan also reported Leas disappearance to the National Bureau of Investigation (NBI) on July 9, 2001.
17 Barangay Captain Juan Magat corroborated the testimony of Alan. He declared that on February 14,
1995, at 2:00 p.m., Alan inquired from him if Lea passed by his house and he told Alan that she did not.
Alan also told him that Lea had disappeared. He had not seen Lea in the barangay ever since.
18 Leas father, who was his compadre and the owner of Radio DYMS, told him that he did not know
where Lea was.
19 After Alan rested his case, neither the Office of the Provincial Prosecutor nor the Solicitor General
adduced evidence in opposition to the petition.
On January 8, 2002, the court rendered judgment granting the petition. The fallo of the decision
reads:
WHEREFORE, and in view of all the foregoing, petitioners absent spouse ROSALIA JULATON is hereby
declared PRESUMPTIVELY DEAD for the purpose of the petitioners subsequent marriage under Article
41 of the Family Code of the Philippines, without prejudice to the effect of reappearance of the said absent
spouse.
SO ORDERED.
20 The OSG appealed the decision to the Court of Appeals (CA) which rendered judgment on August 4,
2003, affirming the decision of the RTC.
21 The CA cited the ruling of this Court in Republic v. Nolasco.
22 The OSG filed a petition for review on certiorari of the CAs decision alleging that respondent Alan B.
Alegro failed to prove that he had a well-founded belief that Lea was already dead.
23 It averred that the respondent failed to exercise reasonable and diligent efforts to locate his wife. The
respondent even admitted that Leas father told him on February 14, 1995 that Lea had been to their
house but left without notice. The OSG pointed out that the respondent reported his wifes disappearance

to the local police and also to the NBI only after the petitioner filed a motion to dismiss the petition. The
petitioner avers that, as gleaned from the evidence, the respondent did not really want to find and locate
Lea.
Finally, the petitioner averred: In view of the summary nature of proceedings under Article 41 of the
Family Code for the declaration of presumptive death of ones spouse, the degree of due diligence set by
this Honorable Court in the above-mentioned 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 x x x declared null and void under Article
36 of the Family Code resort to Article 41 of the Family Code for relief because of the x x x summary
nature of its proceedings.
It is the policy of the State to protect and strengthen the family as a basic social institution. Marriage is the
foundation of the family.
Since marriage is an inviolable social institution that the 1987 Constitution seeks to protect from
dissolution at the whim of the parties. For respondents failure to prove that he had a well-founded belief
that his wife is already dead and that he exerted the required amount of diligence in searching for his
missing wife, the petition for declaration of presumptive death should have been denied by the trial court
and the Honorable Court of Appeals.
24 The petition is meritorious.
Article 41 of the Family Code of the Philippines reads:
Art. 41. 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 well-founded belief that the absent spouse was
already dead.
In case of disappearance where there is danger 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.
25 The spouse present is, thus, burdened to prove that his spouse has been absent and that he has a wellfounded 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.
26 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.
27 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.
28 Although testimonial evidence may suffice to prove the well-founded belief of the present spouse that
the absent spouse is already dead, in Republic v. Nolasco,
29 the Court warned against collusion between the parties when they find it impossible to dissolve the
marital bonds through existing legal means.

It is also the maxim that "men readily believe what they wish to be true."
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.
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-in-law regarding Leas
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 Leas whereabouts considering that Leas 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.
In sum, the Court finds and so holds that the respondent failed to prove that he had a well-founded belief,
before he filed his petition in the RTC, that his spouse Rosalia (Lea) Julaton was already dead.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED.

The Decision of the Court of Appeals in CA-G.R. CV No. 73749 is REVERSED and SET ASIDE.
Consequently, the Regional Trial Court of Catbalogan, Samar, Branch 27, is ORDERED to DISMISS the
respondents petition.
SO ORDERED.
Puno, Austria-Martinez, Tinga, and Chico-Nazario, JJ., concur.

**********************************************************

Records, p. 1.
2Exhibits C to H and H-1, folder of exhibits, pp. 10-21.
3Records, pp. 3-6.
4Id. at 9.
5Exhibit A, folder of exhibits, p. 5.
6TSN, 20 September 2001, p. 6.
7Id. at 9.
8Id. at 7.
9TSN, 20 September 2001, p. 12.
10Id. at 16.
11Id. at 13-15.
12Id. at 16.
13Id. at 17-19.
14Id. at 20-21.
15Exhibits I and I-1, folder of exhibits, p. 22.
16Exhibit J, Id. at 23.
17Exhibit K, Id. at 24.
18TSN, November 5, 2001, pp. 4-6.
19Id. at 8.
20Records, pp. 23-24.
21Penned by Associate Justice Portia Alio-Hormachuelos, with Associate Justices Edgardo P. Cruz and
Noel G. Tijam, concurring; rollo, pp. 33-40.
22G.R. No. 94053, March 17, 1993, 220 SCRA 20.
23Rollo, p. 17.
24 Id. at 26-28.
25 Emphases supplied.
26 Derecho Penal, Vol. II, p. 633.
27 Tyrrell v. Prudential Insurance Company of America, 115 A.L.R., 392 (1937), citing In re: Hurlburts
Estate,35 L.R.A. 794 68 Vt.366, 35 A.77.
28 Gall v. Gall, 69 Sickels 109, 21 NE 106 (1889).
29 Supra, note 19.