G.R. No.

210929

July 29, 2015

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
EDNA ORCELINO-VILLANUEVA, Respondent.
DECISION
MENDOZA, J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court, the Office of the
Solicitor General (OSG), on behalf of the Republic of the Philippines, assails the October 18,
2013 Decision1 and the January 8, 2014 Resolution2 of the Court of Appeals (CA), in CA-G.R.
S.P. No. 03768-MIN, which affirmed the October 8, 2009 Judgment3 of the Regional Trial Court,
Branch 10, Malaybalay City, Bukidnon (RTC), in SP Proc. Case No. 3316-09, granting the
petition of respondent Edna Orcelino-Villanueva (Edna) and declaring her husband, Romeo L.
Villanueva (Romeo), as presumptively dead under Article 41 of the Family Code.4
The Antecedents
Edna and Romeo were married on December 21, 1978, in Iligan City.
In 1992, Edna worked as domestichelper in Singapore while her husband worked as a mechanic
in Valencia City, Bukidnon.In 1993, Edna heard the news from her children that Romeo had left
their conjugal home without reason or information as to his whereabouts.
Thereafter, Edna took a leave from work and returned to the country to look for Romeo. She
inquired from her parents-in-law and common friends in Iligan City. Still, she found no leads as
to his whereabouts or existence. She also went to his birthplace in Escalante, Negros Oriental,
and inquired from his relatives.
On August 6, 2009, Edna filed before the RTC a petition5 to declare Romeo presumptively dead
under Article 41 of the Family Code.
During the trial, Edna was presented as the lone witness. In its October 8, 2009 Order,6 the RTC
granted the petition on the basis of her well-founded belief of Romeos death. Hence:
WHEREFORE, premises considered, judgment is hereby rendered declaring Romeo L.
Villanueva to be presumptively dead for all legal intents and purposes in accordance with Article
41 of the Family Code of the Philippines, without prejudice to his reappearance.
SO ORDERED.7

On August 13, 2010, the OSG filed a petition for certiorari under Rule 65 of the Rules of Court
before the CA alleging grave abuse of discretion on the part of the RTC in finding that Edna had
a well-founded belief that Romeo, her absent spouse, was dead. It argued that the conclusions
reached by the RTC were in direct opposition to established jurisprudence, as ruled by the Court
in Republic v. Nolasco8 (Nolasco) and U.S. v. Biasbas.9
On October 18, 2013, the CA dismissed the petition, holding that the RTC acted within its
jurisdiction in issuing the assailed decision having been expressly clothed with the power to
determine the case.10 It also cited Article 247 of the Family Code11 which provided for the final
and immediate executory character of the decision of the RTC, acting as a family court, thus,
rendering the issue of whether or not Edna had sufficiently established a well-founded belief to
warrant the decree of presumptive death of her absent spouse, as moot and academic. On
November 20, 2013, the OSG filed a motion for reconsideration but the CA denied it on January
8, 2014.
Hence, this petition.
ISSUES
I.
WHETHER OR NOT THE CA ERRED IN AFFIRMING THE RTC DECISION DESPITE THE
FACT THAT THE CONCLUSION REACHED BY THE RTC IS CONTRARY TO
PREVAILING JURISPRUDENCE.
II.
WHETHER OR NOT THE CA ERRED IN RULING THAT THE GROUNDS RAISED BY
THE PETITIONER TO ASSAIL THE RTC DECISION ARE MERE ERRORS OF
JUDGMENT.12
The OSG argues that the CA erred in not finding grave abuse of discretion on the part of the RTC
when the latter affirmed the existence of Ednas well-founded belief as to the death of her absent
spouse. It claims that the evidence presented by Edna, which merely consisted of bare and
uncorroborated assertions, never amounted to a diligent and serious search required under
prevailing jurisprudence.
Respondent Edna, through her counsel, invokes the finality, inalterability and immutability of the
RTC decision, which was affirmed by the CA.13
Ruling of the Court

The Court grants the petition.

Article 41 of the Family Code provides that before a judicial declaration of presumptive death
may be granted, the present spouse must prove that he/she has a well-founded belief that the
absentee is dead.14 In this case, Edna failed. The RTC and the CA overlooked Ednas patent
noncompliance with the said requirement.
The well-founded belief in the absentees death requires the present spouse to prove that his/her
belief was the result of diligent and reasonable efforts 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 necessitates exertion of active effort (not a mere passive one). Mere absence of
the spouse (even beyond the period required by law), lack of any news that the absentee spouse
is still alive, mere failure to communicate, or general presumption of absence under the Civil
Code would not suffice.15 The premise is that Article 41 of the Family Code places upon the
present spouse the burden of complying with the 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 spouses whereabouts but, more importantly, whether the
absent spouse is still alive or is already dead.16
This strict standard approach ensures 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 in light
of the States policy to protect and strengthen the institution of marriage. Courts should never
allow procedural shortcuts but instead should see to it that the stricter standard required by the
Family Code is met.17
Accordingly, in a string of cases, this Court has denied petitions for the declaration of
presumptive death on the said basis.
In Republic of the Philippines v. Court of Appeals,18 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 captains aid to locate her;
(3) He went to her friends houses to find her and inquired about her whereabouts among
her 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 claimed "earnest efforts," the Court still ruled against the present spouse. The
Court explained that he failed to present the persons from whom he made inquiries and only
reported his wifes absence after the OSG filed its notice to dismiss his petition in the RTC.
Similarly in Republic v. Granada,19 the Court ruled that the present spouse failed to prove her
"well-founded belief" that her absent spouse was already dead prior to her filing of the petition.
She simply did not exert diligent efforts to locate her husband either in the country or in Taiwan,
where he was known to have worked. Moreover, she did not explain her omissions. In said case,
the Court wrote:
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
the death of the absent spouse depends upon inquiries to be drawn from a great many
circumstances occurring before and after the disappearance of an absent spouse and the nature
and extent of the inquiries made by the present spouse.
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 held that the present spouses methods of investigation were too sketchy to form a
basis that his wife was already dead. It stated 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.
Recently, in Republic v. Cantor20 (Cantor), the Court considered the present spouses efforts to
have fallen short of the "stringent standard" and lacked the degree of diligence required by
jurisprudence as she did not actively look for her missing husband; that she did not report his
absence to the police or seek the aid of the authorities to look for him; that she did not present as
witnesses her missing husbands relatives or their neighbors and friends, who could corroborate
her efforts to locate him; that these persons, from whom she allegedly made inquiries, were not
even named; and that there was no other corroborative evidence to support her claim that she

conducted a diligent search. In the Courts view, the wife merely engaged in a "passive search"
where she relied on uncorroborated inquiries from her in laws, neighbors and friends. She, thus,
failed to conduct a diligent search. Her claimed efforts were insufficient to form a well-founded
belief that her husband was already dead.
In this case, Edna claimed to have done the following to determine the whereabouts and the
status of her husband:
1. She took a vacation/leave of absence from her work and returned to the Philippines to
look for her husband.
2. She inquired from her parents-in-law in Iligan City and from their common friends in
the same city and in Valencia City.
3. She went as far as the birthplace of her husband in Escalante, Negros Oriental, so she
could inquire from her husbands relatives.
Despite her efforts, she averred that she received negative responses from them because none of
them had knowledge of the existence of her husband who had been missing for 15 years.
Applying the standard set forth by the Court in the previously cited cases, particularly Cantor,
Ednas efforts failed to satisfy the required well-founded belief of her absent husbands death.
Her claim of making diligent search and inquiries remained unfounded as it merely consisted of
bare assertions without any corroborative evidence on record. She also failed to present any
person from whom she inquired about the whereabouts of her husband. She did not even present
her children from whom she learned the disappearance of her husband. In fact, she was the lone
witness. Following the basic rule that mere allegation is not evidence and is not equivalent to
proof,21 the Court cannot give credence to her claims that she indeed exerted diligent efforts to
locate her husband.
Moreover, no document was submitted to corroborate the allegation that her husband had been
missing for at least fifteen (15) years already. As the OSG observed, there was not even any
attempt to seek the aid of the authorities at the time her husband disappeared. In Cantor, the
present spouse claimed to have sought the aid of the authorities or, at the very least, reported his
absence to the police.22 Yet, the Court denied her pleas.
Verily, it makes sense to conclude that her efforts were not diligent and serious enough to give
meaning to her well-founded belief that Romeo was already dead. Suffice it to state that her
petition should have been denied at the first instance. The RTC, however, granted it, reasoning
xxx that it was in 1993 when the petitioner while abroad heard the news from her children that
her husband left their conjugal home xxx without informing the children nor communicating

with the herein petitioner as to the reasons why he left their family abode nor giving them any
information as to his whereabouts; that herein petitioner took vacation/leave of absence from her
work and return to the Philippines, in order to look for her husband and made some inquiries
with her parents-in-law in Iligan City, from their common friends in Iligan City and in Valencia
City, and even went as far as the birthplace of her husband, particularly at Escalante, Negros
Oriental, inquiring from her husband's relatives, but she only got negative response from them
since none of them have any knowledge as to the present existence of her husband that since the
year 1993 up to the present, a period of about fifteen [15] years have elapsed, the person and the
body of petitioner's husband could not be found, located nor traced as there is no any information
as to his existence or whereabouts.23
Worse, the CA affirmed the RTC decision when it dismissed the petition for certiorari filed by
the OSG. The CA should have realized the glaring and patent disregard by the RTC of the rulings
in similar situations where petitions for declaration of presumptive death have been denied by
this Court. By declaring Romeo presumptively dead, the CA clearly ignored this Court's
categorical pronouncements.
WHEREFORE, the petition is GRANTED. Accordingly, the October 18, 2013 Decision and the
January 8, 2014 Resolution of the Court of Appeals are hereby REVERSED and SET ASIDE.
The petition of respondent Edna Orcelino-Villanueva to have her husband declared
presumptively dead is DENIED.
SO ORDERED.
G.R. No. 184621, December 10, 2013
REPUBLIC OF THE PHILIPPINES, Petitioner, v. MARIA FE ESPINOSA
CANTOR, Respondent.
DECISION
BRION, J.:
The petition for review on certiorari1 before us assails the decision2 dated August 27, 2008 of the
Court of Appeals (CA) in CAG.R. SP No. 01558MIN which affirmed the order3 dated
December 15, 2006 of the Regional Trial Court (RTC), Branch 25, Koronadal City, South
Cotabato, in SP Proc. Case No. 31325, declaring Jerry F. Cantor, respondent Maria Fe Espinosa
Cantors 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 respondents inability

to reach sexual climax whenever she and Jerry would have intimate moments; and (2) Jerrys
expression of animosity toward the respondents 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 Jerrys disappearance, the
respondent filed before the RTC a petition4 for her husbands declaration of presumptive death,
docketed as SP Proc. Case No. 31325. She claimed that she had a wellfounded belief that Jerry
was already dead. She alleged that she had inquired from her motherinlaw, her brothersin
law, her sistersinlaw, 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.
The Ruling of the RTC
After due proceedings, the RTC issued an order granting the respondents petition and declaring
Jerry presumptively dead. It concluded that the respondent had a wellfounded 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:chanRoblesvirtualLawlibrary
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.5ChanRoblesVirtualawlibrary
The Ruling of the CA
The case reached the CA through a petition for certiorari6 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 petitioners petition, finding no grave abuse of discretion on the RTCs
part, and, accordingly, fully affirmed the latters order, thus:chanRoblesvirtualLawlibrary
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.7ChanRoblesVirtualawlibrary
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 wellfounded belief to justify the
declaration of her husbands presumptive death. It claims that the respondent failed to conduct
the requisite diligent search for her missing husband. Likewise, the petitioner invites this Courts
attention to the attendant circumstances surrounding the case, particularly, the degree of search
conducted and the respondents resultant failure to meet the strict standard under Article 41 of
the Family Code.
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 wellfounded belief that Jerry is already dead.
The Courts Ruling
We grant the petition.
a. On the Issue of the Propriety of Certiorari as a Remedy
Courts Judgment in the Judicial Proceedings for Declaration of Presumptive Death Is Final
and Executory, Hence, Unappealable
The Family Code was explicit that the courts 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:chanRoblesvirtualLawlibrary
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.
Art. 247. The judgment of the court shall be immediately final and executory. [underscores ours]
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 courts 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.
BermudezLorino,9 the right to appeal is not granted to parties because of the express mandate of
Article 247 of the Family Code, to wit:chanRoblesvirtualLawlibrary
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
Republics 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 in Veloria 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 courts 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.
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:chanRoblesvirtualLawlibrary
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 courts 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 Courts 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 petitioners resort to certiorari under Rule 65 of the Rules
of Court to question the RTCs order declaring Jerry presumptively dead was proper.
b. On the Issue of the Existence of WellFounded 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:chanRoblesvirtualLawlibrary
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 wellfounded 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 Presumptive Death Under Article 41 of the Family Code Imposes a Stricter
Standard
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 wellfounded 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 in Republic 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:chanRoblesvirtualLawlibrary
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
is already 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 wellfounded belief which can only be discharged upon a showing of
proper and honesttogoodness 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.15
The Requirement of WellFounded Belief
The law did not define what is meant by wellfounded belief. It depends upon the
circumstances of each particular case. Its determination, so to speak, remains on a casetocase
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 wellfounded 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 inlaws house to look for her;
(2) He sought the barangay captains 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 parttime 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 wifes 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 wellfounded
belief under Article 41 of the Family Code:chanRoblesvirtualLawlibrary
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 wellfounded 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.18ChanRoblesVirtualawlibrary
ii. Republic v. Granada19
Similarly in Granada, the Court ruled that the absent spouse failed to prove her wellfounded
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 spouses 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:chanRoblesvirtualLawlibrary
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 latters relatives, these relatives were not presented to corroborate Diosdados

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. Nolasco21
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 spouses 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 respondents wellfounded belief was anchored on her alleged earnest
efforts to locate Jerry, which consisted of the following:chanRoblesvirtualLawlibrary
(1) She made inquiries about Jerrys whereabouts from her inlaws, 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 Jerrys absence to the police nor did she seek the aid of the authorities
to look for him. While a finding of wellfounded 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 Jerrys 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 spouses bare assertion that he
inquired from his friends about his absent spouses 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 respondents 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 inlaws about
her husbands 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 wellfounded
belief that her husband was already dead. As held in Republic of the Philippines v. Court of
Appeals (Tenth Div.),22[w]hether or not the spouse present acted on a wellfounded 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 States Policy to Protect and Strengthen
Marriage
In the abovecited 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:chanRoblesvirtualLawlibrary
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 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
xxx declared null and voidunder Article 36 of the Family Code resort to Article 41 of the Family
Code for relief because of the xxx summary nature of its proceedings.
The application of this stricter standard becomes even more imperative if we consider the States
policy to protect and strengthen the institution of marriage.24 Since marriage serves as the
familys foundation25 and since it is the states 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 Appeals27 reflected this sentiment when we
stressed:chanRoblesvirtualLawlibrary
[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:chanRoblesvirtualLawlibrary
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 Spouses
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 spouses 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
courts declaration.
Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the
present spouses 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 Courts 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 REVERSEDand SET ASIDE.
SO ORDERED.
G.R. No. 187512

June 13, 2012

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
YOLANDA CADACIO GRANADA, Respondent.
DECISION
SERENO, J.:

This is a Rule 45 Petition seeking the reversal of the Resolutions dated 23 January 20091 and 3
April 20092issued by the Court of Appeals (CA), which affirmed the grant by the Regional Trial
Court (RTC) of the Petition for Declaration of Presumptive Death of the absent spouse of
respondent.
In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met Cyrus Granada (Cyrus) at
Sumida Electric Philippines, an electronics company in Paranaque where both were then
working. The two eventually got married at the Manila City Hall on 3 March 1993. Their
marriage resulted in the birth of their son, Cyborg Dean Cadacio Granada.
Sometime in May 1994, when Sumida Electric Philippines closed down, Cyrus went to Taiwan
to seek employment. Yolanda claimed that from that time, she had not received any
communication from her husband, notwithstanding efforts to locate him. Her brother testified
that he had asked the relatives of Cyrus regarding the latters whereabouts, to no avail.
After nine (9) years of waiting, Yolanda filed a Petition to have Cyrus declared presumptively
dead. The Petition was raffled to Presiding Judge Avelino Demetria of RTC Branch 85, Lipa
City, and was docketed as Sp. Proc. No. 2002-0530.
On 7 February 2005, the RTC rendered a Decision declaring Cyrus as presumptively dead.
On 10 March 2005, petitioner Republic of the Philippines, represented by the Office of the
Solicitor General (OSG), filed a Motion for Reconsideration of this Decision. Petitioner argued
that Yolanda had failed to exert earnest efforts to locate Cyrus and thus failed to prove her wellfounded belief that he was already dead. However, in an Order dated 29 June 2007, the RTC
denied the motion.
Petitioner filed a Notice of Appeal to elevate the case to the CA, presumably under Rule 41,
Section 2(a) of the Rules of Court. Yolanda filed a Motion to Dismiss on the ground that the CA
had no jurisdiction over the appeal. She argued that her Petition for Declaration of Presumptive
Death, based on Article 41 of the Family Code, was a summary judicial proceeding, in which the
judgment is immediately final and executory and, thus, not appealable.
In its 23 January 2009 Resolution, the appellate court granted Yolandas Motion to Dismiss on
the ground of lack of jurisdiction. Citing Republic v. Bermudez-Lorino,3 the CA ruled that a
petition for declaration of presumptive death under Rule 41 of the Family Code is a summary
proceeding. Thus, judgment thereon is immediately final and executory upon notice to the
parties.
Petitioner moved for reconsideration, but its motion was likewise denied by the CA in a
Resolution dated 3 April 2009.4

Hence, the present Rule 45 Petition.

Issues
1. Whether the CA seriously erred in dismissing the Petition on the ground that the
Decision of the RTC in a summary proceeding for the declaration of presumptive death is
immediately final and executory upon notice to the parties and, hence, is not subject to
ordinary appeal
2. Whether the CA seriously erred in affirming the RTCs grant of the Petition for
Declaration of Presumptive Death under Article 41 of the Family Code based on the
evidence that respondent presented
Our Ruling
1. On whether the CA seriously erred in dismissing the Petition on the ground that the Decision
of the RTC in a summary proceeding for the declaration of presumptive death is immediately
final and executory upon notice to the parties and, hence, is not subject to ordinary appeal
In the assailed Resolution dated 23 January 2009, the CA dismissed the Petition assailing the
RTCs grant of the Petition for Declaration of Presumptive Death of the absent spouse under
Article 41 of the Family Code. Citing Republic v. Bermudez-Lorino,5 the appellate court noted
that a petition for declaration of presumptive death for the purpose of remarriage is a summary
judicial proceeding under the Family Code. Hence, the RTC Decision therein is immediately
final and executory upon notice to the parties, by express provision of Article 247 of the same
Code. The decision is therefore not subject to ordinary appeal, and the attempt to question it
through a Notice of Appeal is unavailing.
We affirm the CA ruling.
Article 41 of the Family Code provides:
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 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. (Underscoring supplied.)
Clearly, a petition for declaration of presumptive death of an absent spouse for the purpose of
contracting a subsequent marriage under Article 41 of the Family Code is a summary proceeding
"as provided for" under the Family Code.
Further, Title XI of the Family Code is entitled "Summary Judicial Proceedings in the Family
Law." Subsumed thereunder are Articles 238 and 247, which provide:
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.
xxx

xxx

xxx

Art. 247. The judgment of the court shall be immediately final and executory.
Further, Article 253 of the Family Code reads:
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.
Taken together, Articles 41, 238, 247 and 253 of the Family Code provide that since a petition for
declaration of presumptive death is a summary proceeding, the judgment of the court therein
shall be immediately final and executory.
In Republic v. Bermudez-Lorino,6 the Republic likewise appealed the CAs affirmation of the
RTCs grant of respondents Petition for Declaration of Presumptive Death of her absent spouse.
The Court therein held that it was an error for the Republic to file a Notice of Appeal when the
latter elevated the matter to the CA, 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 Section 247, Family Code, supra, are "immediately final and executory."
xxx

xxx

xxx

But, if only to set the records straight and for the future guidance of the bench and the bar, let it
be stated that the RTCs decision dated November 7, 2001, was immediately final and executory
upon notice to the parties. It was erroneous for the OSG to file a notice of appeal, and for the

RTC to give due course thereto. The Court of Appeals acquired no jurisdiction over the case, and
should have dismissed the appeal outright on that ground.
Justice (later Chief Justice) Artemio Panganiban, who concurred in the result reached by the
Court in Republic v. Bermudez-Lorino, additionally opined that what the OSG should have filed
was a petition for certiorari under Rule 65, not a petition for review under Rule 45.
In the present case, the Republic argues that Bermudez-Lorino has been superseded by the
subsequent Decision of the Court in Republic v. Jomoc,7 issued a few months later.
In Jomoc, the RTC granted respondents Petition for Declaration of Presumptive Death of her
absent husband for the purpose of remarriage. Petitioner Republic appealed the RTC Decision by
filing a Notice of Appeal. The trial court disapproved the Notice of Appeal on the ground that,
under the Rules of Court,8 a record on appeal is required to be filed when appealing special
proceedings cases. The CA affirmed the RTC ruling. In reversing the CA, this Court clarified that
while an action for declaration of death or absence under Rule 72, Section 1(m), expressly falls
under the category of special proceedings, a petition for declaration of presumptive death under
Article 41 of the Family Code is a summary proceeding, as provided for by Article 238 of the
same Code. Since its purpose was to enable her to contract a subsequent valid marriage,
petitioners action was a summary proceeding based on Article 41 of the Family Code, rather
than a special proceeding under Rule 72 of the Rules of Court. Considering that this action was
not a special proceeding, petitioner was not required to file a record on appeal when it appealed
the RTC Decision to the CA.
We do not agree with the Republics argument that Republic v. Jomoc superseded our ruling in
Republic v. Bermudez-Lorino. As observed by the CA, the Supreme Court in Jomoc did not
expound on the characteristics of a summary proceeding under the Family Code. In contrast, the
Court in Bermudez-Lorino expressly stated that its ruling on the impropriety of an ordinary
appeal as a vehicle for questioning the trial courts Decision in a summary proceeding for
declaration of presumptive death under Article 41 of the Family Code was intended "to set the
records straight and for the future guidance of the bench and the bar."
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 in Republic v. Tango:9
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. 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.
Evidently then, the CA did not commit any error in dismissing the Republics Notice of Appeal
on the ground that the RTC judgment on the Petition for Declaration of Presumptive Death of

respondents spouse was immediately final and executory and, hence, not subject to ordinary
appeal.
2. On whether the CA seriously erred in affirming the RTCs grant of the Petition for Declaration
of Presumptive Death under Article 41 of the Family Code based on the evidence that respondent
had presented
Petitioner also assails the RTCs grant of the Petition for Declaration of Presumptive Death of the
absent spouse of respondent on the ground that she had not adduced the evidence required to
establish a well-founded belief that her absent spouse was already dead, as expressly required by
Article 41 of the Family Code. Petitioner cites Republic v. Nolasco,10 United States v.
Biasbas11 and Republic v. Court of Appeals and Alegro12 as authorities on the subject.
In Nolasco, petitioner Republic sought the reversal of the CAs affirmation of the RTCs grant of
respondents 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 RTCs 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 "wellfounded 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.1wphi1 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 latters
relatives, these relatives were not presented to corroborate Diosdados 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 Republics 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
WHEREFORE, premises considered, the assailed Resolutions of the Court of Appeals dated 23
January 2009 and 3 April 2009 in CA-G.R. CV No. 90165 are AFFIRMED.
SO ORDERED.
G.R. No. 180863

September 8, 2009

ANGELITA VALDEZ, Petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, Respondent.
DECISION
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court
assailing the Decision of the Regional Trial Court (RTC) of Camiling, Tarlac dated November
12, 2007 dismissing petitioner Angelita Valdezs petition for the declaration of presumptive death
of her husband, Sofio Polborosa (Sofio).
The facts of the case are as follows:
Petitioner married Sofio on January 11, 1971 in Pateros, Rizal. On December 13, 1971, petitioner
gave birth to the spouses only child, Nancy. According to petitioner, she and Sofio argued
constantly because the latter was unemployed and did not bring home any money. In March

1972, Sofio left their conjugal dwelling. Petitioner and their child waited for him to return but,
finally, in May 1972, petitioner decided to go back to her parents home in Bancay 1st, Camiling,
Tarlac. Three years passed without any word from Sofio. In October 1975, Sofio showed up at
Bancay 1st. He and petitioner talked for several hours and they agreed to separate. They executed
a document to that effect.1 That was the last time petitioner saw him. After that, petitioner didnt
hear any news of Sofio, his whereabouts or even if he was alive or not.2
Believing that Sofio was already dead, petitioner married Virgilio Reyes on June 20,
1985.3 Subsequently, however, Virgilios application for naturalization filed with the United
States Department of Homeland Security was denied because petitioners marriage to Sofio was
subsisting.4 Hence, on March 29, 2007, petitioner filed a Petition before the RTC of Camiling,
Tarlac seeking the declaration of presumptive death of Sofio.
The RTC rendered its Decision5 on November 12, 2007, dismissing the Petition for lack of merit.
The RTC held that Angelita "was not able to prove the well-grounded belief that her husband
Sofio Polborosa was already dead." It said that under Article 41 of the Family Code, the present
spouse is burdened to prove that her spouse has been absent and that she has a well-founded
belief that the absent spouse is already dead before the present spouse may contract a subsequent
marriage. This belief, the RTC said, must be the result of proper and honest-to-goodness
inquiries and efforts to ascertain the whereabouts of the absent spouse.
The RTC found that, by petitioners own admission, she did not try to find her husband anymore
in light of their mutual agreement to live separately. Likewise, petitioners daughter testified that
her mother prevented her from looking for her father. The RTC also said there is a strong
possibility that Sofio is still alive, considering that he would have been only 61 years old by then,
and people who have reached their 60s have not become increasingly low in health and spirits,
and, even assuming as true petitioners testimony that Sofio was a chain smoker and a drunkard,
there is no evidence that he continues to drink and smoke until now.
Petitioner filed a motion for reconsideration.6 She argued that it is the Civil Code that applies in
this case and not the Family Code since petitioners marriage to Sofio was celebrated on January
11, 1971, long before the Family Code took effect. Petitioner further argued that she had
acquired a vested right under the provisions of the Civil Code and the stricter provisions of the
Family Code should not be applied against her because Title XIV of the Civil Code, where
Articles 384 and 390 on declaration of absence and presumption of death, respectively, can be
found, was not expressly repealed by the Family Code. To apply the stricter provisions of the
Family Code will impair the rights petitioner had acquired under the Civil Code.
The RTC denied the Motion for Reconsideration in a Resolution dated December 10, 2007.7

Petitioner now comes before this Court seeking the reversal of the RTC Decision and Motion for
Reconsideration.
In its Manifestation and Motion,8 the Office of the Solicitor General (OSG) recommended that
the Court set aside the assailed RTC Decision and grant the Petition to declare Sofio
presumptively dead. The OSG argues that the requirement of "well-founded belief" under Article
41 of the Family Code is not applicable to the instant case. It said that petitioner could not be
expected to comply with this requirement because it was not yet in existence during her marriage
to Virgilio Reyes in 1985. The OSG further argues that before the effectivity of the Family Code,
petitioner already acquired a vested right as to the validity of her marriage to Virgilio Reyes
based on the presumed death of Sofio under the Civil Code. This vested right and the
presumption of Sofios death, the OSG posits, could not be affected by the obligations created
under the Family Code.9
Next, the OSG contends that Article 390 of the Civil Code was not repealed by Article 41 of the
Family Code.10Title XIV of the Civil Code, the OSG said, was not one of those expressly
repealed by the Family Code. Moreover, Article 256 of the Family Code provides that its
provisions shall not be retroactively applied if they will prejudice or impair vested or acquired
rights.11
The RTC Decision, insofar as it dismissed the Petition, is affirmed. However, we must state that
we are denying the Petition on grounds different from those cited in the RTC Decision.
Initially, we discuss a procedural issue. Under the Rules of Court, a party may directly appeal to
this Court from a decision of the trial court only on pure questions of law. A question of law lies,
on one hand, when the doubt or difference arises as to what the law is on a certain set of facts; on
the other hand, a question of fact exists when the doubt or difference arises as to the truth or
falsehood of the alleged facts. Here, the facts are not disputed; the controversy merely relates to
the correct application of the law or jurisprudence to the undisputed facts.12
The RTC erred in applying the provisions of the Family Code and holding that petitioner needed
to prove a "well-founded belief" that Sofio was already dead. The RTC applied Article 41 of the
Family Code, to wit:
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 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 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.
It is readily apparent, however, that the marriages of petitioner to Sofio and Virgilio on January
11, 1971 and June 20, 1985, respectively, were both celebrated under the auspices of the Civil
Code.
The pertinent provision of the Civil Code is Article 83:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first
spouse of such person with any person other than such first spouse shall be illegal and void from
its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the second
marriage without the spouse present having news of the absentee being alive, of if the
absentee, though he has been absent for less than seven years, is generally considered as
dead and believed to be so by the spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed dead according to Articles 390 and
391. The marriage so contracted shall be valid in any of the three cases until declared null
and void by a competent court.
Article 390 of the Civil Code states:
Art. 390. After an absence of seven years, it being unknown whether or not the absentee still
lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five
years shall be sufficient in order that his succession may be opened.
The Court, on several occasions, had interpreted the above-quoted provision in this wise:
For the purposes of the civil marriage law, it is not necessary to have the former spouse judicially
declared an absentee. The declaration of absence made in accordance with the provisions of the
Civil Code has for its sole purpose to enable the taking of the necessary precautions for the
administration of the estate of the absentee. For the celebration of civil marriage, however, the
law only requires that the former spouse has been absent for seven consecutive years at the time
of the second marriage, that the spouse present does not know his or her former spouse to be

living, that such former spouse is generally reputed to be dead and the spouse present so believes
at the time of the celebration of the marriage.13
Further, the Court explained that presumption of death cannot be the subject of court proceedings
independent of the settlement of the absentees estate.
In re Szatraw14 is instructive. In that case, petitioner contracted marriage with a Polish national in
1937. They lived together as husband and wife for three years. Sometime in 1940, the husband,
on the pretext of visiting some friends, left the conjugal abode with their child and never
returned. After inquiring from friends, petitioner found that her husband went to Shanghai,
China. However, friends who came from Shanghai told her that the husband was not seen there.
In 1948, petitioner filed a petition for the declaration of presumptive death of her husband
arguing that since the latter had been absent for more than seven years and she had not heard any
news from him and about her child, she believes that he is dead. In deciding the case, the Court
said:
The petition is not for the settlement of the estate of Nicolai Szatraw, because it does not appear
that he possessed property brought to the marriage and because he had acquired no property
during his married life with the petitioner. The rule invoked by the latter is merely one of
evidence which permits the court to presume that a person is dead after the fact that such person
had been unheard from in seven years had been established. This presumption may arise and be
invoked and made in a case, either in an action or in a special proceeding, which is tried or heard
by, and submitted for decision to, a competent court. Independently of such an action or special
proceeding, the presumption of death cannot be invoked, nor can it be made the subject of an
action or special proceeding. In this case, there is no right to be enforced nor is there a remedy
prayed for by the petitioner against her absent husband. Neither is there a prayer for the final
determination of his right or status or for the ascertainment of a particular fact (Hagans v.
Wislizenus, 42 Phil. 880), for the petition does not pray for a declaration that the petitioner's
husband is dead, but merely asks for a declaration that he be presumed dead because he had been
unheard from in seven years. If there is any pretense at securing a declaration that the petitioner's
husband is dead, such a pretension cannot be granted because it is unauthorized. The petition is
for a declaration that the petitioner's husband is presumptively dead. But this declaration, even if
judicially made, would not improve the petitioner's situation, because such a presumption is
already established by law. A judicial pronouncement to that effect, even if final and executory,
would still be a prima facie presumption only. It is still disputable. It is for that reason that it
cannot be the subject of a judicial pronouncement or declaration, if it is the only question or
matter involved in a case, or upon which a competent court has to pass. The latter must decide
finally the controversy between the parties, or determine finally the right or status of a party or
establish finally a particular fact, out of which certain rights and obligations arise or may arise;
and once such controversy is decided by a final judgment, or such right or status determined, or
such particular fact established, by a final decree, then the judgment on the subject of the

controversy, or the decree upon the right or status of a party or upon the existence of a particular
fact, becomes res judicata, subject to no collateral attack, except in a few rare instances
especially provided by law. It is, therefore, clear that a judicial declaration that a person is
presumptively dead, because he had been unheard from in seven years, being a presumption juris
tantum only, subject to contrary proof, cannot reach the stage of finality or become final. Proof
of actual death of the person presumed dead because he had been unheard from in seven years,
would have to be made in another proceeding to have such particular fact finally
determined.1avvphi1 If a judicial decree declaring a person presumptively dead, because he had
not been heard from in seven years, cannot become final and executory even after the lapse of
the reglementary period within which an appeal may be taken, for such presumption is still
disputable and remains subject to contrary proof, then a petition for such a declaration is useless,
unnecessary, superfluous and of no benefit to the petitioner.15
In Lukban v. Republic,16 petitioner Lourdes G. Lukban contracted marriage with Francisco
Chuidian on December 10, 1933. A few days later, on December 27, Francisco left Lourdes after
a violent quarrel. She did not hear from him after that day. Her diligent search, inquiries from his
parents and friends, and search in his last known address, proved futile. Believing her husband
was already dead since he had been absent for more than twenty years, petitioner filed a petition
in 1956 for a declaration that she is a widow of her husband who is presumed to be dead and has
no legal impediment to contract a subsequent marriage. On the other hand, the antecedents in
Gue v. Republic17 are similar to Szatraw. On January 5, 1946, Angelina Gues husband left
Manila where they were residing and went to Shanghai, China. From that day on, he had not
been heard of, had not written to her, nor in anyway communicated with her as to his
whereabouts. Despite her efforts and diligence, she failed to locate him. After 11 years, she asked
the court for a declaration of the presumption of death of Willian Gue, pursuant to the provisions
of Article 390 of the Civil Code of the Philippines.
In both cases, the Court reiterated its ruling in Szatraw. It held that a petition for judicial
declaration that petitioner's husband is presumed to be dead cannot be entertained because it is
not authorized by law.18
From the foregoing, it can be gleaned that, under the Civil Code, the presumption of death is
established by law19and no court declaration is needed for the presumption to arise. Since death
is presumed to have taken place by the seventh year of absence,20 Sofio is to be presumed dead
starting October 1982.
Consequently, at the time of petitioners marriage to Virgilio, there existed no impediment to
petitioners capacity to marry, and the marriage is valid under paragraph 2 of Article 83 of the
Civil Code.

Further, considering that it is the Civil Code that applies, proof of "well-founded belief" is not
required. Petitioner could not have been expected to comply with this requirement since the
Family Code was not yet in effect at the time of her marriage to Virgilio. The enactment of the
Family Code in 1988 does not change this conclusion. The Family Code itself states:
Art. 256. This Code shall have retroactive effect insofar as it does not prejudice or impair vested
or acquired rights in accordance with the Civil Code or other laws.
To retroactively apply the provisions of the Family Code requiring petitioner to exhibit "wellfounded belief" will, ultimately, result in the invalidation of her second marriage, which was
valid at the time it was celebrated. Such a situation would be untenable and would go against the
objectives that the Family Code wishes to achieve.
In sum, we hold that the Petition must be dismissed since no decree on the presumption of
Sofios death can be granted under the Civil Code, the same presumption having arisen by
operation of law. However, we declare that petitioner was capacitated to marry Virgilio at the
time their marriage was celebrated in 1985 and, therefore, the said marriage is legal and valid.
WHEREFORE, the foregoing premises considered, the Petition is DENIED.
SO ORDERED.
SECOND DIVISION
G.R. No. 199194, February 10, 2016
REPUBLIC OF THE PHILIPPINES, Petitioner, v. JOSE B. SAREOGON,
JR., Respondent.
DECISION
DEL CASTILLO, J.:
A petition for certiorari pursuant to Rule 65 of the Rules of Court is the proper remedy to
challenge a trial court''s declaration of presumptive death under Article 41 of The Family Code of
the Philippines1(Family Code).2chanroblesvirtuallawlibrary
This Petition for Review on Certiorari3 assails the October 24, 2011 Decision4 of the Court of
Appeals (CA) in CA-GR. SP No. 04158-MIN dismissing the Petition for Certiorari filed by
petitioner Republic of the Philippines (Republic).
Factual Antecedents
On November 4, 2008, respondent Jose B. Sarefiogon, Jr. (Jose) filed a Petition5 before the

Regional Trial Court (RTC) of Ozamiz6 City-Branch 15 the declaration of presumptive death of
his wife, Netchie S.7 Sareogon (Netchie).8chanroblesvirtuallawlibrary
In an Amended Order dated Februrary 11, 2009, the RTC set the Petition for initial hearing on
April 16, 2009. It likewise directed the publication of said Order in a newspaper of general
circulation in the cities of Tangub, Ozamiz and Oroquieta, all in the province of Misamis
Occidental. Nobody opposed the Petition.9 Trial then followed.10chanroblesvirtuallawlibrary
Jose testified that he first met Netchie in Clarin, Misamis Occidental in 1991,11 They later
became sweethearts and on August 10,1996, they got married in civil rites at the Manila City
Hall.12 However, they lived together as husband and wife for a month only because he left to
work as a seaman while Netchie went to Hongkong as a domestic helper.13 For three months, he
did not receive any communication from Netchie.14 He likewise had no idea about her
whereabouts.15 While still abroad, he tried to contact Netchie''s parents, but failed, as the latter
had allegedly left Clarin, Misamis Occidental.16 He returned home after his contract expired.17 He
then inquired from Netchie''s relatives and friends about her whereabouts, but they also did not
know where she was.18 Because of these, he had to presume that his wife Netchie was already
dead.19 He filed the Petition before the RTC so he could contract another marriage pursuant to
Article 41 of the Family Code.20chanroblesvirtuallawlibrary
Jose''s testimony was corroborated by his older brother Joel Sareogon, and by Netchie''s aunt,
Consuelo Sande.21 These two witnesses testified that Jose and Netchie lived together as husband
and wife only for one month prior to their leaving the Philippines for separate destinations
abroad.22These two added that they had no information regarding Netchie''s
location.23chanroblesvirtuallawlibrary
Ruling of the Regional Trial Court
In its Decision24 dated January 31,2011 in Spec. Proc. No. 045-08, the RTC held that Jose had
established by preponderance of evidence that he is entitled to the relief prayed for under Article
41 of the Family Code.25 The RTC found that Netchie had disappeared for more than four years,
reason enough for Jose to conclude that his wife was indeed already dead.26 The dispositive
portion of the Decision reads:ChanRoblesVirtualawlibrary
VIEWED IN THE LIGHT OF THE FOREGOING, judgment is hereby rendered declaring
respondent presumptively dead for purposes of remarriage of petitioner.
SO ORDERED.27chanroblesvirtuallawlibrary
Proceedings before the Court of Appeals
On April 19,2011, the Republic, through the Office of the Solicitor General (OSG), elevated the
judgment of the RTC to the CA via a Petition for Certiorari28, under Rule 65 of the Revised
Rules of Court.
In its Decision29 of October 24, 2011, the CA held that the Republic used the wrong recourse by
instituting a petition for certiorari under Rule 65 of the Revised Rules of Court. The CA

perceived no error at all in the RTC''s judgment granting Jose''s Petition for the declaration of the
presumptive death of his wife, Netchie. The CA thus held in effect that the Republic''s appeal
sought to correct or review the RTC''s alleged misappreciation of evidence which could not
translate into excess or lack of jurisdiction amounting to grave abuse of discretion.30 The CA
noted that the RTC properly caused the publication of the Order setting the case for initial
hearing.31 The CA essentially ruled that, "[a] writ of certiorari may not be used to correct a lower
court''s evaluation of the evidence and factual findings. In other words, it is not a remedy for
mere errors of judgment, which are correctible by an appeal,"32 The CAthendisposed of the case
in this wise:ChanRoblesVirtualawlibrary
WHEREFORE, the petition for certiorari is dismissed.
SO ORDERED.33chanroblesvirtuallawlibrary
Issues
The Republic filed the instant Petition34 raising the following issues:ChanRoblesVirtualawlibrary
THE HONORABLE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN ITS
ASSAILED DECISION BECAUSE:chanRoblesvirtualLawlibrary
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW
IN DISMISSING THE REPUBLIC''S PETITION FOR REVIEW ON CERTIORARI UNDER
RULE 65, ON THE GROUND THAT THE PROPER REMEDY SHOULD HAVE BEEN TO
APPEAL THE RTC DECISION, BECAUSE IMMEDIATELY FINAL AND EXECUTORY
JUDGMENTS OR DECISIONS ARE NOT APPEALABLE UNDER THE EXPRESS
PROVISION OF LAW.chanRoblesvirtualLawlibrary
II
THE ALLEGED EFFORTS OF RESPONDENT IN LOCATING HIS MISSING WIFE DO NOT
SUFFICIENTLY SUPPORT A "WELL-FOUNDED BELIEF" THAT RESPONDENT''S
ABSENT WIFE X X X IS PROBABLY DEAD.35chanroblesvirtuallawlibrary
Petitioner''s Arguments
The Republic insists that a petition for certiorari under Rule 65 of the Revised Rules of Court is
the proper remedy to challenge an RTC''s immediately final and executory Decision on a
presumptive death.36chanroblesvirtuallawlibrary
The Republic claims that based on jurisprudence, Jose''s alleged efforts in locating Netchie did
not engender or generate a well-founded belief that the latter is probably dead.37 It maintains that
even as Jose avowedly averred that he exerted efforts to locate Netchie, Jose inexplicably failed
to enlist the assistance of the relevant government agencies like the Philippine National Police,
the National Bureau of Investigation, the Department of Foreign Affairs, the Bureau of
Immigration, the Philippine Overseas Employment Administration, or the Overseas Workers
Welfare Administration.38 It likewise points out that Jose did not present any disinterested person
to corroborate his allegations that the latter was indeed missing and could not be found.39 It also
contends that Jose did not advert to circumstances, events, occasions, or situations that would

prove that he did in fact make a comprehensive search for Netchie.40 The Republic makes the
plea that courts should ever be vigilant and wary about the propensity of some erring spouses in
resorting to Article 41 of the Family Code for the purpose of terminating their
marriage.41chanroblesvirtuallawlibrary
Finally, the Republic submits that Jose did not categorically assert that he wanted to have
Netchie declared presumptively dead because he intends to get married again, an essential
premise of Article 41 of the Family Code.42chanroblesvirtuallawlibrary
Respondent''s Arguments
Jose counters that the CA properly dismissed the Republic''s Petition because the latter''s petition
is erected upon the ground that the CA did not correctly weigh or calibrate the evidence on
record, or assigned to the evidence its due worth, import or significance; and that such a ground
does not avail in a petition for certiorari under Rule 65 of the Revised Rules of Court.43 Jose also
contends that the Republic should have instead filed a motion for reconsideration44 of the RTC''s
Decision of January 31, 2011, reasoning out that a motion for reconsideration is a plain, speedy
and adequate remedy in law. Jose furthermore submits that the RTC did not act arbitrarily or
capriciously in granting his petition because it even dutifully complied with the publication
requirement.45 He moreover argues that to sustain the present petition would allow the executive
branch to unduly make inroads into judicial territory.46 Finally, he insists that the trial court''s
factual findings are entitled to great weight and respect as these were arrived after due
deliberation.47chanRoblesvirtualLawlibrary
This Court''s Ruling
This Court finds the Republic''s petition meritorious.
A petition for certiorari under Rule 65 of the Rules of Court is the proper remedy to question
the RTC''s Decision in a summary proceeding for the declaration of presumptive death
In the 2005 case of Republic v. Bermudez-Lorino,48 we held that the RTC''s Decision on a
Petition for declaration of presumptive death pursuant to Article 41 of the Family Code is
immediately final and executory. Thus, the CA has no jurisdiction to entertain a notice of appeal
pertaining to such judgment.49 Concurring in the result, Justice (later Chief Justice) Artemio
Panganiban further therein pointed out that the correct remedy to challenge the RTC Decision
was to institute a petition for certiorari under Rule 65, and not a petition for review under Rule
45.50chanroblesvirtuallawlibrary
We expounded on this appellate procedure in Republic v. Tango:51chanroblesvirtuallawlibrary
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:ChanRoblesVirtualawlibrary

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:ChanRoblesVirtualawlibrary
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:ChanRoblesVirtualawlibrary
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, x x x52 (Citation
omitted; Underscoring supplied)
"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 C A, 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."53chanroblesvirtuallawlibrary
In fact, in Republic v. Narceda,54 we held that the OSG availed of the wrong remedy when it filed
a notice of appeal under Rule 42 with the CA to question the RTCs Decision declaring the
presumptive death of Marina B. Narceda.55chanroblesvirtuallawlibrary
Above all, this Court''s ruling in Republic v. Cantor56 made it crystal clear that the OSG properly
availed of a petition for certiorari under Rule 65 to challenge the RTCs Order therein declaring
Jerry Cantor as presumptively dead.
Based on the foregoing, it is clear that the Republic correctly availed of certiorari under Rule 65
of the Revised Rules of Court in assailing before the CA the aforesaid RTCs Decision.
The "well-founded belief" requisite under Article 41 of the Family Code is complied with only
upon a showing that sincere honest-to-goodness efforts had indeed been made to ascertain
whether the absent spouse is still alive or is already dead
We now proceed to determine whether the RTC properly granted Jose''s Petition. Article 41 of
the Family Code pertinently provides that:ChanRoblesVirtualawlibrary
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 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. (83a)
In Republic v. Cantor,57 we further held that:ChanRoblesVirtualawlibrary
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 wellfounded belief that the prior spouse was already dead. Under Article 41 of the Family Code,
there are four essential requisites for the declaration of presumptive
death:ChanRoblesVirtualawlibrary
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 of the 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.58 (Underscoring supplied)
With respect to the third element (which seems to be the element that in this case invites
extended discussion), the holding is that the mere absence of the spouse (even for such period required by the law), or lack of news that such
absentee is still alive, failure to communicate [by the absentee spouse or invocation of the]
general presumption on 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 due 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 [either] still alive or is already dead.
xxxx
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).59 (Emphasis omitted; underscoring supplied)

In the case at bar, the RTC ruled that Jose 1ms "well-founded belief that Netchie was already
dead upon the following grounds:
(1) Jose allegedly tried to contact Netchie''s parents while he was still out of the country, but did
not reach them as they had allegedly left Clarin, Misamis Occidental;
(2) Jose believed/presumed that Netchie was already dead because when he returned home, he
was not able to obtain any information that Netchie was still alive from Netchie''s relatives and
friends;
(3) Jose''s testimony to the effect that Netchie is no longer alive, hence must be presumed dead,
was corroborated by Jose''s older brother, and by Netchie''s aunt, both of whom testified that he
(Jose) and Netchie lived together as husband and wife only for one month and that after this,
there had been no information as to Netchie''s whereabouts.
In the above-cited case of Republic v. Cantor,60 this Court held that the present spouse (Maria Fe
Espinosa Cantor) merely conducted a "passive search" because she simply made unsubstantiated
inquiries from her in-laws, from neighbors and friends. For that reason, this Court stressed that
the degree of diligence and reasonable search required by law is not met (1) when there is failure
to present the persons from whom the present spouse allegedly made inquiries especially the
absent spouse''s relatives, neighbors, and friends, (2) when there is failure to report the missing
spouse''s purported disappearance or death to the police or mass media, and (3) when the present
spouse''s evidence might or would only show that the absent spouse chose not to communicate,
but not necessarily that the latter was indeed dead.61 The rationale for this palpably stringent or
rigorous requirement has been marked out thus:ChanRoblesVirtualawlibrary
xxx [T]he 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. xxx
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. Since marriage serves as the family''s
foundation and since it is the state''s policy to protect and strengthen the family as a basic social
institution, marriage should not be permitted to be dissolved at the whim of the parties. xxx
xxx [I]t 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." (Citations
omitted)62chanroblesvirtuallawlibrary
Given the Court''s imposition of "strict standard" in a petition for a declaration of presumptive
death under Article 41 of the Family Code, it must follow that there was no basis at all for the
RTC''s finding that Jose''s Petition complied with the requisites of Article 41 of the Family Code,

in reference to the "well-founded belief standard. If anything, Jose''s pathetically anemic efforts
to locate the missing Netchie are notches below the required degree of stringent diligence
prescribed by jurisprudence. For, aside from his bare claims that he had inquired from alleged
friends and relatives as to Netchie''s whereabouts, Jose did not call to the witness stand specific
individuals or persons whom he allegedly saw or met in the course of his search or quest for the
allegedly missing Netchie. Neither did he prove that he sought the assistance of the pertinent
government agencies as well as the media, Nor did he show mat he undertook a thorough,
determined and unflagging search for Netchie, say for at least two years (and what those years
were), and naming the particular places, provinces, cities, barangays or municipalities that he
visited, or went to, and identifying the specific persons he interviewed or talked to in the course
of his search.
WHEREFORE, the Petition is GRANTED, The Decision dated October 24, 2011 of the Court
of Appeals in CA-GR. SP No. 04158-MN is REVERSED AND SET ASIDE. The respondent''s
Petition in said Spec. Proc. No. 045-08 is accordingly DISMISSED.
SO ORDERED.
G.R. No. 187061, October 08, 2014
CELERINA J. SANTOS, Petitioner, v. RICARDO T. SANTOS, Respondent.
DECISION
LEONEN, J.:
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, 2008.2chanrobleslaw
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.4chanrobleslaw

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.8chanrobleslaw
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.11chanrobleslaw
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.12chanrobleslaw
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.13chanrobleslaw
On November 17, 2008, Celerina filed a petition for annulment of judgment14 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.18chanrobleslaw
Celerina claimed that she never resided in Tarlac. 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.24chanrobleslaw
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.26chanrobleslaw
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.27 According 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.28chanrobleslaw
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, 2009.30chanrobleslaw
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.33chanrobleslaw
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.34chanrobleslaw
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."36chanrobleslaw
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:38chanrobleslaw

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 parly 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.42chanrobleslaw
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.44chanrobleslaw
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 judgment45 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 four-year 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.46chanrobleslaw
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.47chanrobleslaw

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:chanRoblesvirtualLawlibrary
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.
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.
The existence of these conditions means that reappearance does not always immediately cause
the subsequent marriage's termination. Reappearance of 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.
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.

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.50chanrobleslaw
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 noted52 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."54chanrobleslaw
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:chanRoblesvirtualLawlibrary
1)

The prior spouse had been absent for four consecutive years;

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 well-founded belief56 that 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.58chanrobleslaw

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.59chanrobleslaw
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."60chanrobleslaw
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.63chanrobleslaw
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.

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.
.R. NO. 94053 March 17, 1993

Republic of the Philippines vs. Nolasco

FACTS:

Nolasco, a seaman, first met Janet Monica Parker in a bar in England. After that, she lived with
him on his ship for 6 months. After his seaman's contract has expired, he brought her to his
hometown in San Jose, Antique. They got married in January 1982.

After the marriage celebration, he got another employment contract and left the province. In
January 1983, Nolasco received a letter from his mother that 15 days after Janet gave birth to
their son, she left. He cut short his contract to find Janet. He returned home in November 1983.

He did so by securing another contract which England is one of its port calls. He wrote several
letters to the bar where he and Janet first met, but all were returned to him. He claimed that he
inquired from his friends but they too had no news about Janet. In 1988, Nolasco filed before the
RTC of Antique a petition for the declaration of presumptive death of his wife Janet.

RTC granted the petition. The Republic through the Solicitor-General, appealed to the CA,
contending that the trial court erred in declaring Janet presumptively dead because Nolasco had
failed to show that there existed a well-founded belief for such declaration. CA affirmed the trial
court's decision.

ISSUE:

Whether or not Nolasco has a well-founded belief that his wife is already dead.

RULING:
No. Nolasco failed to prove that he had complied with the third requirement under the Article 41
of the Family Code, the existence of a "well-founded belief" that Janet is already dead.

Under Article 41, the time required for the presumption to arise has been shortened to 4 years;
however, there is a need for judicial declaration of presumptive death to enable the spouse
present to marry. However, Article 41 imposes a stricter standard before declaring presumptive
death of one spouse. It requires a "well-founded belief" that the absentee is already dead before a
petition for declaration of presumptive death can be granted.

In the case at bar, the Court found Nolasco's alleged attempt to ascertain about Janet's
whereabouts too sketchy to form the basis of a reasonable or well-founded belief that she was
already dead.

Nolasco, after returning from his employment, instead of seeking help of local authorities or of
the British Embassy, secured another contract to London. Janet's alleged refusal to give any
information about her was too convenient an excuse to justify his failure to locate her. He did not
explain why he took him 9 months to finally reached San Jose after he asked leave from his
captain. He refused to identify his friends whom he inquired from. When the Court asked
Nolasco about the returned letters, he said he had lost them. Moreover, while he was in London,
he did not even dare to solicit help of authorities to find his wife.
The circumstances of Janet's departure and Nolasco's subsequent behavior make it very difficult
to regard the claimed belief that Janet was dead a well-founded one.