G.R. No.
165545 March 24, 2006
SOCIAL SECURITY SYSTEM v. TERESITA JARQUE VDA. DE BAILON,
[1] [2]
The Court of Appeals Decision dated June 23, 2004 and Resolution dated September 28,
2004[3] reversing the Resolution dated April 2, 2003[4] and Order dated June 4, 2003[5] of the Social
Security Commission (SSC) in SSC Case No. 4-15149-01 are challenged in the present petition for review
on certiorari.
On April 25, 1955, Clemente G. Bailon (Bailon) and Alice P. Diaz (Alice) contracted marriage
in Barcelona, Sorsogon.[6]
More than 15 years later or on October 9, 1970, Bailon filed before the then Court of First
Instance (CFI) of Sorsogon a petition[7] to declare Alice presumptively dead.
By Order of December 10, 1970,[8] the CFI granted the petition, disposing as follows:
WHEREFORE, there being no opposition filed against the petition
notwithstanding the publication of the Notice of Hearing in a newspaper of general
circulation in the country, Alice Diaz is hereby declared to [sic] all legal intents and
purposes, except for those of succession, presumptively dead.
SO ORDERED.[9] (Underscoring supplied)
Close to 13 years after his wife Alice was declared presumptively dead or on August 8, 1983,
Bailon contracted marriage with Teresita Jarque (respondent) in Casiguran, Sorsogon.[10]
On January 30, 1998, Bailon, who was a member of the Social Security System (SSS) since
1960 and a retiree pensioner thereof effective July 1994, died.[11]
Respondent thereupon filed a claim for funeral benefits, and was granted P12,000[12] by the
SSS.
Respondent filed on March 11, 1998 an additional claim for death benefits[13] which was also
granted by the SSS on April 6, 1998.[14]
Cecilia Bailon-Yap (Cecilia), who claimed to be a daughter of Bailon and one Elisa Jayona
(Elisa) contested before the SSS the release to respondent of the death and funeral benefits. She claimed
that Bailon contracted three marriages in his lifetime, the first with Alice, the second with her mother Elisa,
and the third with respondent, all of whom are still alive; she, together with her siblings, paid for Bailons
medical and funeral expenses; and all the documents submitted by respondent to the SSS in support of
her claims are spurious.
In support of her claim, Cecilia and her sister Norma Bailon Chavez (Norma) submitted an
Affidavit dated February 13, 1999[15] averring that they are two of nine children of Bailon and Elisa who
cohabited as husband and wife as early as 1958; and they were reserving their right to file the necessary
court action to contest the marriage between Bailon and respondent as they personally know that Alice is
still very much alive.[16]
In the meantime, on April 5, 1999, a certain Hermes P. Diaz, claiming to be the brother and
guardian of Aliz P. Diaz, filed before the SSS a claim for death benefits accruing from Bailons death,[17] he
further attesting in a sworn statement[18] that it was Norma who defrayed Bailons funeral expenses.
Elisa and seven of her children[19] subsequently filed claims for death benefits as Bailons
beneficiaries before the SSS.[20]
Atty. Marites C. de la Torre of the Legal Unit of the SSS Bicol Cluster, Naga City recommended
the cancellation of payment of death pension benefits to respondent and the issuance of an order for the
refund of the amount paid to her from February 1998 to May 1999 representing such benefits; the denial
of the claim of Alice on the ground that she was not dependent upon Bailon for support during his
lifetime; and the payment of the balance of the five-year guaranteed pension to Bailons beneficiaries
according to the order of preference provided under the law, after the amount erroneously paid to
respondent has been collected. The pertinent portions of the Memorandum read:
1. Aliz [sic] Diaz never disappeared. The court must have been misled by
misrepresentation in declaring the first wife, Aliz [sic] Diaz, as presumptively dead.
xxxx
x x x the Order of the court in the Petition to Declare Alice Diaz
Presumptively Dead, did not become final. The presence of Aliz [sic] Diaz, is contrary
proof that rendered it invalid.
xxxx
3. It was the deceased member who abandoned his wife, Aliz [sic]
Diaz. He, being in bad faith, and is the deserting spouse, his remarriage is void,
being bigamous.
xxxx
In this case, it is the deceased member who was the deserting spouse and
who remarried, thus his marriage to Teresita Jarque, for the second time was void
as it was bigamous. To require affidavit of reappearance to terminate the second
marriage is not necessary as there is no disappearance of Aliz [sic] Diaz, the first
wife, and a voidable marriage [sic], to speak of.[21] (Underscoring supplied)
In the meantime, the SSS Sorsogon Branch, by letter of August 16, 2000,[22] advised respondent
that as Cecilia and Norma were the ones who defrayed Bailons funeral expenses, she should return
the P12,000 paid to her.
In a separate letter dated September 7, 1999,[23] the SSS advised respondent of the cancellation
of her monthly pension for death benefits in view of the opinion rendered by its legal department that her
marriage with Bailon was void as it was contracted while the latters marriage with Alice was still
subsisting; and the December 10, 1970 CFI Order declaring Alice presumptively dead did not become
final, her presence being contrary proof against the validity of the order. It thus requested respondent to
return the amount of P24,000 representing the total amount of monthly pension she had received from
the SSS from February 1998 to May 1999.
Respondent protested the cancellation of her monthly pension for death benefits by letter to the
SSS dated October 12, 1999.[24] In a subsequent letter dated November 27, 1999[25] to the SSC, she
reiterated her request for the release of her monthly pension, asserting that her marriage with Bailon was
not declared before any court of justice as bigamous or unlawful, hence, it remained valid and subsisting
for all legal intents and purposes as in fact Bailon designated her as his beneficiary.
The SSS, however, by letter to respondent dated January 21, 2000,[26] maintained the denial of
her claim for and the discontinuance of payment of monthly pension. It advised her, however, that she
was not deprived of her right to file a petition with the SSC.
 Respondent thus filed a petition[27] against the SSS before the SSC for the restoration to her of
her entitlement to monthly pension.
In the meantime, respondent informed the SSS that she was returning, under protest, the
amount of P12,000 representing the funeral benefits she received, she alleging that Norma and her
siblings forcibly and coercively prevented her from spending any amount during Bailons wake. [28]
After the SSS filed its Answer[29] to respondents petition, and the parties filed their respective
Position Papers, one Alicia P. Diaz filed an Affidavit[30] dated August 14, 2002 with the SSS Naga Branch
attesting that she is the widow of Bailon; she had only recently come to know of the petition filed by Bailon
to declare her presumptively dead; it is not true that she disappeared as Bailon could have easily located
her, she having stayed at her parents residence in Barcelona, Sorsogon after she found out that Bailon
was having an extramarital affair; and Bailon used to visit her even after their separation.
By Resolution of April 2, 2003, the SSC found that the marriage of respondent to Bailon was
void and, therefore, she was just a common-law-wife. Accordingly it disposed as follows, quoted verbatim:
WHEREFORE, this Commission finds, and so holds, that petitioner
Teresita Jarque-Bailon is not the legitimate spouse and primary beneficiary of SSS
member Clemente Bailon.
Accordingly, the petitioner is hereby ordered to refund to the SSS the
amount of P24,000.00 representing the death benefit she received therefrom for the
period February 1998 until May 1999 as well as P12,000.00 representing the funeral
benefit.
The SSS is hereby ordered to pay Alice (a.k.a. Aliz) Diaz-Bailon the
appropriate death benefit arising from the demise of SSS member Clemente Bailon
in accordance with Section 8(e) and (k) as well as Section 13 of the SS Law, as
amended, and its prevailing rules and regulations and to inform this Commission of
its compliance herewith.
SO ORDERED.[31] (Underscoring supplied)
In so ruling against respondent, the SSC ratiocinated.
After a thorough examination of the evidence at hand, this Commission
comes to the inevitable conclusion that the petitioner is not the legitimate wife of the
deceased member.
xxxx
There is x x x ample evidence pointing to the fact that, contrary to the
declaration of the then CFI of Sorsogon (10th Judicial District), the first wife never
disappeared as the deceased member represented in bad faith. This Commission
accords credence to the findings of the SSS contained in its Memorandum
dated August 9, 1999,[32] revealing that Alice (a.k.a. Aliz) Diaz never left Barcelona,
Sorsogon, after her separation from Clemente Bailon x x x.
As the declaration of presumptive death was extracted by the deceased
member using artifice and by exerting fraud upon the unsuspecting court of law,
x x x it never had the effect of giving the deceased member the right to marry
anew. x x x [I]t is clear that the marriage to the petitioner is void, considering that the
first marriage on April 25, 1955 to Alice Diaz was not previously annulled, invalidated
or otherwise dissolved during the lifetime of the parties thereto. x x x as determined
through the investigation conducted by the SSS, Clemente Bailon was the
abandoning spouse, not Alice Diaz Bailon.
xxxx
It having been established, by substantial evidence, that the petitioner
was just a common-law wife of the deceased member, it necessarily follows that she
is not entitled as a primary beneficiary, to the latters death benefit. x x x
xxxx
It having been determined that Teresita Jarque was not the legitimate
surviving spouse and primary beneficiary of Clemente Bailon, it behooves her
to refund the total amount of death benefit she received from the SSS for the period
from February 1998 until May 1999 pursuant to the principle of solutio indebiti x x x
Likewise, it appearing that she was not the one who actually defrayed the
cost of the wake and burial of Clemente Bailon, she must return the amount
of P12,000.00 which was earlier given to her by the SSS as funeral
benefit.[33] (Underscoring supplied)
Respondents Motion for Reconsideration[34] having been denied by Order of June 4, 2003, she
filed a petition for review[35] before the Court of Appeals (CA).
By Decision of June 23, 2004, the CA reversed and set aside the April 2, 2003 Resolution
and June 4, 2003 Order of the SSC and thus ordered the SSS to pay respondent all the pension benefits
due her. Held the CA:
x x x [T]he paramount concern in this case transcends the issue of
whether or not the decision of the then CFI, now RTC, declaring Alice Diaz
presumptively dead has attained finality but, more importantly, whether or not the
respondents SSS and Commission can validly re-evaluate the findings of the RTC,
and on its own, declare the latters decision to be bereft of any basis. On similar
import, can respondents SSS and Commission validly declare the first marriage
subsisting and the second marriage null and void?
xxxx
x x x while it is true that a judgment declaring a person presumptively dead
never attains finality as the finding that the person is unheard of in seven years is
merely a presumption juris tantum, the second marriage contracted by a person with
an absent spouse endures until annulled. It is only the competent court that can
nullify the second marriage pursuant to Article 87 of the Civil Code and upon the
reappearance of the missing spouse, which action for annulment may be
filed. Nowhere does the law contemplates [sic] the possibility that respondent SSS
may validly declare the second marriage null and void on the basis alone of its own
investigation and declare that the decision of the RTC declaring one to be
presumptively dead is without basis.
Respondent SSS cannot arrogate upon itself the authority to review
the decision of the regular courts under the pretext of determining the actual and
lawful beneficiaries of its members.Notwithstanding its opinion as to the soundness
of the findings of the RTC, it should extend due credence to the decision of the RTC
absent of [sic] any judicial pronouncement to the contrary. x x x

x x x [A]ssuming arguendo that respondent SSS actually possesses the
authority to declare the decision of the RTC to be without basis, the procedure it
followed was offensive to the principle of fair play and thus its findings are of doubtful
quality considering that petitioner Teresita was not given ample opportunity to
present evidence for and her behalf.
xxxx
Respondent SSS is correct in stating that the filing of an Affidavit of
Reappearance with the Civil Registry is no longer practical under the
premises. Indeed, there is no more first marriage to restore as the marital bond
between Alice Diaz and Clemente Bailon was already terminated upon the latters
death. Neither is there a second marriage to terminate because the second marriage
was likewise dissolved by the death of Clemente Bailon.
However, it is not correct to conclude that simply because the filing of the
Affidavit of Reappearance with the Civil Registry where parties to the subsequent
marriage reside is already inutile, the respondent SSS has now the authority to
review the decision of the RTC and consequently declare the second marriage null
and void.[36] (Emphasis and underscoring supplied)
The SSC and the SSS separately filed their Motions for Reconsideration[37] which were both
denied for lack of merit. Hence, the SSS present petition for review on certiorari [38] anchored on the
following grounds:
I
THE DECISION OF THE HONORABLE COURT OF APPEALS IS CONTRARY TO
LAW.
II
THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION
AMOUNTING TO LACK OF JURISDICTION.[39]
The SSS faults the CA for failing to give due consideration to the findings of facts of the SSC
on the prior and subsisting marriage between Bailon and Alice; in disregarding the authority of the SSC
to determine to whom, between Alice and respondent, the death benefits should be awarded pursuant to
Section 5[40] of the Social Security Law; and in declaring that the SSS did not give respondent due process
or ample opportunity to present evidence in her behalf.
The SSS submits that the observations and findings relative to the CFI proceedings are of no
moment to the present controversy, as the same may be considered only as obiter dictain view of the
SSCs finding of the existence of a prior and subsisting marriage between Bailon and Alice by virtue of
which Alice has a better right to the death benefits.[41]
The petition fails.
That the SSC is empowered to settle any dispute with respect to SSS coverage, benefits and
contributions, there is no doubt. In so exercising such power, however, it cannot review, much less
reverse, decisions rendered by courts of law as it did in the case at bar when it declared that the December
10, 1970 CFI Order was obtained through fraud and subsequently disregarded the same, making its own
findings with respect to the validity of Bailon and Alices marriage on the one hand and the invalidity of
Bailon and respondents marriage on the other.
In interfering with and passing upon the CFI Order, the SSC virtually acted as an appellate
court. The law does not give the SSC unfettered discretion to trifle with orders of regular courts in the
exercise of its authority to determine the beneficiaries of the SSS.
The two marriages involved herein having been solemnized prior to the effectivity on August 3,
1988 of the Family Code, the applicable law to determine their validity is the Civil Code which was the law
in effect at the time of their celebration.[42]
Article 83 of the Civil Code[43] provides:
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, or 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. (Emphasis
and underscoring supplied)
Under the foregoing provision of the Civil Code, a subsequent marriage contracted during the
lifetime of the first spouse is illegal and void ab initio unless the prior marriage is first annulled or
dissolved or contracted under any of the three exceptional circumstances. It bears noting that the
marriage under any of these exceptional cases is deemed valid until declared null and void by a
competent court. It follows that the onus probandi in these cases rests on the party assailing the second
marriage.[44]
In the case at bar, as found by the CFI, Alice had been absent for 15 consecutive years [45] when
Bailon sought the declaration of her presumptive death, which judicial declaration was not even a
requirement then for purposes of remarriage.[46]
Eminent jurist Arturo M. Tolentino (now deceased) commented:
Where a person has entered into two successive marriages, a presumption
arises in favor of the validity of the second marriage, and the burden is on the party
attacking the validity of the second marriage to prove that the first marriage had not
been dissolved; it is not enough to prove the first marriage, for it must also be shown
that it had not ended when the second marriage was contracted. The presumption in
favor of the innocence of the defendant from crime or wrong and of the legality of his
second marriage, will prevail over the presumption of the continuance of life of the first
spouse or of the continuance of the marital relation with such first
spouse.[47] (Underscoring supplied)
 Under the Civil Code, a subsequent marriage being voidable,[48] it is terminated by final
judgment of annulment in a case instituted by the absent spouse who reappears or by either of the
spouses in the subsequent marriage.
Under the Family Code, no judicial proceeding to annul a subsequent marriage is
necessary. Thus Article 42 thereof provides:
Art. 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 and
underscoring supplied)
The termination of the subsequent marriage by affidavit provided by the above-quoted
provision of the Family Code does not preclude the filing of an action in court to prove the reappearance
of the absentee and obtain a declaration of dissolution or termination of the subsequent marriage. [49]
If the absentee reappears, but no step is taken to terminate the subsequent marriage, either
by affidavit or by court action, such absentees mere reappearance, even if made known to the spouses
in the subsequent marriage, will not terminate such marriage.[50] Since the second marriage has been
contracted because of a presumption that the former spouse is dead, such presumption continues inspite
of the spouses 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.[51]
If the subsequent marriage is not terminated by registration of an affidavit of reappearance or
by judicial declaration but by death of either spouse as in the case at bar, Tolentinosubmits:
x x x [G]enerally if a subsequent marriage is dissolved by the death of
either spouse, the effects of dissolution of valid marriages shall arise. The good or
bad faith of either spouse can no longer be raised, because, as in annullable
or voidable marriages, the marriage cannot be questioned except in a direct action
for annulment.[52] (Underscoring supplied)
Similarly, Lapuz v. Eufemio[53] instructs:
In fact, even if the bigamous marriage had not been void ab initio but
only voidable under Article 83, paragraph 2, of the Civil Code, because the second
marriage had been contracted with the first wife having been an absentee for seven
consecutive years, or when she had been generally believed dead, still the action for
annulment became extinguished as soon as one of the three persons involved had
died, as provided in Article 87, paragraph 2, of the Code, requiring that the action
for annulment should be brought during the lifetime of any one of the parties
involved. And furthermore, the liquidation of any conjugal partnership that might
have resulted from such voidable marriage must be carried out in the testate or
intestate proceedings of the deceased spouse, as expressly provided in Section 2 of
the Revised Rule 73, and not in the annulment proceeding.[54] (Emphasis and
underscoring supplied)
It bears reiterating that a voidable marriage cannot be assailed collaterally except in a direct
proceeding. Consequently, such marriages can be assailed only during the lifetime of the parties and not
after the death of either, in which case the parties and their offspring will be left as if the marriage had been
perfectly valid.[55] Upon the death of either, the marriage cannot be impeached, and is made
good ab initio.[56]
In the case at bar, as no step was taken to nullify, in accordance with law, Bailons and
respondents marriage prior to the formers death in 1998, respondent is rightfully the dependent spouse-
beneficiary of Bailon.
In light of the foregoing discussions, consideration of the other issues raised has been rendered
unnecessary.
WHEREFORE, the petition is DENIED. No costs. SO ORDERED.
G.R. No. 187061, October 08, 2014
CELERINA J. SANTOS, Petitioner, v. RICARDO T. SANTOS, Respondent.
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 judgment 14 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.
G.R. No. 210929, July 29, 2015
REPUBLIC OF THE PHILIPPINES, Petitioner, v. EDNA ORCELINO-VILLANUEVA, Respondent.
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.4chanrobleslaw
The Antecedents
Edna and Romeo were married on December 21, 1978, in Iligan City.
In 1992, Edna worked as domestic helper 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 Romeo's death.
Hence:chanRoblesvirtualLawlibrary
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. Biasbas9 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 Edna's 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.1
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 Edna's patent non-compliance with
the said requirement. The well-founded belief in the absentee's 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
spouse's whereabouts but, more importantly, whether the absent spouse is still alive or is already
dead.16chanrobleslaw
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 State's
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.17chanrobleslaw
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 3. She went as far as the birthplace of her husband in Escalante, Negros Oriental, so
petition. His efforts to locate his absent wife allegedly consisted of the she could inquire from her husband's relatives.
following:chanRoblesvirtualLawlibrary
(1) He went to his in-laws' house to look for her;
Despite her efforts, she averred that she received negative responses from them because none of them
(2) He sought the barangay captain's aid to locate her;
had knowledge of the existence of her husband who had been missing for 15 years.
(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;
Applying the standard set forth by the Court in the previously cited cases, particularly Cantor, Edna's
(5) He went back to Catbalogan and again looked for her; and
efforts failed to satisfy the required well-founded belief of her absent husband's death.
(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
Her claim of making diligent search and inquiries remained unfounded as it merely consisted of bare
explained that he failed to present the persons from whom he made inquiries and only reported his
assertions without any corroborative evidence on record. She also failed to present any person from
wife's absence after the OSG filed its notice to dismiss his petition in the RTC.
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
Similarly in Republic v. Granada,19 the Court ruled that the present spouse failed to prove her "well-
basic rule that mere allegation is not evidence and is not equivalent to proof, 21 the Court cannot give
founded belief" that her absent spouse was already dead prior to her filing of the petition. She simply did
credence to her claims that she indeed exerted diligent efforts to locate her husband.
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
Moreover, no document was submitted to corroborate the allegation that her husband had been missing
wrote:chanRoblesvirtualLawlibrary
for at least fifteen (15) years already. As the OSG observed, there was not even any attempt to seek the
The belief of the present spouse must be the result of proper and honest to goodness inquiries and
aid of the authorities at the time her husband disappeared. In Cantor, the present spouse claimed to
efforts to ascertain the whereabouts of the absent spouse and whether the absent spouse is still alive or
have sought the aid of the authorities or, at the very least, reported his absence to the police. 22 Yet, the
is already dead. Whether or not the spouse present acted on a well-founded belief of the death of the
Court denied her pleas.
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
Verily, it makes sense to conclude that her efforts were not diligent and serious enough to give meaning
present spouse.chanroblesvirtuallawlibrary
to her well-founded belief that Romeo was already dead. Suffice it to state that her petition should have
In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who had
been denied at the first instance. The RTC, however, granted it, reasoning
been missing for more than four years. He testified that his efforts to find her consisted
xxx that it was in 1993 when the petitioner while abroad heard the news from her children that her
of:chanRoblesvirtualLawlibrary
husband left their conjugal home xxx without informing the children nor communicating with the herein
(1) Searching for her whenever his ship docked in England;
petitioner as to the reasons why he left their family abode nor giving them any information as to his
(2) Sending her letters which were all returned to him; and
whereabouts; that herein petitioner took vacation/leave of absence from her work and return to the
(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless.
Philippines, in order to look for her husband and made some inquiries with her parents-in-law in Iligan
The Court held that the present spouse's methods of investigation were too sketchy to form a basis that
City, from their common friends in Iligan City and in Valencia City, and even went as far as the
his wife was already dead. It stated that the pieces of evidence only proved that his wife had chosen not
birthplace of her husband, particularly at Escalante, Negros Oriental, inquiring from her husband's
to communicate with their common acquaintances, and not that she was dead.
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
Recently, in Republic v. Cantor20 (Cantor), the Court considered the present spouse's efforts to have
fifteen [15] years have elapsed, the person and the body of petitioner's husband could not be found,
fallen short of the "stringent standard" and lacked the degree of diligence required by jurisprudence as
located nor traced as there is no any information as to his existence or whereabouts. 23
she did not actively look for her missing husband; that she did not report his absence to the police or
Worse, the CA affirmed the RTC decision when it dismissed the petition for certiorari filed by the OSG.
seek the aid of the authorities to look for him; that she did not present as witnesses her missing
The CA should have realized the glaring and patent disregard by the RTC of the rulings in similar
husband's relatives or their neighbors and friends, who could corroborate her efforts to locate him; that
situations where petitions for declaration of presumptive death have been denied by this Court. By
these persons, from whom she allegedly made inquiries, were not even named; and that there was no
declaring Romeo presumptively dead, the CA clearly ignored this Court's categorical pronouncements.
other corroborative evidence to support her claim that she conducted a diligent search. In the Court's
view, the wife merely engaged in a "passive search" where she relied on uncorroborated inquiries from
WHEREFORE, the petition is GRANTED. Accordingly, the October 18, 2013 Decision and the January
her in-laws, neighbors and friends. She, thus, failed to conduct a diligent search. Her claimed efforts
8, 2014 Resolution of the Court of Appeals are hereby REVERSED and SET ASIDE. The petition of
were insufficient to form a well-founded belief that her husband was already dead.
respondent Edna Orcelino-Villanueva to have her husband declared presumptively dead
is DENIED. SO ORDERED.
In this case, Edna claimed to have done the following to determine the whereabouts and the status of
her husband:chanRoblesvirtualLawlibraryx

1. She took a vacation/leave of absence from her work and returned to the Philippines G.R. No. 199194, February 10, 2016
to look for her husband.
REPUBLIC OF THE PHILIPPINES, Petitioner, v. JOSE B. SAREOGON, JR., Respondent.
2. She inquired from her parents-in-law in Iligan City and from their common friends in
the same city and in Valencia City.
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.7Sareogon (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.
11
Jose testified that he first met Netchie in Clarin, Misamis Occidental in 1991, 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. 22 These
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
34
The Republic filed the instant Petition 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 well-founded 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;
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.

(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,