SECOND DIVISION

[ G.R. No. 209741, April 15, 2015 ]

SOCIAL SECURITY COMMISSION, PETITIONER, VS. EDNA A. AZOTE, RESPONDENT.

DECISION

MENDOZA, J.:

This petition for review on certiorari[1] under Rule 45 of the Rules of Court filed by petitioner Social Security Commission
(SSC) assails the August 13, 2013 Decision[2] of the Court of Appeals (CA), and its October 29, 2013 Resolution[3] in CA-
G.R. SP No. 122933, allowing respondent Edna A. Azote (Edna) to claim the death benefits of her late husband, Edgardo
Azote (Edgardo).

The Antecedents:

On June 19, 1992, respondent Edna and Edgardo, a member of the Social Security System (SSS), were married in civil
rites at the Regional Trial Court, Branch 9, Legazpi City, Albay (RTC). Their union produced six children[4] born from 1985
to 1999. On April 27, 1994, Edgardo submitted Form E-4 to the SSS with Edna and their three older children as
designated beneficiaries. Thereafter or on September 7, 2001, Edgardo submitted another Form E-4 to the SSS
designating his three younger children as additional beneficiaries. [5]

On January 13, 2005, Edgardo passed away. Shortly thereafter, Edna filed her claim for death benefits with the SSS as
the wife of a deceased-member. It appeared, however, from the SSS records that Edgardo had earlier submitted
another Form E-4 on November 5, 1982 with a different set of beneficiaries, namely: Rosemarie Azote (Rosemarie), as
his spouse; and Elmer Azote (Elmer), as dependent, born on October 9, 1982. Consequently, Edna's claim was
denied. Her children were adjudged as beneficiaries and she was considered as the legal guardian of her minor
children. The benefits, however, would be stopped once a child would attain the age of 21. [6]

On March 13, 2007, Edna filed a petition with the SSC to claim the death benefits, lump sum and monthly pension of
Edgardo.[7] She insisted that she was the legitimate wife of Edgardo. In its answer, the SSS averred that there was a
conflicting information in the forms submitted by the deceased. Summons was published in a newspaper of general
circulation directing Rosemarie to file her answer. Despite the publication, no answer was filed and Rosemarie was
subsequently declared in default.[8]

In the Resolution,[9] dated December 8, 2010, the SSC dismissed Edna's petition for lack of merit. Citing Section 24(c) of
the SS Law, it explained that although Edgardo filed the Form E-4 designating Edna and their six children as beneficiaries,
he did not revoke the designation of Rosemarie as his wife-beneficiary, and Rosemarie was still presumed to be his
legal wife.

The SSC further wrote that the National Statistics Office (NSO) records revealed that the marriage of Edgardo to
one Rosemarie Teodora Sino was registered on July 28, 1982. Consequently, it opined that Edgardo's marriage to Edna
was not valid as there was no showing that his first marriage had been annulled or dissolved. The SSC stated that
there must be a judicial determination of nullity of a previous marriage before a party could enter into a second
marriage.[10]

In an order,[11] dated June 8, 2011, the SSC denied Edna's motion for reconsideration. It explained that it was
incumbent upon Edna to prove that her marriage to the deceased was valid, which she failed to do. It further opined
that Rosemarie could not be merely presumed dead, and that death benefits under the SSS could not be considered
properties which may be disposed of in a holographic will.[12]
In the assailed August 13, 2013 Decision, the CA reversed and set aside the resolution and the order of the SSC. It held
that the SSC could not make a determination of the validity or invalidity of the marriage of Edna to Edgardo
considering that no contest came from either Rosemarie or Elmer. [13]

The CA explained that Edna had established her right to the benefits by substantial evidence, namely, her marriage
certificate and the baptismal certificates of her children. [14] It ruled that Edgardo made a deliberate change of his wife-
beneficiary in his 1994 E-4 form, as such was clearly his voluntary act manifesting his intention to revoke his former
declaration in the 1982 E-4 form.[15] The 1994 E-4 form submitted by Edgardo, designating Edna as his wife,
superseded his former declaration in his 1982 E-4 form.[16]

It further opined that the Davac case cited by the SSC was not applicable because there were two conflicting claimants in
that case, both claiming to be wives of the deceased, while in this case, Edna was the sole claimant for the death
benefits, and that her designation as wife-beneficiary remained valid and unchallenged. It was of the view that
Rosemarie's non-appearance despite notice could be deemed a waiver to claim death benefits from the SSS, thereby
losing whatever standing she might have had to dispute Edna's claim. [17]

In the assailed October 29, 2013 Resolution,[18] the CA denied the SSC's motion for reconsideration.[19]

Hence, the present petition.

GROUNDS

RESPONDENT COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE COMMISSION IS BEREFT OF AUTHORITY TO
DETERMINE THE VALIDITY OR INVALIDITY OF THE MARRIAGE OF THE PRIVATE RESPONDENT AND MEMBER EDGARDO
AZOTE.

RESPONDENT COURT OF APPEALS GRAVELY ERRED IN GRANTING THE PETITION OF THE PRIVATE RESPONDENT AND
FINDING HER ENTITLED TO THE SS BENEFITS.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE DESIGNATION OF THE PRIVATE
RESPONDENT AS WIFE-BENEFICIARY IS VALID.[20]

The SSC argues that the findings of fact of the CA were not supported by the records. It submits that under Section 5 of
the SS Law, it is called upon to determine the rightful beneficiary in the performance of its quasi-judicial function of
adjudicating SS benefits. In fact, it cited a number of cases,[21] where the SSC had passed upon the validity of marriages
for the purpose of determining who were entitled to SS benefits.[22]

The SSC contends that Edna was not the legitimate spouse of deceased member Edgardo as the CA failed to consider the
NSO certification showing that Edgardo was previously married to Rosemarie. With the death certificate of
Rosemarie showing that she died only on November 6, 2004, it proved that she was alive at the time Edna and Edgardo
were married, and, therefore, there existed a legal impediment to his second marriage, rendering it void. Edna is,
therefore, not a legitimate spouse who is entitled to the death benefits of Edgardo. [23]

The SSC claims that the right to designate a beneficiary is subject to the SS Law. The designation of a wife-beneficiary
merely creates a disputable presumption that they are legally married and may be overthrown by evidence to the
contrary. Edna's designation became invalid with the determination of the subsistence of a previous marriage. The SSC
posits that even though Edgardo revoked and superseded his earlier designation of Rosemarie as beneficiary, his
designation of Edna was still not valid considering that only a legitimate spouse could qualify as a primary beneficiary. [24]

The Court's Ruling

The petition is meritorious.

The law in force at the time of Edgardo's death was Republic Act (R.A.) No. 8282,[25] the amendatory law of R.A. No. 1161
or the "Social Security Law." It is a tax-exempt social security service designed to promote social justice and provide
meaningful protection to members and their beneficiaries against the hazards of disability, sickness, maternity, old age,
death, and other contingencies resulting in loss of income or financial burden. [26] As a social security program of the
government, Section 8 (e) and (k) of the said law expressly provides who would be entitled to receive benefits from its
deceased-member, to wit:

SEC. 8. Terms Defined. - For purposes of this Act, the following terms shall, unless the context indicates otherwise, have
the following meanings:

xxxx

(e) Dependents - The dependents shall be the following:

(1) The legal spouse entitled by law to receive support from the member;

(2) The legitimate, legitimated or legally adopted, and illegitimate child who is unmarried, not gainfully employed, and
has not reached twenty-one (21) years of age, or if over twenty-one (21) years of age, he is congenitally or while still a
minor has been permanently incapacitated and incapable of self-support, physically or mentally; and

(3) The parent who is receiving regular support from the member.

xxxx

(k) Beneficiaries - The dependent spouse until he or she remarries, the dependent legitimate, legitimated or legally
adopted, and illegitimate children, who shall be the primary beneficiaries of the member: Provided, That the dependent
illegitimate children shall be entitled to fifty percent (50%) of the share of the legitimate, legitimated or legally adopted
children: Provided, further, That in the absence of the dependent legitimate, legitimated children of the member, his/her
dependent illegitimate children shall be entitled to one hundred percent (100%) of the benefits. In their absence, the
dependent parents who shall be the secondary beneficiaries of the member. In the absence of all the foregoing, any
other person designated by the member as his/her secondary beneficiary. (Emphasis supplied)

Applying Section 8(e) and (k) of R. A. No. 8282, it is clear that only the legal spouse of the deceased-member is qualified
to be the beneficiary of the latter's SS benefits. In this case, there is a concrete proof that Edgardo contracted an earlier
marriage with another individual as evidenced by their marriage contract. Edgardo even acknowledged his married
status when he filled out the 1982 Form E-4 designating Rosemarie as his spouse.[27]

It is undisputed that the second marriage of Edgardo with Edna was celebrated at the time when the Family Code was
already in force. Article 41 of the Family Code expressly states:

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. (Emphasis and underscoring supplied)

Using the parameters outlined in Article 41 of the Family Code, Edna, without doubt, failed to establish that there was
no impediment or that the impediment was already removed at the time of the celebration of her marriage to
Edgardo. Settled is the rule that "whoever claims entitlement to the benefits provided by law should establish his or
her right thereto by substantial evidence."[28] Edna could not adduce evidence to prove that the earlier marriage of
Edgardo was either annulled or dissolved or whether there was a declaration of Rosemarie's presumptive death before
her marriage to Edgardo. What is apparent is that Edna was the second wife of Edgardo. Considering that Edna was not
able to show that she was the legal spouse of a deceased-member, she would not qualify under the law to be the
beneficiary of the death benefits of Edgardo.

The Court does not subscribe to the disquisition of the CA that the updated Form E-4 of Edgardo was determinative of
Edna's status and eligibility to claim the death benefits of deceased-member. Although an SSS member is free to
designate a beneficiary, the designation must always conform to the statute. To blindly rely on the form submitted by
the deceased-member would subject the entire social security system to the whims and caprices of its members and
would render the SS Law inutile.

Although the SSC is not intrinsically empowered to determine the validity of marriages, it is required by Section 4(b)
(7) of R.A. No. 8282[29] to examine available statistical and economic data to ensure that the benefits fall into the
rightful beneficiaries. As held in Social Security Commission vs. Favila,[30]

SSS, as the primary institution in charge of extending social security protection to workers and their beneficiaries is
mandated by Section 4(b)(7) of RA 8282 to require reports, compilations and analyses of statistical and economic data
and to make an investigation as may be needed for its proper administration and development. Precisely, the
investigations conducted by SSS are appropriate in order to ensure that the benefits provided under the SS Law are
received by the rightful beneficiaries. It is not hard to see that such measure is necessary for the system's proper
administration, otherwise, it will be swamped with bogus claims that will pointlessly deplete its funds. Such scenario will
certainly frustrate the purpose of the law which is to provide covered employees and their families protection against
the hazards of disability, sickness, old age and death, with a view to promoting their well-being in the spirit of social
justice. Moreover and as correctly pointed out by SSC, such investigations are likewise necessary to carry out the
mandate of Section 15 of the SS Law which provides in part, viz:
Sec. 15. Non-transferability of Benefits. The SSS shall pay the benefits provided for in this Act to such [x x x] persons as
may be entitled thereto in accordance with the provisions of this Act x x x. (Emphasis supplied.)

The existence of two Form E-4s designating, on two different dates, two different women as his spouse is already an
indication that only one of them can be the legal spouse. As can be gleaned from the certification issued by the
NSO,[31] there is no doubt that Edgardo married Rosemarie in 1982. Edna cannot be considered as the legal spouse of
Edgardo as their marriage took place during the existence of a previously contracted marriage. For said reason, the
denial of Edna's claim by the SSC was correct. It should be emphasized that the SSC determined Edna's eligibility on the
basis of available statistical data and documents on their database as expressly permitted by Section 4(b) (7) of R.A. No.
8282.

It is of no moment that the first wife, Rosemarie, did not participate or oppose Edna's claim. Rosemarie's non-
participation or her subsequent death on November 11, 2004[32] did not cure or legitimize the status of Edna.

WHEREFORE, the petition is GRANTED. The August 13, 2013 Decision and the October 29, 2013 Resolution of the Court
of Appeals in CA-G.R. SP No. 122933 are REVERSED and SET ASIDE. Accordingly, the petition for entitlement of SS death
benefits filed by respondent Edna Azote is DENIED for lack of merit.

SO ORDERED.
DIVISION

[ GR No. 182760, Apr 10, 2013 ]

REPUBLIC v. ROBERT P. NARCEDA +

RESOLUTION

G.R. No. 182760

SERENO, C.J.:

The present case stems from a Petition for Review[1] filed by the Republic of the Philippines (petitioner), praying for the
reversal of the Decision[2] of the Court of Appeals (CA) dated 14 November 2007 and its subsequent Resolution [3] dated
29 April 2008. The CA dismissed the appeal of petitioner, because it supposedly lacked jurisdiction to decide the matter.
It held that the Decision[4] of the Regional Trial Court of Balaoan, La Union (RTC) declaring the presumptive death of
Marina B. Narceda (Marina) was immediately final and executory, "because by express provision of law, the judgment of
the RTC is not appealable."[5]

Robert P. Narceda (respondent) married Marina on 22 July 1987. A reading of the Marriage Contract [6] he presented will
reveal that at the time of their wedding, Marina was only 17 years and 4 months old.

According to respondent, Marina went to Singapore sometime in 1994 and never returned since.[7] There was never
any communication between them. He tried to look for her, but he could not find her. Several years after she left, one
of their town mates in Luna, La Union came home from Singapore and told him that the last time she saw his wife, the
latter was already living with a Singaporean husband.[8]

In view of her absence and his desire to remarry,[9] respondent filed with the RTC on 16 May 2002 a Petition for a
judicial declaration of the presumptive death and/or absence of Marina.[10]

The RTC granted respondent's Petition in a Decision[11] dated 5 May 2005, the dispositive portion of which reads:

WHEREFORE, premises considered, the Court hereby renders judgment declaring the PRESUMPTIVE DEATH of MARINA
B. NARCEDA for all legal intents and purposes of law as provided for in Rule 131, Sec. 3(w-4), Rules of Court, without
prejudice to the effect of re-appearance of the absent spouse.

SO ORDERED.[12]

Petitioner, through the Office of the Solicitor General (OSG), appealed the foregoing Decision to the CA. According to
petitioner, respondent failed to conduct a search for his missing wife with the diligence required by law and enough to
give rise to a "well-founded" belief that she was dead.[13]

The CA dismissed the appeal ruling that the hearing of a petition for the declaration of presumptive death is a summary
proceeding under the Family Code and is thus governed by Title XI thereof. [14] Article 247 of the Family Code provides
that the judgment of the trial court in summary court proceedings shall be immediately final and executory. The
dispositive portion of the CA Decision reads:

WHEREFORE, premises considered, the instant appeal is hereby DISMISSED OUTRIGHT on the GROUND OF LACK OF
JURISDICTION, and this Court hereby reiterates the fact that the RTC Decision is immediately final and
executory because by express provision of law, the judgment of the RTC is not appealable.

SO ORDERED.[15]

The OSG filed a Motion for Reconsideration, but it was likewise denied through the CA's 29 April 2008 Resolution. [16]

Petitioner now comes to this Court, through Rule 45, alleging as follows:

1. The Court of Appeals erred in dismissing the Petition on the ground of lack of jurisdiction. [17]

2. Respondent has failed to establish a well-founded belief that his absentee spouse is dead.[18]

The OSG insists that the CA had jurisdiction to entertain the Petition, because respondent had failed to establish a well-
founded belief that his absentee spouse was dead.[19] The OSG cites Republic v. CA (Jomoc),[20] in which this Court ruled:

By the trial court's citation of Article 41 of the Family Code, it is gathered that the petition of Apolinaria Jomoc to have
her absent spouse declared presumptively dead had for its purpose her desire to contract a valid subsequent marriage.
Ergo, the petition for that purpose is a "summary proceeding," following above-quoted Art. 41, paragraph 2 of the
Family Code.

xxxx

there is no doubt that the petition of Apolinaria Jomoc required, and is, therefore, a summary proceeding under the
Family Code, not a special proceeding under the Revised Rules of Court appeal for which calls for the filing of a Record
on Appeal. It being a summary ordinary proceeding, the filing of a Notice of Appeal from the trial court's order sufficed.
(Emphasis in the original)[21]

The CA points out, however, that because the resolution of a petition for the declaration of presumptive death requires
a summary proceeding, the procedural rules to be followed are those enumerated in Title XI of the Family Code. Articles
238, 247, and 253 thereof read:

Art. 238. Until modified by the Supreme Court, the procedural rules provided for in this Title shall apply as regards
separation in fact between husband and wife, abandonment by one of the other, and incidents involving parental
authority.

xxxx

Art. 247. The judgment of the court shall be immediately final and executory.
xxxx

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.

The appellate court argues that there is no reglementary period within which to perfect an appeal in summary judicial
proceedings under the Family Code, because the judgments rendered thereunder, by express provision of Article 247,
are immediately final and executory upon notice to the parties.[22] In support of its stance, it cited Republic v. Bermudez-
Lorino (Bermudez-Lorino),[23] in which this Court held:

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." It was erroneous, therefore, on the part of the RTC to give due course to the
Republic's 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. [24]

We agree with the CA.

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.

This Court has already declared in Republic v. Granda[25] that Jomoc cannot be interpreted as having superseded our
pronouncements in Bermudez-Lorino, because Jomoc does not expound on the characteristics of a summary proceeding
under the Family Code; Bermudez-Lorino, however, squarely touches upon the impropriety of an ordinary appeal as a
vehicle for questioning a trial court's decision in a summary proceeding for the declaration of presumptive death under
Article 41 of the Family Code.[26]

As explained in Republic v. Tango,[27] the remedy of a losing party in a summary proceeding is not an ordinary appeal, but
a petition for certiorari, to wit:
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.

When the OSG filed its notice of appeal under Rule 42, it availed itself of the wrong remedy. As a result, the running of
the period for filing of a Petition for Certiorari continued to run and was not tolled. Upon lapse of that period, the
Decision of the RTC could no longer be questioned. Consequently, petitioner's contention that respondent has failed to
establish a well-founded belief that his absentee spouse is dead[28] may no longer be entertained by this Court.

WHEREFORE, the instant Petition is DENIED. The 14 November 2007 Decision of the Court Appeals and its subsequent
29 April 2008 Resolution in CA-G.R. CV No. 85704, dismissing the appeal of the Republic of the Philippines
are AFFIRMED.

The Decision of the Regional Trial Court of Balaoan, La Union in Special Proceeding No. 622 dated 5 May 2005 declaring
the presumptive death of Marina B. Narceda is hereby declared FINAL and EXECUTORY.

SO ORDERED.
G.R. No. 199194

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
JOSE B. SAREÑOGON, 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).2

This Petition for Review on Certiorari3assails 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. Sareñogon, Jr. (Jose) filed a Petition5 before the Regional Trial Court (RTC) of
Ozamiz6 City-Branch 15 for the declaration of presumptive death of his wife, Netchie S. 7 Sareñogon (Netchie).8

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.10

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.20

Jose’s testimony was corroborated by his older brother Joel Sareñogon, and by Netchie’s aunt, Consuelo Sande.21These
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.23

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:

VIEWED IN THE LIGHT OF THE FOREGOING, judgment is hereby rendered declaring respondent presumptively dead for
purposes of remarriage of petitioner.

SO ORDERED.27

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 CA then disposed of the case in this wise:

WHEREFORE, the petition for certiorari is dismissed.

SO ORDERED.33

Issues

The Republic filed the instant Petition34 raising the following issues:

THE HONORABLE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN ITS ASSAILED DECISION BECAUSE:

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.

II

THE ALLEGED EFFORTS OF RESPONDENT IN LOCATING HIS MISSING WIFE DO NOT SUFFICIENTLY SUPPORT A
"WELLFOUNDED BELIEF" THAT RESPONDENT’S ABSENT WIFE X X X IS PROBABLY DEAD. 35

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. 36

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.41

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. 42

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. 47

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. 50

We expounded on this appellate procedure in Republic v. Tango:51

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. 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 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."53

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 RTC’s Decision declaring the presumptive death of Marina B. Narceda. 55

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 RTC’s Order therein declaring Jerry Cantor as presumptively dead.1âwphi1

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 RTC’s 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:

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:

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:

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 has "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:

x x x [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. x x x

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. x x x

x x x [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) 62

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 that 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-G.R. SP No.
04158-MIN is REVERSED AND SET ASIDE. The respondent’s Petition in said Spec. Proc. No. 045-08 is
accordingly DISMISSED.

SO ORDERED.
FIRST DIVISION

[ G.R. No. 214243, March 16, 2016 ]

REPUBLIC OF PHILIPPINES, THE PETITIONER, VS. NILDA B. TAMPUS, RESPONDENT.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari[1] are the Decision[2] dated June 17, 2013 and the Resolution[3] dated
September 2, 2014 rendered by the Court of Appeals (CA) in CA-G.R. SP No. 04588, which affirmed the Decision[4] dated
July 29, 2009 of the Regional Trial Court of Lapu-Lapu City, Branch 54 (RTC) declaring respondent's spouse, Dante L. Del
Mundo, as presumptively dead.

The Facts

Respondent Nilda B. Tampus (Nilda) was married to Dante L. Del Mundo (Dante) on November 29, 1975 in Cordova,
Cebu. The marriage ceremony was solemnized by Municipal Judge Julian B. Pogoy of Cordova, Cebu. [5] Three days
thereafter, or on December 2, 1975, Dante, a member of the Armed Forces of the Philippines (AFP), left respondent, and
went to Jolo, Sulu where he was assigned. The couple had no children. [6]

Since then, Nilda heard no news from Dante,. She tried everything to locate him, but her efforts proved futile. [7] Thus, on
April 14, 2009, she filed before the RTC a petition[8] to declare Dante as presumptively dead for the purpose of
remarriage, alleging that after the lapse of thirty-three (33) years without any kind of communication from him, she
firmly believes that he is already dead.[9]

Due to the absence of any oppositor, Nilda was allowed to present her evidence ex parte. She testified on the allegations
in her petition, affirming that she exerted efforts to find Dante by inquiring from his parents, relatives, and neighbors,
who, unfortunately, were also not aware of his whereabouts. She averred that she intends to remarry and move on with
her life.[10]

The RTC Ruling

In a Decision[11] dated July 29, 2009, the RTC granted Nilda's petition and declared Dante as presumptively dead for all
legal purposes, without prejudice to the effect of his reappearance. It found that Dante left the conjugal dwelling
sometime in 1975 and from then on, Nilda never heard from him again despite diligent efforts to locate him. In this light,
she believes that he had passed away especially since his last assignment was a combat mission. Moreover, the RTC
found that the absence of thirty-three (33) years was sufficient to give rise to the presumption of death. [12]
Dissatisfied, the Office of the Solicitor General (OSG), on behalf of petitioner Republic of the Philippines (Republic), filed
a petition for certiorari[13] before the CA assailing the RTC Decision.

The CA Ruling

In a Decision[14] dated June 17, 2013, the CA denied the OSG's petition and affirmed the RTC Decision declaring Dante as
presumptively dead. The CA gave credence to the RTC's findings that Nilda had exerted efforts to find her husband by
inquiring from his parents, relatives, and neighbors, who likewise had no knowledge of his whereabouts. Further, the
lapse of thirty-three (33) years, coupled with the fact that Dante had been sent on a combat mission to Jolo, Sulu, gave
rise to Nilda's well-founded belief that her husband is already dead.[15]

Moreover, the CA opined that if Dante were still alive after many years, it would have been easy for him to communicate
with Nilda, taking into consideration the fact that Dante was only 25 years old when he left and, therefore, would have
been still physically able to get in touch with his wife. However, because neither Nilda nor his own family has heard from
him for several years, it can be reasonably concluded that Dante is already dead. [16]

The OSG's motion for reconsideration was denied in a Resolution dated September 2, 2014; hence, this petition.

The Issue Before the Court

The sole issue for the Court's resolution is whether or not the CA erred in upholding the RTC Decision declaring Dante as
presumptively dead.

The Court's Ruling

The petition has merit.

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[19] of the Family Code of the Philippines (Family Code), there are four (4) essential requisites for
the declaration of presumptive death: (1) that the absent spouse has been missing for four (4) consecutive years, or two
(2) 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.[20]

The burden of proof rests on the present spouse to show that all the foregoing requisites under Article 41 of the Family
Code exist. 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.[21]
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
passive one. As such, the mere absence of the spouse for such periods prescribed under the law, lack of any news that
such absentee spouse is still alive, failure to communicate, or general presumption of absence under the Civil Code
would not suffice.[22] 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 latter is still alive or is already dead. [23]

In this case, Nilda testified that after Dante's disappearance, she tried to locate him by making inquiries with his parents,
relatives, and neighbors as to his whereabouts, but unfortunately, they also did not know where to find him. Other than
making said inquiries, however, Nilda made no further efforts to find her husband. She could have called or proceeded
to the AFP headquarters to request information about her husband, but failed to do so. She did not even seek the help
of the authorities or the AFP itself in finding him. Considering her own pronouncement that Dante was sent by the AFP
on a combat mission to Jolo, Sulu at the time of his disappearance, she could have inquired from the AFP on the status of
the said mission, or from the members of the AFP who were assigned thereto. To the Court's mind, therefore, Nilda
failed to actively look for her missing husband, and her purported earnest efforts to find him by asking Dante's parents,
relatives, and friends did not satisfy the strict standard and degree of diligence required to create a "well-founded belief
of his death.

Furthermore, Nilda did not present Dante's family, relatives, or neighbors as witnesses who could have corroborated her
asseverations that she earnestly looked for Dante. These resource persons were not even named. In Republic v.
Nolasco,[24] it was held that the present spouse's bare assertion that he inquired from his friends about his absent
spouse's whereabouts was found insufficient as the names of said friends were not identified in the testimony nor
presented as witnesses.[25]

Finally, other than Nilda's bare testimony, no other corroborative evidence had been offered to support her allegation
that she exerted efforts to find him but was unsuccessful. What appears from the facts as established in this case was
that Nilda simply allowed the passage of time without actively and diligently searching for her husband, which the Court
cannot accept as constituting a "well-founded belief that her husband is 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 the present spouse.[26]

In fine, having fallen short of the stringent standard and degree of due diligence required by jurisprudence to support
her claim of a "well-founded belief that her husband Dante is already dead, the instant petition must be granted.

WHEREFORE, the petition is GRANTED. Accordingly, the Decision dated June 17, 2013 and the Resolution dated
September 2, 2014 rendered by the Court of Appeals in CA-G.R. SP No. 04588 are hereby REVERSED and SET ASIDE. The
petition of respondent Nilda B. Tampus to have her husband, Dante L. Del Mundo, declared presumptively dead
is DENIED.

SO ORDERED.
SECOND DIVISION

[ G.R. No. 187061, October 08, 2014 ]

CELERINA J. SANTOS, PETITIONER, VS. 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.[2]

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. [4]

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.[8]

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.[11]

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.[12]

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. [13]

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.[18]

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. [24]

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.[26]

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.[28]

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.[30]

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.[33]

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.[34]

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."[36]

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:[38]
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.[42]

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. [44]

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 judgment[45] 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. [46]

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.[47]

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:

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.[50]

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 noted[52] 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."[54]

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:

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 belief[56] 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.[58]

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.[59]

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." [60]

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. [63]

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.