G.R. No. 94053 March 17, 1993 Jose, Antique.
Jose, Antique. Alicia Nolasco also said that she had tried to
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.
The Solicitor General for plaintiff-appellee.
Warloo G. Cardenal for respondent.
RESOLUTION
FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco filed before
the Regional Trial Court of Antique, Branch 10, a petition for
the declaration of presumptive death of his wife Janet Monica
Parker, invoking Article 41 of the Family Code. The petition
prayed that respondent's wife be declared presumptively
dead or, in the alternative, that the marriage be declared null
1
and void.
The Republic of the Philippines opposed the petition through
the Provincial Prosecutor of Antique who had been deputized
to assist the Solicitor-General in the instant case. The
Republic argued, first, that Nolasco did not possess a "well-
founded belief that the absent spouse was already
2
dead," and second, Nolasco's attempt to have his marriage
annulled in the same proceeding was a "cunning attempt" to
circumvent the law on marriage.
3 allegations are made:
During trial, respondent Nolasco testified that he was a
seaman and that he had first met Janet Monica Parker, a
British subject, in a bar in England during one of his ship's
port calls. From that chance meeting onwards, Janet Monica
Parker lived with respondent Nolasco on his ship for six (6)
months until they returned to respondent's hometown of San
Jose, Antique on 19 November 1980 after his seaman's
contract expired. On 15 January 1982, respondent married
Janet Monica Parker in San Jose, Antique, in Catholic rites
officiated by Fr. Henry van Tilborg in the Cathedral of San
Jose.
Respondent Nolasco further testified that after the marriage
celebration, he obtained another employment contract as a
seaman and left his wife with his parents in San Jose,
Antique. Sometime in January 1983, while working overseas,
respondent received a letter from his mother informing him
that Janet Monica had given birth to his son. The same letter
informed him that Janet Monica had left Antique. Respondent
claimed he then immediately asked permission to leave his
ship to return home. He arrived in Antique in November 1983.
Respondent further testified that his efforts to look for her
himself whenever his ship docked in England proved fruitless.
He also stated that all the letters he had sent to his missing
spouse at No. 38 Ravena Road, Allerton, Liverpool, England,
the address of the bar where he and Janet Monica first met,
were all returned to him. He also claimed that he inquired
from among friends but they too had no news of Janet
Monica.
On cross-examination, respondent stated that he had lived
with and later married Janet Monica Parker despite his lack of
knowledge as to her family background. He insisted that his
wife continued to refuse to give him such information even
after they were married. He also testified that he did not
report the matter of Janet Monica's disappearance to the
Philippine government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco,
as his witness. She testified that her daughter-in-law Janet
Monica had expressed a desire to return to England even
before she had given birth to Gerry Nolasco on 7 December
1982. When asked why her daughter-in-law might have
wished to leave Antique, respondent's mother replied that
Janet Monica never got used to the rural way of life in San
dissuade Janet Monica from leaving as she had given birth to
her son just fifteen days before, but when she (Alicia) failed to
do so, she gave Janet Monica P22,000.00 for her expenses
before she left on 22 December 1982 for England. She
further claimed that she had no information as to the missing
person's present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated
12 October 1988 the dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the Family
Code of the Philippines (Executive Order No. 209, July 6,
1987, as amended by Executive Order No. 227, July 17,
1987) this Court hereby declares as presumptively dead
Janet Monica Parker Nolasco, without prejudice to her
4
reappearance.
The Republic appealed to the Court of Appeals contending
that the trial court erred in declaring Janet Monica Parker
presumptively dead because respondent Nolasco had failed
to show that there existed a well founded belief for such
declaration.
The Court of Appeals affirmed the trial court's decision,
holding that respondent had sufficiently established a basis to
form a belief that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before
this Court on a Petition for Review where the following
1. The Court of Appeals erred in affirming the trial court's
finding that there existed a well-founded belief on the part
of Nolasco that Janet Monica Parker was already dead;
and
2. The Court of Appeals erred in affirming the trial Court's
declaration that the petition was a proper case of the
declaration of presumptive death under Article 41, Family
5
Code.
The issue before this Court, as formulated by petitioner is
"[w]hether or not Nolasco has a well-founded belief that his
6
wife is already dead."
The present case was filed before the trial court pursuant to
Article 41 of the Family Code which 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 provision 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. (Emphasis supplied).
When Article 41 is compared with the old provision of the
7
Civil Code, which it superseded, the following crucial
differences emerge. Under Article 41, the time required for
the presumption to arise has been shortened to four (4)
years; however, there is need for a judicial declaration of
presumptive death to enable the spouse present to
8
remarry. Also, Article 41 of the Family Code imposes a
stricter standard than the Civil Code: Article 83 of the Civil
Code merely requires either that there be no news that such
absentee is still alive; or the absentee is generally considered
to be dead and believed to be so by the spouse present, or
is presumed dead under Article 390 and 391 of the Civil
9 15
Code. The Family Code, upon the other hand, prescribes
as "well founded belief" that the absentee is already
dead before a petition for declaration of presumptive death
can be granted.
As pointed out by the Solicitor-General, there are four (4)
requisites for the declaration of presumptive death under
Article 41 of the Family Code:
1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil
Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief
that the absentee is dead; and
4. That the present spouse files a summary proceeding
for the declaration of presumptive death of the
10
absentee.
Respondent naturally asserts that he had complied with all
11
these requirements.
Petitioner's argument, upon the other hand, boils down to
this: that respondent failed to prove that he had complied with
the third requirement, i.e., the existence of a "well-founded
belief" that the absent spouse is already dead.
The Court believes that respondent Nolasco failed to conduct
a search for his missing wife with such diligence as to give
rise to a "well-founded belief" that she is dead.
12
United States v. Biasbas, is instructive as to degree of
diligence required in searching for a missing spouse. In that
case, defendant Macario Biasbas was charged with the crime
of bigamy. He set-up the defense of a good faith belief that
his first wife had already died. The Court held that defendant
had not exercised due diligence to ascertain the whereabouts
of his first wife, noting that:
While the defendant testified that he had made inquiries
concerning the whereabouts of his wife, he fails to state
of whom he made such inquiries. He did not even write
to the parents of his first wife, who lived in the Province
of Pampanga, for the purpose of securing information
concerning her whereabouts. He admits that he had a
suspicion only that his first wife was dead. He admits
that the only basis of his suspicion was the fact that she
had been absent. . . .
13
In the case at bar, the Court considers that the investigation
allegedly conducted by respondent in his attempt to ascertain
Janet Monica Parker's whereabouts is too sketchy to form the
basis of a reasonable or well-founded belief that she was
already dead. When he arrived in San Jose, Antique after
learning of Janet Monica's departure, instead of seeking the
14
help of local authorities or of the British Embassy, he
secured another seaman's contract and went to London, a
vast city of many millions of inhabitants, to look for her there.
Q After arriving here in San Jose, Antique, did you exert
efforts to inquire the whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?
A I secured another contract with the ship and we had a
trip to London and I went to London to look for her I
could not find her (sic). (Emphasis supplied)
Respondent's testimony, however, showed that he confused
London for Liverpool and this casts doubt on his supposed
efforts to locate his wife in England. The Court of Appeal's
justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily
know the geographical difference between London and
Liverpool, for a humble seaman like Gregorio the two
places could mean one — place in England, the port
where his ship docked and where he found Janet. Our
own provincial folks, every time they leave home to visit
relatives in Pasay City, Kalookan City, or Parañaque,
would announce to friends and relatives, "We're going
to Manila." This apparent error in naming of places of
16
destination does not appear to be fatal.
is not well taken. There is no analogy between Manila and its
neighboring cities, on one hand, and London and Liverpool,
on the other, which, as pointed out by the Solicitor-General,
are around three hundred fifty (350) kilometers apart. We do
not consider that walking into a major city like Liverpool or
London with a simple hope of somehow bumping into one
particular person there — which is in effect what Nolasco
says he did — can be regarded as a reasonably diligent
search.
The Court also views respondent's claim that Janet Monica
declined to give any information as to her personal
17
background even after she had married respondent too
convenient an excuse to justify his failure to locate her. The
same can be said of the loss of the alleged letters respondent
had sent to his wife which respondent claims were all
returned to him. Respondent said he had lost these returned
letters, under unspecified circumstances.
Neither can this Court give much credence to respondent's
bare assertion that he had inquired from their friends of her
whereabouts, considering that respondent did not identify
those friends in his testimony. The Court of Appeals ruled
that since the prosecutor failed to rebut this evidence during
trial, it is good evidence. But this kind of evidence cannot, by
its nature, be rebutted. In any case, admissibility is not
18
synonymous with credibility. As noted before, there are
serious doubts to respondent's credibility. Moreover, even if
admitted as evidence, said testimony merely tended to show
that the missing spouse had chosen not to communicate with
their common acquaintances, and not that she was dead.
Respondent testified that immediately after receiving his
mother's letter sometime in January 1983, he cut short his
employment contract to return to San Jose, Antique.
However, he did not explain the delay of nine (9) months from
January 1983, when he allegedly asked leave from his
captain, to November 1983 when be finally reached San
Jose. Respondent, moreover, claimed he married Janet
Monica Parker without inquiring about her parents and their
19
place of residence. Also, respondent failed to explain why
he did not even try to get the help of the police or other
authorities in London and Liverpool in his effort to find his
wife. The circumstances of Janet Monica's departure and
respondent's subsequent behavior make it very difficult to
regard the claimed belief that Janet Monica was dead a well-
founded one.
In Goitia v. Campos-Rueda,
20
the Court stressed that:
. . . Marriage is an institution, the maintenance of which in
its purity the public is deeply interested. It is a
relationship for life and the parties cannot terminate it at
any shorter period by virtue of any contract they make. .
21
. . . (Emphasis supplied)
By the same token, the spouses should not be allowed, by
the simple expedient of agreeing that one of them leave the
conjugal abode and never to return again, to circumvent the
policy of the laws on marriage. The Court notes that
respondent even tried to have his marriage annulled before
the trial court in the same proceeding.
22
In In Re Szatraw, the Court warned against such collusion
between the parties when they find it impossible to dissolve
the marital bonds through existing legal means.
While the Court understands the need of respondent's young
son, Gerry Nolasco, for maternal care, still the requirements
of the law must prevail. Since respondent failed to satisfy the
clear requirements of the law, his petition for a judicial
declaration of presumptive death must be denied. The law
does not view marriage like an ordinary contract. Article 1 of
the Family Code emphasizes that.
. . . Marriage is a special contract of permanent
union between a man and a woman entered into in
accordance with law for the establishment of conjugal and
family life. It is the foundation of the familyand
an inviolable social institution whose nature,
consequences, and incidents are governed by law
and not subject to stipulation, except that marriage
settlements may fix the property relations during the
marriage within the limits provided by this Code.
(Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals,
23
the Court stressed
strongly the need to protect.
. . . the basic social institutions of marriage and the
family in the preservation of which the State bas the
strongest interest; the public policy here involved is of
the most fundamental kind. In Article II, Section 12 of
the Constitution there is set forth the following basic
state policy:
The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic
autonomous social institution. . . .
The same sentiment bas been expressed in the Family
Code of the Philippines in Article 149:
The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and
protects. Consequently, family relations are governed
by law and no custom, practice or agreement
destructive of the family shall be recognized or given
24
effect.
In fine, respondent failed to establish that he had the well-
founded belief required by law that his absent wife was
already dead that would sustain the issuance of a court order
declaring Janet Monica Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23
February 1990, affirming the trial court's decision declaring
Janet Monica Parker presumptively dead is hereby
REVERSED and both Decisions are hereby NULLIFIED and
SET ASIDE. Costs against respondent.
ANTONIA ARMAS Y CALISTERIO, petitioner,
vs. MARIETTA CALISTERIO, respondent.
DECISION
VITUG, J.:
On 24 April 1992, Teodorico Calisterio died intestate, leaving
several parcels of land with an estimated value of
P604,750.00. Teodorico was survived by his wife, herein
respondent Marietta Calisterio. Esm
Teodorico was the second husband of Marietta who had
previously been married to James William Bounds on 13
January 1946 at Caloocan City. James Bounds disappeared
without a trace on 11 February 1947. Teodorico and Marietta
were married eleven years later, or on 08 May 1958, without
Marietta having priorly secured a court declaration that
James was presumptively dead. Esmsc
On 09 October 1992, herein petitioner Antonia Armas y
Calisterio, a surviving sister of Teodorico, filed with the
Regional Trial Court ("RTC") of Quezon City, Branch 104, a
petition entitled, "In the Matter of Intestate Estate of the
Deceased Teodorico Calisterio y Cacabelos, Antonia Armas,
Petitioner," claiming to be inter alia, the sole surviving heir of
Teodorico Calisterio, the marriage between the latter and
respondent Marietta Espinosa Calisterio being allegedly
bigamous and thereby null and void. She prayed that her son
Sinfroniano C. Armas, Jr., be appointed administrator, without
bond, of the estate of the deceased and that the inheritance
be adjudicated to her after all the obligations of the estate
would have been settled.
Respondent Marietta opposed the petition. Marietta stated
that her first marriage with James Bounds had been
dissolved due to the latter's absence, his whereabouts being
unknown, for more than eleven years before she contracted
her second marriage with Teodorico. Contending to be the
surviving spouse of Teodorico, she sought priority in the
administration of the estate of the decedent. Esmmis
On 05 February 1993, the trial court issued an order
appointing jointly Sinfroniano C. Armas, Jr., and respondent
Marietta administrator and administratrix, respectively, of the
intestate estate of Teodorico.
On 17 January 1996, the lower court handed down its
decision in favor of petitioner Antonia; it adjudged:
"WHEREFORE, judgment is hereby rendered finding for
the petitioner and against the oppositor whereby herein
petitioner, Antonia Armas y Calisterio, is declared as the
sole heir of the estate of Teodorico Calisterio y
[1]
Cacabelos."
Respondent Marietta appealed the decision of the trial court
to the Court of Appeals, formulating that-
"1. The trial court erred in applying the provisions of the
Family Code in the instant case despite the fact that the
controversy arose when the New Civil Code was the law
in force.
"2. The trial court erred in holding that the marriage
between oppositor-appellant and the deceased
Teodorico Calisterio is bigamous for failure of the former
to secure a decree of the presumptive death of her first
spouse.
"3. The trial court erred in not holding that the property
situated at No. 32 Batangas Street, San Francisco del
Monte, Quezon City, is the conjugal property of the
oppositor-appellant and the deceased Teodorico
Calisterio. Esmso
 "4. The trial court erred in holding that oppositor-
appellant is not a legal heir of deceased Teodorico
Calisterio.
"5. The trial court erred in not holding that letters of
administration should be granted solely in favor of
oppositor-appellant."
[2]
On 31 August 1998, the appellate court, through Mr. Justice
Conrado M. Vasquez, Jr., promulgated its now assailed
decision, thus:
"IN VIEW OF ALL THE FOREGOING, the Decision
appealed from is REVERSED AND SET ASIDE, and a
new one entered declaring as follows:
"(a) Marietta Calisterio's marriage to Teodorico remains
valid;
"(b) The house and lot situated at #32 Batangas Street,
San Francisco del Monte, Quezon City, belong to the
conjugal partnership property with the concomitant
obligation of the partnership to pay the value of the land
to Teodorico's estate as of the time of the taking;
"(c) Marietta Calisterio, being Teodorico's compulsory
heir, is entitled to one half of her husband's estate, and
Teodorico's sister, herein petitioner Antonia Armas and
her children, to the other half; Msesm
"(d) The trial court is ordered to determine the
competence of Marietta E. Calisterio to act as
administrator of Teodorico's estate, and if so found
competent and willing, that she be appointed as such;
otherwise, to determine who among the deceased's
next of kin is competent and willing to become the
administrator of the estate."
[3]
On 23 November 1998, the Court of Appeals denied
petitioner's motion for reconsideration, prompting her to
interpose the present appeal. Petitioner asseverates:
"It is respectfully submitted that the decision of the
Court of Appeals reversing and setting aside the
decision of the trial court is not in accord with the law
or with the applicable decisions of this Honorable
[4]
Court."
It is evident that the basic issue focuses on the validity of the
marriage between the deceased Teodorico and respondent
Marietta, that, in turn, would be determinative of her right as a
surviving spouse. Exsm
The marriage between the deceased Teodorico and
respondent Marietta was solemnized on 08 May 1958. The
law in force at that time was the Civil Code, not the Family
Code which took effect only on 03 August 1988. Article 256 of
[5]
the Family Code itself limited its retroactive governance
only to cases where it thereby would not prejudice or impair
vested or acquired rights in accordance with the Civil Code or
other laws.
Verily, the applicable specific provision in the instant
controversy is Article 83 of the New Civil Code which
provides: Kyle
"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."
Under the foregoing provisions, 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. Paragraph (2) of the law gives exceptions from the
above rule. For the subsequent marriage referred to in the
three exceptional cases therein provided, to be held valid, the
spouse present (not the absentee spouse) so contracting the
[6]
later marriage must have done so in good faith. Bad faith
imports a dishonest purpose or some moral obliquity and
conscious doing of wrong - it partakes of the nature of fraud,
a breach of a known duty through some motive of interest or
[7]
ill will. The Court does not find these circumstances to be
here extant. Kycalr
A judicial declaration of absence of the absentee spouse is
[8]
not necessary as long as the prescribed period of absence
is met. It is equally noteworthy that the marriage in these
exceptional cases are, by the explicit mandate of Article 83,
to be deemed valid "until declared null and void by a
competent court." It follows that the burden of proof would be,
in these cases, on the party assailing the second
marriage. Calrky
In contrast, under the 1988 Family Code, in order that a
subsequent bigamous marriage may exceptionally be
considered valid, the following conditions must concur; viz.:
(a) The prior spouse of the contracting party must have been
absent for four consecutive years, or two years where there is
danger of death under the circumstances stated in Article 391
of the Civil Code at the time of disappearance; (b) the spouse
present has a well-founded belief that the absent spouse is
already dead; and (c) there is, unlike the old rule, a judicial
declaration of presumptive death of the absentee for which
purpose the spouse present can institute a summary
proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the
requirement of judicial intervention in subsequent marriages
[9] [10]
as so provided in Article 41 , in relation to Article 40, of
the Family Code. Mesm
In the case at bar, it remained undisputed that respondent
Marietta's first husband, James William Bounds, had been
absent or had disappeared for more than eleven years before
she entered into a second marriage in 1958 with the
deceased Teodorico Calisterio. This second marriage, having
been contracted during the regime of the Civil Code, should
thus be deemed valid notwithstanding the absence of a
judicial declaration of presumptive death of James Bounds.
The conjugal property of Teodorico and Marietta, no evidence
having been adduced to indicate another property regime
between the spouses, pertains to them in common. Upon its
dissolution with the death of Teodorico, the property should
rightly be divided in two equal portions -- one portion going to
the surviving spouse and the other portion to the estate of the
deceased spouse. The successional right in intestacy of a
[11]
surviving spouse over the net estate of the deceased,
concurring with legitimate brothers and sisters or nephews
and nieces (the latter by right of representation), is one-half of
the inheritance, the brothers and sisters or nephews and
nieces, being entitled to the other half. Nephews and nieces,
however, can only succeed by right of representation in the
presence of uncles and aunts; alone, upon the other hand,
nephews and nieces can succeed in their own right which is
to say that brothers or sisters exclude nephews and nieces
except only in representation by the latter of their parents
who predecease or are incapacitated to succeed. The
appellate court has thus erred in granting, in paragraph (c) of
the dispositive portion of its judgment, successional rights, to
petitioner's children, along with their own mother Antonia who
herself is invoking successional rights over the estate of her
deceased brother. Slx
WHEREFORE, the assailed judgment of the Coin of Appeals
in CA G.R. CV No. 51574 is AFFIRMED except insofar only
as it decreed in paragraph (c) of the dispositive portion
thereof that the children of petitioner are likewise entitled,
along with her, to the other half of the inheritance, in lieu of
which, it is hereby DECLARED that said one-half share of the
decedent's estate pertains solely to petitioner to the exclusion
of her own children. No costs.
SO ORDERED.
EDUARDO MANUEL vs. PEOPLE
CALLEJO, SR., J.:
Before us is a petition for review on certiorari of the
[1]
Decision of the Court of Appeals (CA) in CA-G.R. CR No.
[2]
26877, affirming the Decision of the Regional Trial Court
(RTC) of Baguio City, Branch 3, convicting Eduardo P.
Manuel of bigamy in Criminal Case No. 19562-R.
Eduardo was charged with bigamy in an Information filed on
November 7, 2001, the accusatory portion of which reads:
nd
That on or about the 22 day of April, 1996, in the
City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-
named accused EDUARDO P. MANUEL, being
then previously and legally married to RUBYLUS
[GAA] and without the said marriage having been
legally dissolved, did then and there willfully,
unlawfully and feloniously contract a second
marriage with TINA GANDALERA-MANUEL,
herein complainant, who does not know the
existence of the first marriage of said EDUARDO
P. MANUEL to Rubylus [Gaa].
[3]
CONTRARY TO LAW.
The prosecution adduced evidence that on July 28, 1975,
Eduardo was married to Rubylus Gaa before Msgr. Feliciano
Santos in Makati, which was then still a municipality of the
[4]
Province of Rizal. He met the private complainant Tina B.
Gandalera in Dagupan City sometime in January 1996. She
stayed in Bonuan, Dagupan City for two days looking for a
friend. Tina was then 21 years old, a Computer Secretarial
student, while Eduardo was 39. Afterwards, Eduardo went to
Baguio City to visit her. Eventually, as one thing led to
another, they went to a motel where, despite Tinas
resistance, Eduardo succeeded in having his way with her.
Eduardo proposed marriage on several occasions, assuring
her that he was single. Eduardo even brought his parents to
Baguio City to meet Tinas parents, and was assured by them
that their son was still single.
Tina finally agreed to marry Eduardo sometime in
the first week of March 1996. They were married on April 22,
1996 before Judge Antonio C. Reyes, the Presiding Judge of
[5]
the RTC of Baguio City, Branch 61. It appeared in their
marriage contract that Eduardo was single.
The couple was happy during the first three years of
their married life. Through their joint efforts, they were able to
build their home in Cypress Point, Irisan, Baguio City.
However, starting 1999, Manuel started making himself
scarce and went to their house only twice or thrice a year.
Tina was jobless, and whenever she asked money from
[6]
Eduardo, he would slap her. Sometime in January 2001,
Eduardo took all his clothes, left, and did not return. Worse,
he stopped giving financial support.
Sometime in August 2001, Tina became curious and
made inquiries from the National Statistics Office (NSO) in
Manila where she learned that Eduardo had been previously
married. She secured an NSO-certified copy of the marriage
[7]
contract. She was so embarrassed and humiliated when
she learned that Eduardo was in fact already married when
[8]
they exchanged their own vows.
For his part, Eduardo testified that he met Tina sometime in
1995 in a bar where she worked as a Guest Relations Officer
(GRO). He fell in love with her and married her. He informed
Tina of his previous marriage to Rubylus Gaa, but she
nevertheless agreed to marry him. Their marital relationship
was in order until this one time when he noticed that she had
a love-bite on her neck. He then abandoned her. Eduardo
further testified that he declared he was single in his marriage
contract with Tina because he believed in good faith that his
first marriage was invalid. He did not know that he had to go
to court to seek for the nullification of his first marriage before
marrying Tina.
Eduardo further claimed that he was only forced to
marry his first wife because she threatened to commit suicide
unless he did so. Rubylus was charged with estafa in 1975
and thereafter imprisoned. He visited her in jail after three
months and never saw her again. He insisted that he married
Tina believing that his first marriage was no longer valid
because he had not heard from Rubylus for more than 20
years.
After trial, the court rendered judgment on July 2, 2002
finding Eduardo guilty beyond reasonable doubt of bigamy.
He was sentenced to an indeterminate penalty of from six (6)
years and ten (10) months, as minimum, to ten (10) years, as
maximum, and directed to indemnify the private complainant
Tina Gandalera the amount of P200,000.00 by way of moral
[9]
damages, plus costs of suit.
The trial court ruled that the prosecution was able to prove
beyond reasonable doubt all the elements of bigamy under
Article 349 of the Revised Penal Code. It declared that
Eduardos belief, that his first marriage had been dissolved
because of his first wifes 20-year absence, even if true, did
not exculpate him from liability for bigamy. Citing the ruling of
[10]
this Court in People v. Bitdu, the trial court further ruled
that even if the private complainant had known that Eduardo
had been previously married, the latter would still be
criminally liable for bigamy.
Eduardo appealed the decision to the CA. He
alleged that he was not criminally liable for bigamy because
when he married the private complainant, he did so in good
faith and without any malicious intent. He maintained that at
the time that he married the private complainant, he was of
the honest belief that his first marriage no longer subsisted.
He insisted that conformably to Article 3 of the Revised Penal
Code, there must be malice for one to be criminally liable for
a felony. He was not motivated by malice in marrying the
private complainant because he did so only out of his
overwhelming desire to have a fruitful marriage. He posited
that the trial court should have taken into account Article 390
of the New Civil Code. To support his view, the appellant
cited the rulings of this Court in United States v.
[11] [12]
Pealosa and Manahan, Jr. v. Court of Appeals.
The Office of the Solicitor General (OSG) averred
that Eduardos defense of good faith and reliance on the
[13]
Courts ruling in United States v. Enriquez were misplaced;
what is applicable is Article 41 of the Family Code, which
amended Article 390 of the Civil Code. Citing the ruling of this
[14]
Court in Republic v. Nolasco, the OSG further posited that
as provided in Article 41 of the Family Code, there is a need
for a judicial declaration of presumptive death of the
absentspouse to enable the present spouse to marry. Even
assuming that the first marriage was void, the parties thereto
should not be permitted to judge for themselves the nullity of
the marriage;
the matter should be submitted to the proper court for
resolution. Moreover, the OSG maintained, the private
complainants knowledge of the first marriage would not afford
any relief since bigamy is an offense against the State and
not just against the private complainant.
However, the OSG agreed with the appellant that
the penalty imposed by the trial court was erroneous and
sought the affirmance of the decision appealed from with
modification.
On June 18, 2004, the CA rendered judgment affirming the
decision of the RTC with modification as to the penalty of the
accused. It ruled that the prosecution was able to prove all
the elements of bigamy. Contrary to the contention of the
appellant, Article 41 of the Family Code should apply. Before
Manuel could lawfully marry the private complainant, there
should have been a judicial declaration of Gaas presumptive
death as the absent spouse. The appellate court cited the
[15]
rulings of this Court in Mercado v. Tan and Domingo v.
[16]
Court of Appeals to support its ruling. The dispositive
portion of the decision reads:
WHEREFORE, in the light of the foregoing, the
Decision promulgated on July 31, 2002 is
hereby MODIFIED to reflect, as it hereby
reflects, that accused-appellant is sentenced to
an indeterminate penalty of two (2) years, four
(4) months and one (1) day of prision
correccional, as minimum, to ten (10) years
of prision mayor as maximum. Said Decision
is AFFIRMED in all other respects.
[17]
SO ORDERED.
Eduardo, now the petitioner, filed the instant petition for
review on certiorari, insisting that:
I proceedings.
THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR OF LAW WHEN IT RULED
THAT PETITIONERS FIRST WIFE CANNOT BE
LEGALLY PRESUMED DEAD UNDER ARTICLE
390 OF THE CIVIL CODE AS THERE WAS NO
JUDICIAL DECLARATION OF PRESUMPTIVE
DEATH AS PROVIDED FOR UNDER ARTICLE
41 OF THE FAMILY CODE.
II
THE COURT OF APPEALS COMMITTED
REVERSIBLE ERROR OF LAW WHEN IT
AFFIRMED THE AWARD OF PHP200,000.00 AS
MORAL DAMAGES AS IT HASNO BASIS
[18]
IN FACT AND IN LAW.
The petitioner maintains that the prosecution failed to prove
the second element of the felony, i.e., that the marriage has
not been legally dissolved or, in case his/her spouse is
absent, the absent spouse could not yet be presumed dead
under the Civil Code. He avers that when he married
Gandalera in 1996, Gaa had been absent for 21 years since
1975; under Article 390 of the Civil Code, she was presumed
dead as a matter of law. He points out that, under the first
paragraph of Article 390 of the Civil Code, one who has been
absent for seven years, whether or not he/she is still alive,
shall be presumed dead for all purposes except for
succession, while the second paragraph refers to the rule on
legal presumption of death with respect to succession.
The petitioner asserts that the presumptive death of
the absent spouse arises by operation of law upon the
satisfaction of two requirements: the
specified period and the present spouses reasonable belief
that the absentee is dead. He insists that he was able to
prove that he had not heard from his first wife since 1975 and
that he had no knowledge of her whereabouts or whether she
was still alive; hence, under Article 41 of the Family Code, the
presumptive death of Gaa had arisen by operation of law, as
the two requirements of Article 390 of the Civil Code are
present. The petitioner concludes that he should thus be
acquitted of the crime of bigamy.
The petitioner insists that except for the period of
absences provided for in Article 390 of the Civil Code, the
rule therein on legal presumptions remains valid and
effective. Nowhere under Article 390 of the Civil Code does it
require that there must first be a judicial declaration of death
before the rule on presumptive death would apply. He further
asserts that contrary to the rulings of the trial and appellate
courts, the requirement of a judicial declaration of
presumptive death under Article 41 of the Family Code is only
a requirement for the validity of the subsequent or second
marriage.
The petitioner, likewise, avers that the trial court and the CA
erred in awarding moral damages in favor of the private
complainant. The private complainant was a GRO before he
married her, and even knew that he was already married. He
genuinely loved and took care of her and gave her financial
support. He also pointed out that she had an illicit relationship
with a lover whom she brought to their house.
In its comment on the petition, the OSG maintains that the
decision of the CA affirming the petitioners conviction is in
accord with the law, jurisprudence and the evidence on
record. To bolster its claim, the OSG cited the ruling of this
[19]
Court in Republic v. Nolasco.
The petition is denied for lack of merit.
Article 349 of the Revised Penal Code, which defines and
penalizes bigamy, reads:
Art. 349. Bigamy. The penalty of prision
mayor shall be imposed upon any person who
shall contract a second or subsequent
marriage before the former marriage has been
legally dissolved, or before the absent spouse
has been declared presumptively dead by
means of a judgment rendered in the proper
The provision was taken from Article 486 of the Spanish
Penal Code, to wit:
El que contrajere Segundo o ulterior
matrimonio sin hallarse legtimamente
disuelto el anterior, ser castigado con la pena
de prision mayor. xxx
The reason why bigamy is considered a felony is to preserve
and ensure the juridical tie of marriage established by
[20]
law. The phrase or before the absent spouse had been
declared presumptively dead by means of a judgment
rendered in the proper proceedings was incorporated in the
Revised Penal Code because the drafters of the law were of
the impression that in consonance with the civil law which
provides for the presumption of death after an absence of a
number of years, the judicial declaration of presumed
death like annulment of marriage should be a justification
[21]
for bigamy.
For the accused to be held guilty of bigamy, the prosecution
is burdened to prove the felony: (a) he/she has been legally
married; and (b) he/she contracts a subsequent marriage
without the former marriage having been lawfully dissolved.
The felony is consummated on the celebration of the second
[22]
marriage or subsequent marriage. It is essential in the
prosecution for bigamy that the alleged second marriage,
having all the essential requirements, would be valid were it
[23]
not for the subsistence of the first marriage. Viada avers
that a third element of the crime is that the second marriage
must be entered into with fraudulent intent (intencion
fraudulente) which is an essential element of a felony
[24]
by dolo. On the other hand, Cuello Calon is of the view that
there are only two elements of bigamy: (1) the existence of a
marriage that has not been lawfully dissolved; and (2) the
celebration of a second marriage. It does not matter whether
the first marriage is void or voidable because such marriages
have juridical effects until lawfully dissolved by a court of
[25]
competent jurisdiction. As the Court ruled in Domingo v.
[26] [27]
Court of Appeals and Mercado v. Tan, under the Family
Code of the Philippines, the judicial declaration of nullity of a
previous marriage is a defense.
In his commentary on the Revised Penal Code,
Albert is of the same view as Viada and declared that there
are three (3) elements of bigamy: (1) an undissolved
marriage; (2) a new marriage; and (3) fraudulent intention
[28]
constituting the felony of the act. He explained that:
 This last element is not stated in Article 349,
because it is undoubtedly incorporated in the
principle antedating all codes, and, constituting
one of the landmarks of our Penal Code, that,
where there is no willfulness there is no crime.
There is no willfulness if the subject
believes that the former marriage has been
dissolved; and this must be supported by very
strong evidence, and if this be produced, the act
shall be deemed not to constitute a crime. Thus,
a person who contracts a second marriage in the
reasonable and well-founded belief that his first
wife is dead, because of the many years that
have elapsed since he has had any news of her
whereabouts, in spite of his endeavors to find
her, cannot be deemed guilty of the crime of
bigamy, because there is no fraudulent intent
which is one of the essential elements of the
[29]
crime.
As gleaned from the Information in the RTC, the petitioner is
charged with bigamy, a felony by dolo (deceit). Article 3,
paragraph 2 of the Revised Penal Code provides that there is
deceit when the act is performed with deliberate intent.
Indeed, a felony cannot exist without intent. Since a felony
by dolo is classified as an intentional felony, it is deemed
[30]
voluntary. Although the words with malice do not appear in
Article 3 of the Revised Penal Code, such phrase is included
[31]
in the word voluntary.
Malice is a mental state or condition prompting the
doing of an overt act without legal excuse or justification from
[32]
which another suffers injury. When the act or omission
defined by law as a felony is proved to have been done or
committed by the accused, the law presumes it to have been
[33]
intentional. Indeed, it is a legal presumption of law that
every man intends the natural or probable consequence of
his voluntary act in the absence of proof to the contrary, and
such presumption must prevail unless a reasonable doubt
[34]
exists from a consideration of the whole evidence.
For one to be criminally liable for a felony by dolo, there must
be a confluence of both an evil act and an evil intent. Actus
[35]
non facit reum, nisi mens sit rea.
In the present case, the prosecution proved that the petitioner
was married to Gaa in 1975, and such marriage was not
judicially declared a nullity; hence, the marriage is presumed
[36]
to subsist. The prosecution also proved that the petitioner
married the private complainant in 1996, long after the
effectivity of the Family Code.
The petitioner is presumed to have acted with
malice or evil intent when he married the private complainant.
As a general rule, mistake of fact or good faith of the accused
is a valid defense in a prosecution for a felony by dolo; such
defense negates malice or criminal intent. However,
ignorance of the law is not an excuse because everyone is
presumed to know the law. Ignorantia legis neminem
excusat.
It was the burden of the petitioner to prove his
defense that when he married the private complainant in
1996, he was of the well-grounded belief
that his first wife was already dead, as he had not heard from
her for more than 20 years since 1975. He should have
adduced in evidence a decision of a competent court
declaring the presumptive death of his first wife as required
by Article 349 of the Revised Penal Code, in relation to Article
41 of the Family Code. Such judicial declaration also
constitutes proof that the petitioner acted in good faith, and
would negate criminal intent on his part when he married the
private complainant and, as a consequence, he could not be
held guilty of bigamy in such case. The petitioner, however,
failed to discharge his burden.
The phrase or before the absent spouse has been
declared presumptively dead by means of a judgment
rendered on the proceedings in Article 349 of the Revised
Penal Code was not an aggroupment of empty or useless
words. The requirement for a judgment of the presumptive
death of the absent spouse is for the benefit of the spouse
present, as protection from the pains and the consequences
of a second marriage, precisely because he/she could be
charged and convicted of bigamy if the defense of good faith
based on mere testimony is found incredible.
The requirement of judicial declaration is also for the
benefit of the State. Under Article II, Section 12 of the
Constitution, the State shall protect and strengthen the family
as a basic autonomous social institution. Marriage is a social
institution of the highest importance. Public policy, good
morals and the interest of society require that the marital
relation should be surrounded with every safeguard and its
severance only in the manner prescribed and the causes
[37]
specified by law. The laws regulating civil marriages are
necessary to serve the interest, safety, good order, comfort or
general welfare of the community and the parties can waive
nothing essential to the validity of the proceedings. A civil
marriage anchors an ordered society by encouraging stable
relationships over transient ones; it enhances the welfare of
the community.
In a real sense, there are three parties to every civil
marriage; two willing spouses and an approving State. On
marriage, the parties assume new relations to each other and
the State touching nearly on every aspect of life and death.
The consequences of an invalid marriage to the parties, to
innocent parties and to society, are so serious that the law
may well take means calculated to ensure the procurement of
the most positive evidence of death of the first spouse or of
[38]
the presumptive death of the absent spouse after the lapse
of the period provided for under the law. One such means is
the requirement of the declaration by a competent court of
the presumptive death of an absent spouse as proof that the
present spouse contracts a subsequent marriage on a well-
grounded belief of the death of the first spouse. Indeed, men
readily believe what they wish to be true, is a maxim of the
old jurists. To sustain a second marriage and to vacate a first
because one of the parties believed the other to be dead
would make the existence of the marital relation
determinable, not by certain extrinsic facts, easily capable of
forensic ascertainment and proof, but by the subjective
[39]
condition of individuals. Only with such proof can marriage
be treated as so dissolved as to permit second
[40]
marriages. Thus, Article 349 of the Revised Penal Code
has made the dissolution of marriage dependent not only
upon the personal belief of parties, but upon certain objective
facts easily capable of accurate judicial
[41]
cognizance, namely, a judgment of the presumptive death
of the absent spouse.
The petitioners sole reliance on Article 390 of the
Civil Code as basis for his acquittal for bigamy is misplaced.
Articles 390 and 391 of the Civil Code provide:
Art. 390. After an absence of seven years, it
being unknown whether or not, the absentee
still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead
for the purpose of opening his succession till
after an absence of ten years. If he
disappeared after the age of seventy-five
years, an absence of five years shall be
sufficient in order that his succession may be
opened.
Art. 391. The following shall be presumed
dead for all purposes, including the division of
the estate among the heirs:
(1) A person on board a vessel lost during a
sea voyage, or an aeroplane which is
missing, who has not been heard of for
four years since the loss of the vessel
or aeroplane;
(2) A person in the armed forces who has taken
part in war, and has been missing for
four years;
 (3) A person who has been in danger of death
under other circumstances and his
existence has not been known for four
years.
The presumption of death of the spouse who had
been absent for seven years, it being unknown whether or
not the absentee still lives, is created by law and arises
[42]
without any necessity of judicial declaration. However,
Article 41 of the Family Code, which amended the foregoing
rules on presumptive death, reads:
Art. 41. A marriage contracted by any person during
the subsistence of a previous marriage shall be null
and void, unless before the celebration of the
subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse
present had a well-founded belief that the absent
spouse was already dead. In case of disappearance
where there is danger 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 Court for the declaration of
presumptive death of the absentee, without prejudice
to the effect of reappearance of the absent
[43]
spouse.
[44]
With the effectivity of the Family Code, the period
of seven years under the first paragraph of Article 390 of the
Civil Code was reduced to four consecutive years. Thus,
before the spouse present may contract a subsequent
marriage, he or she must institute summary proceedings for
the declaration of the presumptive death of the absentee
[45]
spouse, without prejudice to the effect of the reappearance
of the absentee spouse. As explained by this Court in Armas
[46]
v. Calisterio:
In contrast, under the 1988 Family Code, in order
that a subsequent bigamous marriage may
exceptionally be considered valid, the following
conditions must concur, viz.: (a) The prior spouse of
the contracting party must have been absent for four
consecutive years, or two years where there is danger
of death under the circumstances stated in Article 391
of the Civil Code at the time of disappearance; (b) the
spouse present has a well-founded belief that the
absent spouse is already dead; and (c) there is, unlike
the old rule, a judicial declaration of presumptive death
of the absentee for which purpose the spouse present
can institute a summary proceeding in court to ask for
that declaration. The last condition is consistent and in
consonance with the requirement of judicial
intervention in subsequent marriages as so provided in
Article 41, in relation to Article 40, of the Family Code.
The Court rejects petitioners contention that the
requirement of instituting a petition for declaration of
presumptive death under Article 41 of the Family Code is
designed merely to enable the spouse present to contract a
valid second marriage and not for the acquittal of one
charged with bigamy. Such provision was designed to
harmonize civil law and Article 349 of the Revised Penal
Code, and put to rest the confusion spawned by the rulings of
this Court and comments of eminent authorities on Criminal
Law.
As early as March 6, 1937, this Court ruled in Jones
[47]
v. Hortiguela that, for purposes of the marriage law, it is not
necessary to have the former spouse judicially declared an
absentee before the spouse present may contract a
subsequent marriage. It held that the declaration of absence
made in accordance with the provisions of the Civil Code has
for its sole purpose the taking of the necessary precautions
for the administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only requires
that the former spouse had been absent for seven
consecutive years at the time of the second marriage, that
the spouse present does not know his or her former spouse
to be living, that such former spouse is generally reputed to
be dead and the spouse present so believes at the time of
[48] [49]
the celebration of the marriage. In In Re Szatraw, the
Court declared that a judicial declaration that a person is
presumptively dead, because he or she had been unheard
from in seven years, being a presumption juris tantum only,
subject to contrary proof, cannot reach the stage of finality or
become final; and that proof of actual death of the person
presumed dead being unheard from in seven years, would
have to be made in another proceeding to have such
particular fact finally determined. The Court ruled that if a
judicial decree declaring a person presumptively dead
because he or she had not been heard from in seven years
cannot become final and executory even after the lapse of
the reglementary period within which an appeal may be
taken, for such presumption is still disputable and remains
subject to contrary proof, then a petition for such a
declaration is useless, unnecessary, superfluous and of no
benefit to the petitioner. The Court stated that it should not
waste its valuable time and be made to perform a superfluous
[50]
and meaningless act. The Court also took note that a
petition for a declaration of the presumptive death of an
absent spouse may even be made in collusion with the other
spouse.
[51]
In Lukban v. Republic of the Philippines, the Court
declared that the words proper proceedings in Article 349 of
the Revised Penal Code can only refer to those authorized by
law such as Articles 390 and 391 of the Civil Code which
refer to the administration or settlement of the estate of a
deceased person. In Gue v. Republic of the
[52]
Philippines, the Court rejected the contention of the
petitioner therein that, under Article 390 of the Civil Code, the
courts are authorized to declare the presumptive death of a
person after an absence of seven years. The Court reiterated
its rulings in Szatraw, Lukban and Jones.
Former Chief Justice Ramon C. Aquino was of the
view that the provision of Article 349 or before the absent
spouse has been declared presumptively dead by means of a
judgment reached in the proper proceedings is erroneous
and should be considered as not written. He opined that such
provision presupposes that, if the prior marriage has not been
legally dissolved and the absent first spouse has not been
declared presumptively dead in a proper court proceedings,
the subsequent marriage is bigamous. He maintains that the
[53]
supposition is not true. A second marriage is bigamous
only when the circumstances in paragraphs 1 and 2 of Article
[54]
83 of the Civil Code are not present. Former Senator
Ambrosio Padilla was, likewise, of the view that Article 349
seems to require judicial decree of dissolution or judicial
declaration of absence but even with such decree, a second
marriage in good faith will not constitute bigamy. He posits
that a second marriage, if not illegal, even if it be annullable,
[55]
should not give rise to bigamy. Former Justice Luis B.
Reyes, on the other hand, was of the view that in the case of
an absent spouse who could not yet be presumed dead
according to the Civil Code, the spouse present cannot be
charged and convicted of bigamy in case he/she contracts a
[56]
second marriage.
The Committee tasked to prepare the Family Code
proposed the amendments of Articles 390 and 391 of the
Civil Code to conform to Article 349 of the Revised Penal
Code, in that, in a case where a spouse is absent for the
requisite period, the present spouse may contract a
subsequent marriage only after securing a judgment
declaring the presumptive death of the absent spouse to
avoid being charged and convicted of bigamy; the present
spouse will have to adduce evidence that he had a well-
founded belief that the absent spouse was already
[57]
dead. Such judgment is proof of the good faith of the
present spouse who contracted a subsequent marriage; thus,
even if the present spouse is later charged with bigamy if the
absentee spouse reappears, he cannot be convicted of the
crime. As explained by former Justice Alicia Sempio-Diy:
Such rulings, however, conflict with Art. 349 of the
Revised Penal Code providing that the present spouse
must first ask for a declaration of presumptive death of
 the absent spouse in order not to be guilty of bigamy in
case he or she marries again.
The above Article of the Family Code now
clearly provides that for the purpose of the present
spouse contracting a second marriage, he or she must
file a summary proceeding as provided in the Code for
the declaration of the presumptive death of the
absentee, without prejudice to the latters reappearance.
This provision is intended to protect the present spouse
from a criminal prosecution for bigamy under Art. 349 of
the Revised Penal Code because with the judicial
declaration that the missing spouses presumptively
dead, the good faith of the present spouse in contracting
[58]
a second marriage is already established.
Of the same view is former Dean Ernesto L. Pineda
(now Undersecretary of Justice) who wrote that things are
now clarified. He says judicial declaration of presumptive
death is now authorized for purposes of
remarriage. The present spouse must institute a summary
proceeding for declaration of presumptive death of the
absentee, where the ordinary rules of procedure in trial will
not be followed. Affidavits will suffice, with possible
clarificatory examinations of affiants if the Judge finds it
necessary for a full grasp of the facts. The judgment
declaring an absentee as presumptively dead is without
prejudice to the effect of reappearance of the said absentee.
Dean Pineda further states that before, the weight of
authority is that the clause before the absent spouse has
been declared presumptively dead x x x should be
disregarded because of Article 83, paragraph 3 of the Civil
Code. With the new law, there is a need to institute a
summary proceeding for the declaration of the presumptive
[59]
death of the absentee, otherwise, there is bigamy.
According to Retired Supreme Court Justice Florenz D.
Regalado, an eminent authority on Criminal Law, in some
cases where an absentee spouse is believed to be dead,
there must be a judicial declaration of presumptive death,
which could then be made only in the proceedings for the
[60]
settlement of his estate. Before such declaration, it was
held that the remarriage of the other spouse is bigamous
[61]
even if done in good faith. Justice Regalado opined that
there were contrary views because of the ruling in Jones and
the provisions of Article 83(2) of the Civil Code, which,
however, appears to have been set to rest by Article 41 of the
Family Code, which requires a summary hearing for the
declaration of presumptive death of the absent spouse before
the other spouse can remarry.
Under Article 238 of the Family Code, a petition for a
declaration of the presumptive death of an absent spouse
under Article 41 of the Family Code may be filed under
[62]
Articles 239 to 247 of the same Code.
On the second issue, the petitioner, likewise, faults the trial
court and the CA for awarding moral damages in favor of the
private complainant. The petitioner maintains that moral
damages may be awarded only in any of the cases provided
in Article 2219 of the Civil Code, and bigamy is not one of
them. The petitioner asserts that the appellate court failed to
[63]
apply its ruling in People v. Bondoc, where an award of
moral damages for bigamy was disallowed. In any case, the
petitioner maintains, the private complainant failed to adduce
evidence to prove moral damages.
The appellate court awarded moral damages to the
private complainant on its finding that she adduced evidence
to prove the same. The appellate court ruled that while
bigamy is not included in those cases enumerated in Article
2219 of the Civil Code, it is not proscribed from awarding
moral damages against the petitioner. The appellate court
ruled that it is not bound by the following ruling in People v.
Bondoc:
... Pero si en dichos asuntos se
adjudicaron daos, ello se debi
indedublamente porque el articulo 2219 del
Cdigo Civil de Filipinas autoriza la
adjudicacin de daos morales en los delitos
de estupro, rapto, violacin, adulterio o
concubinato, y otros actos lascivos, sin
incluir en esta enumeracin el delito de
bigamia. No existe, por consiguiente, base
legal para adjudicar aqu los daos
[64]
de P5,000.00 arriba mencionados.
The OSG posits that the findings and ruling of the
CA are based on the evidence and the law. The OSG,
likewise, avers that the CA was not bound by its ruling
in People v. Rodeo.
The Court rules against the petitioner.
Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and similar
injury. Though incapable of pecuniary computation, moral
damages may be recovered if they are the proximate result of
[65]
the defendants wrongful act or omission. An award for
moral damages requires the confluence of the following
conditions: first, there must be an injury, whether physical,
mental or psychological, clearly sustained by the
claimant; second, there must be culpable act or omission
factually established; third, the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by
the claimant; and fourth, the award of damages is predicated
on any of the cases stated in Article 2219 or Article 2220 of
[66]
the Civil Code.
Moral damages may be awarded in favor of the
offended party only in criminal cases enumerated in Article
2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and
analogous cases, viz.:
Art. 2219. Moral damages may be
recovered in the following and analogous
cases.
(1) A criminal offense resulting in physical
injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other
lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of
defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21,
26, 27, 28, 29, 30, 32, 34 and 35.
The parents of the female seduced, abducted,
raped, or abused, referred to in No. 3 of this
article, may also recover moral damages.
The spouse, descendants, ascendants, and
brothers and sisters may bring the action
mentioned in No. 9 of this article in the order
named.
Thus, the law does not intend that moral damages should be
awarded in all cases where the aggrieved party has suffered
mental anguish, fright, moral anxieties, besmirched
reputation, wounded feelings, moral shock, social humiliation
and similar injury arising out of an act or omission of another,
otherwise, there would not have been any reason for the
[67]
inclusion of specific acts in Article 2219 and analogous
cases (which refer to those cases bearing analogy or
resemblance, corresponds to some others or resembling, in
[68]
other respects, as in form, proportion, relation, etc.)
Indeed, bigamy is not one of those specifically
mentioned in Article 2219 of the Civil Code in which the
offender may be ordered to pay moral damages to the private
complainant/offended party. Nevertheless, the petitioner is
liable to the private complainant for moral damages under
Article 2219 in relation to Articles 19, 20 and 21 of the Civil
Code.
 According to Article 19, every person must, in the
exercise of his rights and in the performance of his act with
justice, give everyone his due, and observe honesty and
good faith. This provision contains what is commonly referred
to as the principle of abuse of rights, and sets certain
standards which must be observed not only in the exercise of
ones rights but also in the performance of ones duties. The
standards are the following: act with justice; give everyone
his due; and observe honesty and good faith. The elements
for abuse of rights are: (a) there is a legal right or duty; (b)
exercised in bad faith; and (c) for the sole intent of prejudicing
[69]
or injuring another.
Article 20 speaks of the general sanctions of all
other provisions of law which do not especially provide for its
own sanction. When a right is exercised in a manner which
does not conform to the standards set forth in the said
provision and results in damage to another, a legal wrong is
thereby committed for which the wrongdoer must be
[70]
responsible. If the provision does not provide a remedy for
its violation, an action for damages under either Article 20 or
Article 21 of the Civil Code would be proper. Article 20
provides that every person who, contrary to law, willfully or
negligently causes damage to another shall indemnify the
latter for the same. On the other hand, Article 21 provides
that any person who willfully causes loss or injury to another
in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for damages. The
latter provision
is adopted to remedy the countless gaps in the statutes which
leave so many victims of moral wrongs helpless, even though
they have actually suffered material and moral injury should
vouchsafe adequate legal remedy for that untold number of
moral wrongs which it is impossible for human foresight to
prove for specifically in the statutes. Whether or not the
principle of abuse of rights has been violated resulting in
damages under Article 20 or Article 21 of the Civil Code or
other applicable provisions of law depends upon the
[71]
circumstances of each case.
In the present case, the petitioner courted the private
complainant and proposed to marry her. He assured her that
he was single. He even brought his parents to the house of
the private complainant where he and his parents made the
same assurance that he was single. Thus, the private
complainant agreed to marry the petitioner, who even stated
in the certificate of marriage that he was single. She lived
with the petitioner and dutifully performed her duties as his
wife, believing all the while that he was her lawful husband.
For two years or so until the petitioner heartlessly abandoned
her, the private complainant had no inkling that he was
already married to another before they were married.
Thus, the private complainant was an innocent
victim of the petitioners chicanery and heartless deception,
the fraud consisting not of a single act alone, but a
continuous series of acts. Day by day, he maintained the
appearance of being a lawful husband to the private
complainant, who
changed her status from a single woman to a married
woman, lost the consortium, attributes and support of a single
man she could have married lawfully and endured mental
pain and humiliation, being bound to a man who it turned out
[72]
was not her lawful husband.
The Court rules that the petitioners collective acts of
fraud and deceit before, during and after his marriage with
the private complainant were willful, deliberate and with
malice and caused injury to the latter. That she did not
sustain any physical injuries is not a bar to an award for
[73]
moral damages. Indeed, in Morris v. Macnab, the New
Jersey Supreme Court ruled:
xxx The defendant cites authorities which indicate
that, absent physical injuries, damages for shame,
humiliation, and mental anguish are not
recoverable where the actor is simply negligent.
See Prosser, supra, at p. 180; 2 Harper & James,
Torts, 1031 (1956). But the authorities all recognize
that where the wrong is willful rather than negligent,
recovery may be had for the ordinary, natural, and
proximate consequences though they consist of
shame, humiliation, and mental anguish. See
Spiegel v. Evergreen Cemetery Co., 117 NJL 90,
94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery
Workers, etc., Local 24, 27 N.J. Super, 579, 591,
99 A.2d 833 (App. Div. 1953); Prosser, supra, at p.
38. Here the defendants conduct was not merely
negligent, but was willfully and maliciously
wrongful. It was bound to result in shame,
humiliation, and mental anguish for the plaintiff,
and when such result did ensue the plaintiff
became entitled not only to compensatory but also
to punitive damages. See Spiegel v. Evergreen
Cemetery Co., supra; Kuzma v Millinery Workers,
etc., Local 24, supra. CF. Note, Exemplary
Damages in the Law of Torts, 70 Harv. L. Rev. 517
(1957). The plaintiff testified that because of the
defendants bigamous marriage to her and the
attendant publicity she not only was embarrassed
and ashamed to go out but couldnt sleep but
couldnt eat, had terrific headaches and lost quite a
lot of weight. No just basis appears for judicial
interference with the jurys reasonable allowance of
$1,000 punitive damages on the first count. See
Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d
[74]
298 (App. Div. 1955).
The Court thus declares that the petitioners acts are against
public policy as they undermine and subvert the family as a
social institution, good morals and the interest and general
welfare of society.
Because the private complainant was an innocent
victim of the petitioners perfidy, she is not barred from
claiming moral damages. Besides, even considerations of
public policy would not prevent her from recovery. As held
[75]
in Jekshewitz v. Groswald:
Where a person is induced by the fraudulent
representation of another to do an act which, in
consequence of such misrepresentation, he
believes to be neither illegal nor immoral, but
which is in fact a criminal offense, he has a right
of action against the person so inducing him for
damages sustained by him in consequence of
his having done such act. Burrows v. Rhodes,
[1899] 1 Q.B. 816. In Cooper v. Cooper, 147
Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the
court said that a false representation by the
defendant that he was divorced from his former
wife, whereby the plaintiff was induced to marry
him, gave her a remedy in tort for deceit. It
seems to have been assumed that the fact that
she had unintentionally violated the law or
innocently committed a crime by cohabiting with
him would be no bar to the action, but rather that
it might be a ground for enhancing her damages.
The injury to the plaintiff was said to be in her
being led by the promise to give the fellowship
and assistance of a wife to one who was not her
husband and to assume and act in a relation and
condition that proved to be false and
ignominious. Damages for such an injury were
held to be recoverable in Sherman v. Rawson,
102 Mass. 395 and Kelley v. Riley, 106 Mass.
339, 343, 8 Am. Rep. 336.
Furthermore, in the case at bar the plaintiff does
not base her cause of action upon any
transgression of the law by herself but upon the
defendants misrepresentation. The criminal
relations which followed, innocently on her part,
were but one of the incidental results of the
defendants fraud for which damages may be
assessed.
[7] Actions for deceit for fraudulently
inducing a woman to enter into the marriage
relation have been maintained in other
jurisdictions. Sears v. Wegner, 150 Mich. 388,
114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v.
McMillan, 99 Wash. 626, 170 P. 324; Blossom v.
Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril v.
 Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411.
Considerations of public policy would not prevent
recovery where the circumstances are such that
the plaintiff was conscious of no moral turpitude,
that her illegal action was induced solely by the
defendants misrepresentation, and that she does
not base her cause of action upon any
transgression of the law by herself. Such
considerations
distinguish this case from cases in which the
court has refused to lend its aid to the
enforcement of a contract illegal on its face or to
one who has consciously and voluntarily become
a party to an illegal act upon which the cause of
action is founded. Szadiwicz v. Cantor, 257
Mass. 518, 520, 154 N.E. 251, 49 A. L. R.
[76]
958.
Considering the attendant circumstances of the case, the
Court finds the award of P200,000.00 for moral damages to
be just and reasonable.
IN LIGHT OF ALL THE FOREGOING, the petition
is DENIED. The assailed decision of the Court of Appeals
is AFFIRMED. Costs against the petitioner.
SO ORDERED.
REPUBLIC vs. CA AND ALEGRO
CALLEJO, SR., J.:
On March 29, 2001, Alan B. Alegro filed a petition in the
Regional Trial Court (RTC) of Catbalogan, Samar, Branch 27,
for the declaration of presumptive death of his wife, Rosalia
(Lea) A. Julaton.
[1]
In an Order dated April 16, 2001, the court set the
petition for hearing on May 30, 2001 at 8:30 a.m. and
directed that a copy of the said order be published once a
week for three (3) consecutive weeks in the Samar
Reporter, a newspaper of general circulation in the Province
of Samar, and
that a copy be posted in the courts bulletin board for at least
three weeks before the next scheduled hearing. The court
also directed that copies of the order be served on the
Solicitor General, the Provincial Prosecutor of Samar, and
Alan, through counsel, and that copies be sent to Lea by
registered mail. Alan complied with all the foregoing
jurisdictional requirements.
[2]
On May 28, 2001, the Republic of the Philippines,
through the Office of the Solicitor General (OSG), filed a
[3]
Motion to Dismiss the petition, which was, however, denied
by the court for failure to comply with Rule 15 of the Rules of
Court.
[4]
At the hearing, Alan adduced evidence that he and
Lea were married on January 20, 1995 in Catbalogan,
[5]
Samar. He testified that, on February 6, 1995, Lea arrived
home late in the evening and he berated her for being always
out of their house. He told her that if she enjoyed the life of a
single person, it would be better for her to go back to her
[6]
parents. Lea did not reply. Alan narrated that, when he
reported for work the following day, Lea was still in the house,
but when he arrived home later in the day, Lea was nowhere
[7]
to be found. Alan thought that Lea merely went to her
parents house in Bliss, Sto. Nio, Catbalogan,
[8]
Samar. However, Lea did not return to their house
anymore.
Alan further testified that, on February 14, 1995,
after his work, he went to the house of Leas parents to see if
she was there, but he was told that she was not there. He
also went to the house of Leas friend, Janeth Bautista,
at Barangay Canlapwas, but he was informed by Janettes
brother-in-law, Nelson Abaenza, that Janeth had left for
[9]
Manila. When Alan went back to the house of his parents-
in-law, he learned from his father-in-law that Lea had been to
[10]
their house but that she left without notice. Alan sought the
help of Barangay Captain Juan Magat, who promised to help
him locate his wife. He also inquired from his friends of Leas
[11]
whereabouts but to no avail.
Sometime in June 1995, he decided to go to Manila
to look for Lea, but his mother asked him to leave after the
town fiesta of Catbalogan, hoping that Lea may come home
[12]
for the fiesta. Alan agreed. However, Lea did not show up.
Alan then left for Manila on August 27, 1995. He went to a
house in Navotas where Janeth, Leas friend, was staying.
When asked where Lea was, Janeth told him that she had
[13]
not seen her. He failed to find out Leas whereabouts
despite his repeated talks with Janeth. Alan decided to work
as a part-time taxi driver. On his free time, he would look for
Lea in the malls but still to no avail. He returned to
Catbalogan in 1997 and again looked for his wife but
[14]
failed.
On June 20, 2001, Alan reported Leas
[15]
disappearance to the local police station. The police
[16]
authorities issued an Alarm Notice on July 4, 2001. Alan
also reported Leas disappearance to the National Bureau of
[17]
Investigation (NBI) on July 9, 2001.
Barangay Captain Juan Magat corroborated the
testimony of Alan. He declared that on February 14, 1995, at
2:00 p.m., Alan inquired from him if Lea passed by his house
and he told Alan that she did not. Alan also told him that Lea
had disappeared. He had not seen Lea in the barangay ever
[18]
since. Leas father, who was his compadre and the owner
of Radio DYMS, told him that he did not know where Lea
[19]
was.
After Alan rested his case, neither the Office of the
Provincial Prosecutor nor the Solicitor General adduced
evidence in opposition to the petition.
On January 8, 2002, the court rendered judgment
granting the petition. The fallo of the decision reads:
WHEREFORE, and in view of all the foregoing,
petitioners absent spouse ROSALIA JULATON
is hereby declared PRESUMPTIVELY DEAD for
the purpose of the petitioners subsequent
marriage under Article 41 of the Family Code of
the Philippines, without prejudice to the effect of
reappearance of the said absent spouse.
[20]
SO ORDERED.
The OSG appealed the decision to the Court of Appeals (CA)
which rendered judgment on August 4, 2003, affirming the
[21]
decision of the RTC. The CA cited the ruling of this Court
[22]
in Republic v. Nolasco.
The OSG filed a petition for review on certiorari of the CAs
decision alleging that respondent Alan B. Alegro failed to
prove that he had a well-founded belief that Lea was already
[23]
dead. It averred that the respondent failed to exercise
reasonable and diligent efforts to locate his wife. The
respondent even admitted that Leas father told him on
February 14, 1995 that Lea had been to their house but left
without notice. The OSG pointed out that the respondent
reported his wifes disappearance to the local police and also
to the NBI only after the petitioner filed a motion to dismiss
the petition. The petitioner avers that, as gleaned from the
evidence, the respondent did not really want to find and
locate Lea. Finally, the petitioner averred:
In view of the summary nature of proceedings under
Article 41 of the Family Code for the declaration of
presumptive death of ones spouse, the degree of
due diligence set by this Honorable Court in the
above-mentioned cases in locating the whereabouts
of a missing spouse must be strictly complied with.
There have been times when Article 41 of the Family
Code had been resorted to by parties wishing to
remarry knowing fully well that their alleged missing
spouses are alive and well. It is even possible that
those who cannot have their marriages x x x
declared null and void under Article 36 of the Family
 Code resort to Article 41 of the Family Code for relief
because of the x x x summary nature of its
proceedings.
It is the policy of the State to protect and strengthen
the family as a basic social institution. Marriage is the
foundation of the family. Since marriage is an
inviolable social institution that the 1987 Constitution
seeks to protect from dissolution at the whim of the
parties. For respondents failure to prove that he had
a well-founded belief that his wife is already
dead and that he exerted the required amount of
diligence in searching for his missing wife, the
petition for declaration of presumptive death should
have been denied by the trial court and the
[24]
Honorable Court of Appeals.
The petition is meritorious.
Article 41 of the Family Code of the Philippines reads:
Art. 41. A marriage contracted by any person
during the subsistence of a previous marriage
shall be null and void, unless before the
celebration of the subsequent marriage, the prior
spouse had been absent for four consecutive
years and the spouse present had a well-
founded belief that the absent spouse was
already dead. In case of disappearance where
there is danger under the circumstances set
forth in the provisions of Article 391 of the Civil
Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent
marriage under the preceding paragraph, the
spouse present must institute a summary
proceeding as provided in this Code for the
declaration of presumptive death of the
absentee, without prejudice to the effect of
[25]
reappearance of the absent spouse.
failed to present Janeth Bautista or Nelson Abaenza or any
other person from whom he allegedly made inquiries about
Lea to corroborate his testimony. On the other hand, the
respondent admitted that when he returned to the house of
his parents-in-law on February 14, 1995, his father-in-law told
him that Lea had just been there but that she left without
notice.
The respondent declared that Lea left their abode on
February 7, 1995 after he chided her for coming home late
and for being always out of their house, and told her that it
would be better for her to go home to her parents if she
enjoyed the life of a single person. Lea, thus, left their
conjugal abode and never returned. Neither did she
communicate with the respondent after leaving the conjugal
abode because of her resentment to the chastisement she
received from him barely a month after their marriage. What
is so worrisome is that, the respondent failed to make
inquiries from his parents-in-law regarding Leas whereabouts
before filing his petition in the RTC. It could have enhanced
the credibility of the respondent had he made inquiries from
his parents-in-law about Leas whereabouts considering that
Leas father was the owner of Radio DYMS.
The respondent did report and seek the help of the local
police authorities and the NBI to locate Lea, but it was only
an afterthought. He did so only after the OSG filed its notice
to dismiss his petition in the RTC.
In sum, the Court finds and so holds that the
respondent failed to prove that he had a well-founded belief,
before he filed his petition in the RTC, that his spouse
Rosalia (Lea) Julaton was already dead.
IN LIGHT OF ALL THE FOREGOING, the petition
is GRANTED. The Decision of the Court of Appeals in CA-
G.R. CV No. 73749 is REVERSED and SET
ASIDE. Consequently, the Regional Trial Court of
Catbalogan, Samar, Branch 27,
is ORDERED to DISMISS the respondents petition.
SO ORDERED.

The spouse present is, thus, burdened to prove that his

spouse has been absent and that he has a well-founded
belief that the absent spouse is already dead before the
present spouse may contract a subsequent marriage. The
law does not define what is meant by a well-grounded belief.
Cuello Callon writes that es menester que su creencia sea
[26]
firme se funde en motivos racionales.

Belief is a state of the mind or condition prompting

the doing of an overt act. It may be proved by direct evidence
or circumstantial evidence which may tend, even in a slight
degree, to elucidate the inquiry or assist to a determination
probably founded in truth. Any fact or circumstance relating to
the character, habits, conditions, attachments, prosperity and
objects of life which usually control the conduct of men, and
are the motives of their actions, was, so far as it tends to
explain or characterize their disappearance or throw light on
[27]
their intentions, competence evidence on the ultimate
question of his death.

The belief of the present spouse must be the result

of proper and honest to goodness inquiries and efforts to
ascertain the whereabouts of the absent spouse and whether
the absent spouse is still alive or is already dead. Whether or
not the spouse present acted on a well-founded belief of
death of the absent spouse depends upon the inquiries to be
drawn from a great many circumstances occurring before and
after the disappearance of the absent spouse and the nature
[28]
and extent of the inquiries made by present spouse.

Although testimonial evidence may suffice to prove the well-

founded belief of the present spouse that the absent spouse
[29]
is already dead, in Republic v. Nolasco, the Court warned
against collusion between the parties when they find it
impossible to dissolve the marital bonds through existing
legal means. It is also the maxim that men readily believe
what they wish to be true.
SSS vs. VDA. DE BAILON
In this case, the respondent failed to present a witness other
than Barangay Captain Juan Magat. The respondent even
 [1]
The Court of Appeals Decision dated June 23,
[2] [3]
2004 and Resolution dated September 28, 2004 reversing
[4]
the Resolution dated April 2, 2003 and Order dated June 4,
[5]
2003 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,
[6]
Sorsogon.
More than 15 years later or on October 9, 1970,
Bailon filed before the then Court of First Instance (CFI) of
[7]
Sorsogon a petition to declare Alice presumptively dead.
[8]
By Order of December 10, 1970, 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.
[9]
SO ORDERED. (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,
[10]
Sorsogon.
On January 30, 1998, Bailon, who was a member of
the Social Security System (SSS) since 1960 and a retiree
[11]
pensioner thereof effective July 1994, died.
Respondent thereupon filed a claim for funeral
[12]
benefits, and was granted P12,000 by the SSS.
Respondent filed on March 11, 1998 an additional
[13]
claim for death benefits which was also granted by the
[14]
SSS on April 6, 1998.
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
[15]
13, 1999 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
[16]
still very much alive.
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
[17]
from Bailons death, he further attesting in a sworn
[18]
statement that it was Norma who defrayed Bailons funeral
expenses.
[19]
Elisa and seven of her children subsequently filed
claims for death benefits as Bailons beneficiaries before the
[20]
SSS.
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
[21]
[sic], to speak of. (Underscoring supplied)
In the meantime, the SSS Sorsogon Branch, by
[22]
letter of August 16, 2000, advised respondent that as
Cecilia and Norma were the ones who defrayed Bailons
funeral expenses, she should return the P12,000 paid to her.
[23]
In a separate letter dated September 7, 1999, 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
[24]
dated October 12, 1999. In a subsequent letter dated
[25]
November 27, 1999 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
[26]
dated January 21, 2000, 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.
[27]
Respondent thus filed a petition 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
[28]
her from spending any amount during Bailons wake.
[29]
After the SSS filed its Answer to respondents
petition, and the parties filed their respective Position Papers,
 [30]
one Alicia P. Diaz filed an Affidavit 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.
[31]
SO ORDERED. (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
th
Sorsogon (10 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
[32]
Memorandum dated August 9, 1999, 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
[33]
her by the SSS as funeral benefit. (Underscoring
supplied)
[34]
Respondents Motion for Reconsideration having
been denied by Order of June 4, 2003, she filed a petition for
[35]
review 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
[36]
and void. (Emphasis and underscoring
supplied)
The SSC and the SSS separately filed their Motions
[37]
for Reconsideration which were both denied for lack of
merit.
Hence, the SSS present petition for review on
[38]
certiorari anchored on the following grounds:
I Under the foregoing provision of the Civil Code, a
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
[39]
JURISDICTION.
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
[40]
awarded pursuant to Section 5 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 dicta in 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
[41]
benefits.
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
[42]
celebration.
[43]
Article 83 of the Civil Code 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)
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
[44]
on the party assailing the second marriage.
In the case at bar, as found by the CFI, Alice had
[45]
been absent for 15 consecutive years when Bailon sought
the declaration of her presumptive death, which judicial
declaration was not even a requirement then for purposes of
[46]
remarriage.
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
[47]
with such first spouse. (Underscoring supplied)
Under the Civil Code, a subsequent marriage
[48]
being voidable, 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
[49]
marriage.
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
[50]
not terminate such marriage. 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
[51]
law.
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, Tolentino submits:
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
[52]
annulment. (Underscoring supplied)
[53]
Similarly, Lapuz v. Eufemio 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
[54]
proceeding. (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
[55]
as if the marriage had been perfectly valid. Upon the death
of either, the marriage cannot be impeached, and is made
[56]
good ab initio.
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.
CELERINA J. SANTOS, Petitioner, v. RICARDO
T. SANTOS, Respondent.
DECISION
LEONEN, J.:
The proper remedy for a judicial declaration of presumptive
death obtained by extrinsic fraud is an action to annul the
judgment. An affidavit of reappearance is not the proper
remedy when the person declared presumptively dead has
never been absent.
This is a petition for review on certiorari filed by Celerina J.
Santos, assailing the Court of Appeals' resolutions dated
November 28, 2008 and March 5, 2009. The Court of
Appeals dismissed the petition for the annulment of the trial
court's judgment declaring her presumptively dead.
On July 27, 2007, the Regional Trial Court of Tarlac City
declared petitioner Celerina J. Santos (Celerina)
presumptively dead after her husband, respondent Ricardo T.
Santos (Ricardo), had filed a petition for declaration of
absence or presumptive death for the purpose of remarriage
1
on� June 15, 2007. Ricardo remarried on September 17,
2
2008. chanrobleslaw
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
3
had gotten married on June 18, 1980. After a year, they
moved to Tarlac City. They were engaged in the buy and sell
4
business. chanrobleslaw
5
Ricardo claimed that their business did not prosper. As a
result, Celerina convinced him to allow her to work as a
6
domestic helper in Hong Kong. Ricardo initially refused but
because of Celerina's insistence, he allowed her to work
7
abroad. She allegedly applied in an employment agency in
Ermita, Manila, in February 1995. She left Tarlac two months
8
after and was never heard from again. chanrobleslaw
Ricardo further alleged that he exerted efforts to locate
9
Celerina. He went to Celerina's parents in Cubao, Quezon
City, but they, too, did not know their daughter's
10
whereabouts. He also inquired about her from other
relatives and friends, but no one gave him any
11
information. chanrobleslaw
Ricardo claimed that it was almost 12 years from the date of
his Regional Trial Court petition since Celerina left.� He
12
believed that she had passed away. chanrobleslaw
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
13
other appropriate remedies. chanrobleslaw
On November 17, 2008, Celerina filed a petition for
14
annulment of judgment 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
15
court that she was a resident of Tarlac City. According to
Celerina, her true residence was in Neptune Extension,
16
Congressional Avenue, Quezon City. This residence had
been her and Ricardo's conjugal dwelling since 1989 until
17
Ricardo left in May 2008. As a result of Ricardo's
misrepresentation, she was deprived of any notice of and
opportunity to oppose the petition declaring her presumptively
18
dead. chanrobleslaw
Celerina claimed that she never resided in Tarlac.� She also
20
never left and worked as a domestic helper abroad. Neither
 21
did she go to an employment agency in February 1995. She
also claimed that it was not true that she had been absent for
12 years. Ricardo was aware that she never left their
22
conjugal dwelling in Quezon City. It was he who left the
conjugal dwelling in May 2008 to cohabit with another
23
woman. Celerina referred to a joint affidavit executed by
their children to support her contention that Ricardo made
24
false allegations in his petition. chanrobleslaw
Celerina also argued that the court did not acquire jurisdiction
over Ricardo's petition because it had never been published
25
in a newspaper. She added that the Office of the Solicitor
General and the Provincial Prosecutor's Office were not
26
furnished copies of Ricardo's petition. chanrobleslaw
The Court of Appeals issued the resolution dated November
28, 2008, dismissing Celerina's petition for annulment of
27
judgment for being a wrong mode of remedy. 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
28
Code. chanrobleslaw
Celerina filed a motion for reconsideration of the Court of
29
Appeals' resolution dated November 28, 2008. The Court of
Appeals denied the motion for reconsideration in the
30
resolution dated March 5, 2009. chanrobleslaw
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
31
belief of the spouse's death. She added that it would be
inappropriate to file an affidavit of reappearance if she did not
32
disappear in the first place. She insisted that an action for
annulment of judgment is proper when the declaration of
33
presumptive death is obtained fraudulently. chanrobleslaw
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
34
judgment declaring her presumptive death. chanrobleslaw
35
In Ricardo's comment, 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
36
no fault of the petitioner." chanrobleslaw
The grounds for annulment of judgment are extrinsic fraud
37
and lack of jurisdiction. This court defined extrinsic fraud
38
in Stilianopulos v. City of Legaspi: chanrobleslaw
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
39
there is no fair submission of the controversy. (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
40
residence. 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
41
circulation. Celerina claimed that because of these, she
was deprived of notice and opportunity to oppose Ricardo's
42
petition to declare her presumptively dead. chanrobleslaw
Celerina alleged that all the facts supporting Ricardo's
petition for declaration of presumptive death were
43
false. 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
44
Ricardo's petition. chanrobleslaw
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.
45
Celerina filed her petition for annulment of judgment 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
46
case of lack of jurisdiction. chanrobleslaw
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
47
marriage. chanrobleslaw
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
48
spouse. The second marriage, as with all marriages, is
49
presumed valid. The burden of proof to show that the first
marriage was not properly dissolved rests on the person
50
assailing the validity of the second marriage. chanrobleslaw
This court recognized the conditional nature of reappearance
as a cause for terminating the subsequent marriage in Social
51 52
Security System v. Vda. de Bailon. This court noted 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
53
reappearance] or by court action[.]" "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
54
provided by law." chanrobleslaw
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
55
absent spouse.
A subsequent marriage contracted in bad faith, even if it was
contracted after a court declaration of presumptive death,
56
lacks the requirement of a well-founded belief 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
57
considered bigamous and void. 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
58
another marriage still applies. chanrobleslaw
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
59
bigamous marriages to apply. chanrobleslaw
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
60
marriage." chanrobleslaw
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
61
marriages." If it is terminated by mere reappearance, the
children of the subsequent marriage conceived before the
62
termination shall still be considered legitimate. Moreover, a
judgment declaring presumptive death is a defense against
63
prosecution for bigamy. chanrobleslaw
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
64
wife." � This means that even if Celerina is a real party in
interest who stands to be benefited or injured by the outcome
65
of an action to nullify the second marriage, 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.cralawlawlibrary
G.R. No. 210929 July 29, 2015
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
EDNA ORCELINO-VILLANUEVA, Respondent.
DISSENTING OPINION
LEONEN, J.:
Edna Orcelino-Villanueva (Edna) was a domestic helper
based in Singapore. In 1993, she came home immediately
after she heard news from her children that her husband,
Romeo L. Villanueva (Romeo), left their conjugal dwelling.
She came home, leaving her work, for the purpose of looking
for her husband and taking care of her children. She had
limited resources for her search.
For 15 or 16 years, she endured the absence of her husband.
Within those long years, whether in good times or bad, she
never heard from him. He did not discharge any of his duties
as husband.
In ruling against her and concluding that she did not search
hard enough for Romeo, the majority fails to appreciate
several crucial facts:
First, Edna turned away from her livelihood, her modest
means of subsistence, just to search for Romeo.
Second, Edna did not only embark on a token search. She
did not limit herself to her parents-in-law and to common
friends in Iligan City, the . place where she and Romeo were
married. Edna went all the way to Romeo's birthplace, which
was Escalante, Negros Oriental. There, she inquired from
Romeo's relatives as to his whereabouts.
Third, 15 or 16 years had passed since Edna was told that
Romeo had gone missing when she filed her Petition to
declare Romeo presumptively dead. If Edna merely intended
to use a petition for declaration of presumptive death as a
convenient means for circumventing laws that protect the
institution of marriage, it is astounding that she would await
the inconvenience of 15 or 16 years.
Edna established a well-founded belief that her husband,
Romeo, is already dead.
1 person report, announcing Romeo’s absence in radio or
I vote to sustain the assailed October 18, 2013 Decision and
2
January 8, 2014 Resolution of the Court of Appeals in CA-
G.R. SP No. 03768-MIN, affirming the October 8, 2009
3
Judgment of the Regional Trial Court, Branch 10,
Malaybalay City, Bukidnon, declaring Romeo presumptively
dead pursuant to Article 41 of the Family Code.
I reiterate the position I articulated in my dissent to Republic
4
of the Philippines v. Cantor. I maintain that a strict standard
should not be used in evaluating the efforts made by a
spouse to ascertain the status and whereabouts of an absent
spouse. The marital obligations provided for by the Family
Code require the continuing presence of each spouse. A
spouse is well to suppose that this shall be resolutely fulfilled
by the other spouse. Failure to do so for the period
established by law gives rise to the presumption that the
absent spouse is dead, thereby enabling the spouse present
to remarry.
Article 41 of the Family Code provides:
Art. 41. A marriage contracted by any person during
subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years and
the spouse present has a well-founded belief that the absent
spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence of
only two years shall be sufficient.
For the purpose of contracting the subsequent marriage
under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code for
the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.
Article 41’s requirement of a "well-grounded belief" calls for
5
an inquiry into a spouse’s state of mind. Otherwise abstract,
one’s state of mind can only be ascertained through overt
acts. Article 41 requires this belief to be "well-grounded." It
therefore requires nothing more than for a spouse to have a
6
"reasonable basis for holding to such belief." Article 41 relies
7
on a basic and plain test: rationality.
What is rational in each case depends on context. Rationality
is not determined by the blanket imposition of pre-conceived
standards. Rather, it is better determined by an appreciation
8
of a person’s unique circumstances.
Moreover, all that Article 41 calls to sustain is a presumption.
By definition, there is no need for absolute certainty. A
presumption is, by nature, favorable to a party and dispenses
with the burden of proving. Consequently, neither is there a
need for conduct that establishes such a high degree of
cognizance that what is established is proof, and no longer a
presumption:
In declaring a person presumptively dead, a court is called
upon to sustain a presumption, it is not called upon to
conclude on verity or to establish actuality. In so doing, a
court infers despite an acknowledged uncertainty. Thus, to
insist on such demanding and extracting evidence to "show
enough proof of a well-founded belief", is to insist on an
inordinate and intemperate standard.
9
It is improper for the majority to insist upon the same "strict
10
standard approach" that was relied on in Cantor and
conclude that Edna’s efforts "were not diligent and serious
11
enough." The majority fails to appreciate several crucial
facts in this case that define the limits of her situation.
Edna’s lack of resources appears in the records. She only
had the ability to present herself as witness.
Concededly, Edna could have engaged in other efforts—
asking for the help of police officers, filing a formal missing-
television programs—as would show how painstakingly she
endeavored to search for Romeo. Insisting on Edna to have
also made these efforts, however, is to insist that she act in
an ideal manner. It takes her away from her own reality and
requires her to fulfill pre-conceived notions of what satisfies
notice. It fails to appreciate the merit of the lengths she
actually went through to search for Romeo.
Unless Edna had the ability to gain access to radio or
television programs with nationwide coverage or ensure that
her notices were posted in all precincts, then requiring this
type of search would have been futile and economically
wasteful. If we are to lend truth to the concept of social
justice, we have to make judgments based on her context. To
reiterate, she is one of the millions who had to go abroad to
earn a more prosperous life for herself and her children. She
had to cut short her employment to come home and make an
honest search for her husband. To require her to squander
more time and money to reach media and the police would
have been economically expensive for her. The law should
be interpreted in the context of reality—and ours is different
from Edna’s.
Edna was an abandoned wife whose husband was missing
for 15 or 16 years. Her search for Romeo began more than
two decades ago in a province in Mindanao, far removed
from this nation’s capital. She was an overseas Filipino
worker, a domestic helper, who was compelled to return to
the Philippines to tend to a missing husband. Twenty-two
years ago, when she embarked on her search, she could not
have been aided by the convenience of ready access to
communication networks. To go to her husband’s birthplace
and inquire from his relatives, she could not have merely
boarded an hour-long flight; she must have endured hours,
even days at sea. It is in light of these human realities that
Edna’s efforts must be appreciated.
This court must realize that insisting upon an ideal will never
yield satisfactory results. A stringent evaluation of a party’s
efforts made out of context will always reveal means through
which a spouse could have ‘done more’ or walked the
proverbial extra mile to ascertain his or her spouse’s
whereabouts. A reason could always be conceived for
concluding that a spouse did not try ‘hard enough.’
So, too, insisting on Edna’s perceived shortcomings unjustly
puts the blame on her and undermines the shortcoming that
Romeo himself committed. All marital obligations recognized
in the Family Code are predicated upon each spouse’s
presence. The primordial marital obligation is "to live
together, observe mutual love, respect and fidelity, and
12
render mutual help and support." As I explained in my
dissent in Cantor:
The opinions of a recognized authority in civil law, Arturo M.
Tolentino, are particularly enlightening:
Meaning of "Absent" Spouse.– The provisions of this article
are of American origin, and must be construed in the light of
American jurisprudence. An identical provision (except for the
period) exists in the California civil code (section 61);
California jurisprudence should, therefore, prove enlightening.
It has been held in that jurisdiction that, as respects the
validity of a husband’s subsequent marriage, a presumption
as to the death of his first wife cannot be predicated upon an
absence resulting from his leaving or deserting her, as it is
his duty to keep her advised as to his whereabouts. The
spouse who has been left or deserted is the one who is
considered as the ‘spouse present’; such spouse is not
required to ascertain the whereabouts of the deserting
spouse, and after the required number of years of absence of
the latter, the former may validly remarry.
Precisely, it is a deserting spouse’s failure to comply with
what is reasonably expected of him/her and to fulfil the
responsibilities that are all but normal to a spouse which
makes reasonable (i.e., well-grounded) the belief that should
he/she fail to manifest his/her presence within a statutorily
determined reasonable period, he/she must have been
deceased. The law is of the confidence that spouses will in
fact "live together, observe mutual love, respect and fidelity,
and render mutual help and support" such that it is not the
business of the law to assume any other circumstance than
13
that a spouse is deceased in case he/she becomes absent.
reappear: 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 nitio.
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
14
such fact is disputed. Moreover, in Santos v. Santos, we
recognized that in cases where a declaration of presumptive
death was fraudulently obtained, the subsequent marriage
shall not only be terminated, but all other effects of the
declaration nullified by a successful petition for annulment of
judgment:
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.
....
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
15
not suffice.
The majority is gripped with the apprehension that a petition
for declaration of presumptive death may be availed of as a
dangerous expedient. Nothing, in this case, sustains fear. A
misplaced anxiety is all that there is. As things stand, Edna
has shown facts that warrant a declaration that Romeo is
presumptively dead. Proceeding from these merits, this
Petition must be denied.
ACCORDINGLY, I vote to DENY the Petition. The Decision of
the Court of Appeals in CA-G.R. SP No. 03768-MIN, affirming
the October 8, 2009 Judgment of the Regional Trial Court,
Branch 10, Malaybalay City, Bukidnon, declaring Romeo L.
Villanueva presumptively dead pursuant to Article 41 of the
Family Code, must be affirmed.
MARVIC M.V.F. LEONEN
Associate Justice

It is Romeo who has been absent. In so doing, he is rightly

considered to be no longer in a position to perform his marital
obligations to Edna. Having been absent for the statutorily
prescribed period despite his legal obligations as a married
spouse, Romeo should be rightly considered presumptively
dead.

The majority burdened itself with ensuring that petitions for

declaration of presumptive death are not used as procedural
shortcuts that undermine the institution of marriage. While
this is a valid concern, the majority goes to unnecessary
lengths to discharge this burden. Article 41 of the Family
Code concedes that there is a degree of risk in presuming a
spouse to be dead, as the absent spouse may, in fact, be
alive and well. Thus, Article 41 provides that declarations of
presumptive death are "without prejudice to the
reappearance of the absent spouse." The state is thus not
bereft of remedies.

Consistent with this, Article 42 of the Family Code provides

for the automatic termination of the subsequent marriage
entered into by the present spouse should the absent spouse
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 ofThe
1
Family Code of the Philippines (Family Code).
2 alleged misappreciation of evidence which could not translate
3 discretion. The CA noted that the RTC properly caused the
This Petition for Review on Certiorari assails the October 24,
4
2011 Decision 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.
5
(Jose) filed a Petition before the Regional Trial Court (RTC)
6
of Ozamiz City-Branch 15 for the declaration of presumptive
7 8
death of his wife, Netchie S. Sareñogon (Netchie).
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
9 10
opposed the Petition. Trial then followed.
Jose testified that he first met Netchie in Clarin, Misamis
11
Occidental in 1991. They later became sweethearts and on
August 10, 1996, they got married in civil rites at the Manila
12
City Hall. However, they lived together as husband and wife
for a month only because he left to work as a seaman while
13
Netchie went to Hongkong as a domestic helper. For three
months, he did not receive any communication from
14
Netchie. He likewise had no idea about her
15
whereabouts. While still abroad, he tried to contact
Netchie’s parents, but failed, as the latter had allegedly left
16
Clarin, Misamis Occidental. He returned home after his
17
contract expired. He then inquired from Netchie’s relatives
and friends about her whereabouts, but they also did not
18
know where she was. Because of these, he had to presume
19
that his wife Netchie was already dead. He filed the Petition
before the RTC so he could contract another marriage
20
pursuant to Article 41 of the Family Code.
Jose’s testimony was corroborated by his older brother Joel
21
Sareñogon, and by Netchie’s aunt, Consuelo Sande. These
two witnesses testified that Jose and Netchie lived together
as husband and wife only for one month prior to their leaving
22
the Philippines for separate destinations abroad. These two
added that they had no information regarding Netchie’s
location.
23
Ruling of the Regional Trial Court
24
In its Decision 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
25
prayed for under Article 41 of the Family Code. The RTC
found that Netchie had disappeared for more than four years,
reason enough for Jose to conclude that his wife was indeed
26
already dead. 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
28
the CA via a Petition for Certiorari under Rule 65 of the
Revised Rules of Court.
29
In its Decision 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
into excess or lack of jurisdiction amounting to grave abuse of
30
publication of the Order setting the case for initial
31
hearing. 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
32
are correctible by an appeal." The CA then disposed of the
case in this wise:
WHEREFORE, the petition for certiorari is dismissed.
SO ORDERED.
33
Issues
34
The Republic filed the instant Petition raising the following
issues:
THE HONORABLE COURT OF APPEALS ERRED ON A
QUESTION OF LAW IN ITS ASSAILED DECISION
BECAUSE:
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.
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
35
DEAD.
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
36
on a presumptive death.
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
37
dead. 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
38
Administration. 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
39
be found. 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
 40
Netchie. 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
41
purpose of terminating their marriage.
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.)

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,
42
an essential premise of Article 41 of the Family Code.
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.

Respondent’s Arguments By express provision of law, the judgment of the court in a

summary proceeding shall be immediately final and
Jose counters that the CA properly dismissed the Republic’s executory. As a matter of course, it follows that no appeal can
Petition because the latter’s petition is erected upon the be had of the trial court’s judgment in a summary proceeding
ground that the CA did not correctly weigh or calibrate the for the declaration of presumptive death of an absent spouse
evidence on record, or assigned to the evidence its due under Article 41 of the Family Code. It goes without saying,
worth, import or significance; and that such a ground does however, that an aggrieved party may file a petition
not avail in a petition for certiorari under Rule 65 of the for certiorari to question abuse of discretion amounting to lack
43
Revised Rules of Court. Jose also contends that the of jurisdiction. Such petition should be filed in the Court of
Republic should have instead filed a motion for Appeals in accordance with the Doctrine of Hierarchy of
44
reconsideration of the RTC’s Decision of January 31, 2011, Courts. To be sure, even if the Court’s original jurisdiction to
reasoning out that a motion for reconsideration is a plain, issue a writ of certiorari is concurrent with the RTCs and the
speedy and adequate remedy in law. Jose furthermore Court of Appeals in certain cases, such concurrence does not
submits that the RTC did not act arbitrarily or capriciously in sanction an unrestricted freedom of choice of court forum. x x
52
granting his petition because it even dutifully complied with x (Citation omitted; Underscoring supplied)
45
the publication requirement. He moreover argues that to
sustain the present petition would allow the executive branch "In sum, under Article 41 of the Family Code, the losing party
46
to unduly make inroads into judicial territory. Finally, he in a summary proceeding for the declaration of presumptive
insists that the trial court’s factual findings are entitled to death may file a petition for certiorari with the CA on the
great weight and respect as these were arrived after due ground that, in rendering judgment thereon, the trial court
47
deliberation. committed grave abuse of discretion amounting to lack of
jurisdiction. From the Decision of the CA, the aggrieved party
This Court’s Ruling may elevate the matter to this Court via a petition for review
53
on certiorari under Rule 45 of the Rules of Court."
This Court finds the Republic’s petition meritorious.
54
In fact, in Republic v. Narceda, we held that the OSG
A petition for certiorari under Rule 65 availed of the wrong remedy when it filed a notice of appeal
of the Rules of Court is the proper under Rule 42 with the CA to question the RTC’s Decision
55
remedy to question the RTC’s Decision declaring the presumptive death of Marina B. Narceda.
in a summary proceeding for the
56
declaration of presumptive death Above all, this Court’s ruling in Republic v. Cantor made it
crystal clear that the OSG properly availed of a petition
In the 2005 case of Republic v. Bermudez-Lorino, we held
48 for certiorari under Rule 65 to challenge the RTC’s Order
that the RTC’s Decision on a Petition for declaration of therein declaring Jerry Cantor as presumptively
presumptive death pursuant to Article 41 of the Family Code dead.1âwphi1
is immediately final and executory. Thus, the CA has no
jurisdiction to entertain a notice of appeal pertaining to such Based on the foregoing, it is clear that the Republic correctly
49
judgment. Concurring in the result, Justice (later Chief availed of certiorari under Rule 65 of the Revised Rules of
Justice) Artemio Panganiban further therein pointed out that Court in assailing before the CA the aforesaid RTC’s
the correct remedy to challenge the RTC Decision was to Decision.
institute a petition for certiorari under Rule 65, and not a
50
petition for review under Rule 45. The "well-founded belief" requisite
under Article 41 of the Family Code is
We expounded on this appellate procedure in Republic v. complied with only upon a showing that
51
Tango: sincere honest-to-goodness efforts had
indeed been made to ascertain whether
This case presents an opportunity for us to settle the rule on the absent spouse is still alive or is
appeal of judgments rendered in summary proceedings under already dead
the Family Code and accordingly, refine our previous
decisions thereon. We now proceed to determine whether the RTC properly
granted Jose’s Petition.
Article 238 of the Family Code, under Title XI: SUMMARY
JUDICIAL PROCEEDINGS IN THE FAMILY LAW, Article 41 of the Family Code pertinently provides that:
establishes the rules that govern summary court proceedings
in the Family Code: Art. 41. A marriage contracted by any person during the
subsistence of a previous marriage shall be null and void,
ART. 238. Until modified by the Supreme Court, the unless before the celebration of the subsequent marriage, the
procedural rules in this Title shall apply in all cases provided prior spouse had been absent for four consecutive years and
for in this Code requiring summary court proceedings. Such the spouse present had a well-founded belief that the absent
cases shall be decided in an expeditious manner without spouse was already dead. In case of disappearance where
regard to technical rules. there is danger of death under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence of
In turn, Article 253 of the Family Code specifies the cases only two years shall be sufficient.
covered by the rules in chapters two and three of the same
title. It states: 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)
57
In Republic v. Cantor, 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
59
(not a mere passive one). (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.
60
In the above-cited case of Republic v. Cantor, 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
61
indeed dead. 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
62
Code." (Citations omitted)
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.
REPUBLIC OF THE PHILIPPINES, Petitioner,
v. NILDA B. TAMPUS, Respondent.
DECISION
PERLAS-BERNABE, J.:
1
Assailed in this petition for review on certiorari are the
2 3
Decision dated June 17, 2013 and the Resolution dated
September 2, 2014 rendered by the Court of Appeals (CA) in
4
CA-G.R. SP No. 04588, which affirmed the Decision 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
5
Julian B. Pogoy of Cordova, Cebu. 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 declaration of presumptive death: (1) that the absent spouse
Since then, Nilda heard no news from Dante,. She tried
7
everything to locate him, but her efforts proved futile. Thus,
on April 14, 2009, she filed before the RTC a petition to
8 Article 391 of the Civil Code; (2) that the present spouse
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 declaration of presumptive death of the absentee.
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
11
In a Decision 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
12
sufficient to give rise to the presumption of death.
Dissatisfied, the Office of the Solicitor General (OSG), on
behalf of petitioner Republic of the Philippines (Republic),
13
filed a petition for certiorari before the CA assailing the RTC
Decision.
The CA Ruling
14
In a Decision 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
15
that her husband is already dead.
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
16
that Dante is already dead.
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
19
dead. Under Article 41 of the Family Code of the Philippines
(Family Code), there are four (4) essential requisites for the
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
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
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
21
of proving it and mere allegation is not evidence.
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
22
not suffice. 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
23
dead.
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.
24
Nolasco, 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
25
as witnesses. cralawred

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
26
extent of the inquiries made by the present spouse.

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.chanrobleslaw

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.