REPUBLIC OF THE PHILIPPINES, G.R. No.

159614
Petitioner,
Present:
- versus - PUNO, J., Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
THE HONORABLE COURT OF TINGA, and
APPEALS (TENTH DIVISION) CHICO-NAZARIO, JJ.
and ALAN B. ALEGRO,
Respondents.
Promulgated:

December 9, 2005
x--------------------------------------------------x

DECISION

CALLEJO, SR., J.:

On March 29, 2001, Alan B. Alegro filed a petition in the Regional Trial Court (RTC) of Catbalogan, Samar,
Branch 27, for the declaration of presumptive death of his wife, Rosalia (Lea) A. Julaton.

In an Order[1] dated April 16, 2001, the court set the petition for hearing on May 30, 2001 at 8:30 a.m. and
directed that a copy of the said order be published once a week for three (3) consecutive weeks in the Samar
Reporter, a newspaper of general circulation in the Province of Samar, and
that a copy be posted in the courts bulletin board for at least three weeks before the next scheduled hearing. The
court also directed that copies of the order be served on the Solicitor General, the Provincial Prosecutor of Samar,
and Alan, through counsel, and that copies be sent to Lea by registered mail. Alan complied with all the foregoing
jurisdictional requirements.[2]

On May 28, 2001, the Republic of the Philippines, through the Office of the Solicitor General (OSG),
filed a Motion to Dismiss[3] the petition, which was, however, denied by the court for failure to comply with Rule
15 of the Rules of Court.[4]

At the hearing, Alan adduced evidence that he and Lea were married on January 20, 1995 in Catbalogan,
Samar.[5] He testified that, on February 6, 1995, Lea arrived home late in the evening and he berated her for being
always out of their house. He told her that if she enjoyed the life of a single person, it would be better for her to
go back to her parents.[6] Lea did not reply. Alan narrated that, when he reported for work the following day, Lea
was still in the house, but when he arrived home later in the day, Lea was nowhere to be found. [7] Alan thought
that Lea merely went to her parents house in Bliss, Sto. Nio, Catbalogan, Samar.[8] However, Lea did not return
to their house anymore.

Alan further testified that, on February 14, 1995, after his work, he went to the house of Leas parents to
see if she was there, but he was told that she was not there. He also went to the house of Leas friend, Janeth
Bautista, at Barangay Canlapwas, but he was informed by Janettes brother-in-law, Nelson Abaenza, that Janeth
had left for Manila.[9]When Alan went back to the house of his parents-in-law, he learned from his father-in-law
that Lea had been to their house but that she left without notice.[10] Alan sought the help of Barangay Captain
Juan Magat, who promised to help him locate his wife. He also inquired from his friends of Leas whereabouts but
to no avail.[11]

Sometime in June 1995, he decided to go to Manila to look for Lea, but his mother asked him to leave
after the town fiesta of Catbalogan, hoping that Lea may come home for the fiesta. Alan agreed.[12] However, Lea
did not show up. Alan then left for Manila on August 27, 1995. He went to a house in Navotas where Janeth, Leas
friend, was staying. When asked where Lea was, Janeth told him that she had not seen her. [13] He failed to find
out Leas whereabouts despite his repeated talks with Janeth. Alan decided to work as a part-time taxi driver. On
his free time, he would look for Lea in the malls but still to no avail. He returned to Catbalogan in 1997 and again
looked for his wife but failed.[14]

On June 20, 2001, Alan reported Leas disappearance to the local police station.[15] The police authorities
issued an Alarm Notice on July 4, 2001.[16] Alan also reported Leas disappearance to the National Bureau of
Investigation (NBI) on July 9, 2001.[17]

Barangay Captain Juan Magat corroborated the testimony of Alan. He declared that on February 14, 1995,
at 2:00 p.m., Alan inquired from him if Lea passed by his house and he told Alan that she did not. Alan also told
him that Lea had disappeared. He had not seen Lea in the barangay ever since.[18] Leas father, who was
his compadre and the owner of Radio DYMS, told him that he did not know where Lea was.[19]

After Alan rested his case, neither the Office of the Provincial Prosecutor nor the Solicitor General
adduced evidence in opposition to the petition.

On January 8, 2002, the court rendered judgment granting the petition. The fallo of the decision reads:

WHEREFORE, and in view of all the foregoing, petitioners absent spouse ROSALIA
JULATON is hereby declared PRESUMPTIVELY DEAD for the purpose of the petitioners
subsequent marriage under Article 41 of the Family Code of the Philippines, without prejudice to
the effect of reappearance of the said absent spouse.

SO ORDERED.[20]
The OSG appealed the decision to the Court of Appeals (CA) which rendered judgment on August 4, 2003,
affirming the decision of the RTC.[21] The CA cited the ruling of this Court in Republic v. Nolasco.[22]

The OSG filed a petition for review on certiorari of the CAs decision alleging that respondent Alan B.
Alegro failed to prove that he had a well-founded belief that Lea was already dead.[23] It averred that the
respondent failed to exercise reasonable and diligent efforts to locate his wife. The respondent even admitted that
Leas father told him on February 14, 1995 that Lea had been to their house but left without notice. The OSG
pointed out that the respondent reported his wifes disappearance to the local police and also to the NBI only after
the petitioner filed a motion to dismiss the petition. The petitioner avers that, as gleaned from the evidence, the
respondent did not really want to find and locate Lea. Finally, the petitioner averred:
In view of the summary nature of proceedings under Article 41 of the Family Code for the
declaration of presumptive death of ones spouse, the degree of due diligence set by this Honorable
Court in the above-mentioned cases in locating the whereabouts of a missing spouse must be
strictly complied with. There have been times when Article 41 of the Family Code had been
resorted to by parties wishing to remarry knowing fully well that their alleged missing spouses are
alive and well. It is even possible that those who cannot have their marriages x x x
declared null and void under Article 36 of the Family Code resort to Article 41 of the Family Code
for relief because of the x x x summary nature of its proceedings.

It is the policy of the State to protect and strengthen the family as a basic social institution.
Marriage is the foundation of the family. Since marriage is an inviolable social institution that the
1987 Constitution seeks to protect from dissolution at the whim of the parties. For respondents
failure to prove that he had a well-founded belief that his wife is already
dead and that he exerted the required amount of diligence in searching for his missing wife, the
petition for declaration of presumptive death should have been denied by the trial court and the
Honorable Court of Appeals.[24]

The petition is meritorious.

Article 41 of the Family Code of the Philippines reads:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall
be null and void, unless before the celebration of the subsequent marriage, the prior spouse had
been absent for four consecutive years and the spouse present had a well-founded belief that the
absent spouse was already dead. In case of disappearance where there is danger under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the
spouse present must institute a summary proceeding as provided in this Code for the declaration
of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.[25]

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

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

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

Although testimonial evidence may suffice to prove the well-founded belief of the present spouse that the absent
spouse is already dead, in Republic v. Nolasco,[29] the Court warned against collusion between the parties when
they find it impossible to dissolve the marital bonds through existing legal means. It is also the maxim that men
readily believe what they wish to be true.

In this case, the respondent failed to present a witness other than Barangay Captain Juan Magat. The respondent
even failed to present Janeth Bautista or Nelson Abaenza or any other person from whom he allegedly made
inquiries about Lea to corroborate his testimony. On the other hand, the respondent admitted that when he returned
to the house of his parents-in-law on February 14, 1995, his father-in-law told him that Lea had just been there
but that she left without notice.
The respondent declared that Lea left their abode on February 7, 1995 after he chided her for coming home late
and for being always out of their house, and told her that it would be better for her to go home to her parents if
she enjoyed the life of a single person. Lea, thus, left their conjugal abode and never returned. Neither did she
communicate with the respondent after leaving the conjugal abode because of her resentment to the chastisement
she received from him barely a month after their marriage. What is so worrisome is that, the respondent failed to
make inquiries from his parents-in-law regarding Leas whereabouts before filing his petition in the RTC. It could
have enhanced the credibility of the respondent had he made inquiries from his parents-in-law about Leas
whereabouts considering that Leas father was the owner of Radio DYMS.

The respondent did report and seek the help of the local police authorities and the NBI to locate Lea, but it was
only an afterthought. He did so only after the OSG filed its notice to dismiss his petition in the RTC.
 In sum, the Court finds and so holds that the respondent failed to prove that he had a well-founded belief,
before he filed his petition in the RTC, that his spouse Rosalia (Lea) Julaton was already dead.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in
CA-G.R. CV No. 73749 is REVERSED and SET ASIDE. Consequently, the Regional Trial Court of
Catbalogan, Samar, Branch 27, is ORDERED to DISMISS the respondents petition.

SO ORDERED.
G.R. No. 184621 December 10, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
MARIA FE ESPINOSA CANTOR, Respondent.

DECISION

BRION, J.:

The petition for review on certiorari1 before us assails the decision2 dated August 27, 2008 of the Court of
Appeals (CA) in CA-G.R. SP No. 01558-MIN which affirmed be order3 dated December 15, 2006 of the
Regional Trial Court (RTC), Branch 25, Koronadal City, South Cotabato, in SP Proc. Case No. 313-25,
declaring Jerry F. Cantor, respondent Maria Fe Espinosa Cantor’s husband, presumptively dead under Article
41 of the Family Code.

The Factual Antecedents

The respondent and Jerry were married on September 20, 1997. They lived together as husband and wife in
their conjugal dwelling in Agan Homes, Koronadal City, South Cotabato. Sometime in January 1998, the
couple had a violent quarrel brought about by: (1) the respondent’s inability to reach "sexual climax" whenever
she and Jerry would have intimate moments; and (2) Jerry’s expression of animosity toward the respondent’s
father.

After their quarrel, Jerry left their conjugal dwelling and this was the last time that the respondent ever saw him.
Since then, she had not seen, communicated nor heard anything from Jerry or about his whereabouts.

On May 21, 2002, or more than four (4) years from the time of Jerry’s disappearance, the respondent filed
before the RTC a petition4for her husband’s declaration of presumptive death, docketed as SP Proc. Case No.
313-25. She claimed that she had a well-founded belief that Jerry was already dead. She alleged that she had
inquired from her mother-in-law, her brothers-in-law, her sisters-in-law, as well as her neighbors and friends,
but to no avail. In the hopes of finding Jerry, she also allegedly made it a point to check the patients’ directory
whenever she went to a hospital. All these earnest efforts, the respondent claimed, proved futile, prompting her
to file the petition in court.

The Ruling of the RTC

After due proceedings, the RTC issued an order granting the respondent’s petition and declaring Jerry
presumptively dead. It concluded that the respondent had a well-founded belief that her husband was already
dead since more than four (4) years had passed without the former receiving any news about the latter or his
whereabouts. The dispositive portion of the order dated December 15, 2006 reads:

WHEREFORE, the Court hereby declares, as it hereby declared that respondent Jerry F. Cantor is
presumptively dead pursuant to Article 41 of the Family Code of the Philippines without prejudice to the effect
of the reappearance of the absent spouse Jerry F. Cantor.5

The Ruling of the CA

The case reached the CA through a petition for certiorari6filed by the petitioner, Republic of the Philippines,
through the Office of the Solicitor General (OSG). In its August 27, 2008 decision, the CA dismissed the
petitioner’s petition, finding no grave abuse of discretion on the RTC’s part, and, accordingly, fully affirmed the
latter’s order, thus:
WHEREFORE, premises foregoing (sic), the instant petition is hereby DISMISSED and the assailed Order
dated December 15, 2006 declaring Jerry F. Cantor presumptively dead is hereby AFFIRMED in toto.7

The petitioner brought the matter via a Rule 45 petition before this Court. The Petition The petitioner contends
that certiorari lies to challenge the decisions, judgments or final orders of trial courts in petitions for declaration
of presumptive death of an absent spouse under Rule 41 of the Family Code. It maintains that although
judgments of trial courts in summary judicial proceedings, including presumptive death cases, are deemed
immediately final and executory (hence, not appeal able under Article 247 of the Family Code), this rule does
not mean that they are not subject to review on certiorari.

The petitioner also posits that the respondent did not have a well-founded belief to justify the declaration of her
husband’s presumptive death. It claims that the respondent failed to conduct the requisite diligent search for her
missing husband. Likewise, the petitioner invites this Court’s attention to the attendant circumstances
surrounding the case, particularly, the degree of search conducted and the respondent’s resultant failure to meet
the strict standard under Article 41 of the Family Code.

The Issues

The petition poses to us the following issues:

(1) Whether certiorarilies to challenge the decisions, judgments or final orders of trial courts in petitions for
declaration of presumptive death of an absent spouse under Article 41 of the Family Code; and

(2) Whether the respondent had a well-founded belief that Jerry is already dead.

The Court’s Ruling

We grant the petition.

a. On the Issue of the Propriety of Certiorari as a Remedy

Court’s Judgment in the Judicial

Proceedings for Declaration of
Presumptive Death Is Final and
Executory, Hence, Unappealable

The Family Code was explicit that the court’s judgment in summary proceedings, such as the declaration of
presumptive death of an absent spouse under Article 41 of the Family Code, shall be immediately final and
executory.

Article 41,in relation to Article 247, of the Family Code provides:

Art. 41. A marriage contracted by any person during subsistence of a previous marriage shall be null and void,
unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive
years and the spouse present has a well-founded belief that the absent spouse was already dead. In case of
disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391
of the Civil Code, an absence of only two years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph the spouse present must
institute a summary proceeding as provided in this Code for the declaration of presumptive death of the
absentee, without prejudice to the effect of reappearance of the absent spouse.
Art. 247. The judgment of the court shall be immediately final and executory. [underscores ours]

With the judgment being final, it necessarily follows that it is no longer subject to an appeal, the dispositions
and conclusions therein having become immutable and unalterable not only as against the parties but even as
against the courts.8 Modification of the court’s ruling, no matter how erroneous is no longer permissible. The
final and executory nature of this summary proceeding thus prohibits the resort to appeal. As explained in
Republic of the Phils. v. Bermudez-Lorino,9 the right to appeal is not granted to parties because of the express
mandate of Article 247 of the Family Code, to wit:

In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to
perfect an appeal, precisely because judgments rendered thereunder, by express provision of [Article] 247,
Family Code, supra, are "immediately final and executory." It was erroneous, therefore, on the part of the
RTCto give due course to the Republic’s appeal and order the transmittal of the entire records of the case to the
Court of Appeals.

An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is
immediately final and executory. As we have said in Veloria vs. Comelec, "the right to appeal is not a natural
right nor is it a part of due process, for it is merely a statutory privilege." Since, by express mandate of Article
247 of the Family Code, all judgments rendered in summary judicial proceedings in Family Law are
"immediately final and executory," the right to appeal was not granted to any of the parties therein. The
Republic of the Philippines, as oppositor in the petition for declaration of presumptive death, should not be
treated differently. It had no right to appeal the RTC decision of November 7, 2001. [emphases ours; italics
supplied]

Certiorari Lies to Challenge the

Decisions, Judgments or Final
Orders of Trial Courts in a Summary
Proceeding for the Declaration of Presumptive
Death Under the Family Code

A losing party in this proceeding, however, is not entirely left without a remedy. While jurisprudence tells us
that no appeal can be made from the trial court's judgment, an aggrieved party may, nevertheless, file a petition
for certiorari under Rule 65 of the Rules of Court to question any abuse of discretion amounting to lack or
excess of jurisdiction that transpired.

As held in Delos Santos v. Rodriguez, et al.,10 the fact that a decision has become final does not automatically
negate the original action of the CA to issue certiorari, prohibition and mandamus in connection with orders or
processes issued by the trial court. Certiorari may be availed of where a court has acted without or in excess of
jurisdiction or with grave abuse of discretion, and where the ordinary remedy of appeal is not available. Such a
procedure finds support in the case of Republic v. Tango,11 wherein we held that:

This case presents an opportunity for us to settle the rule on appeal of judgments rendered in summary
proceedings under the Family Code and accordingly, refine our previous decisions thereon.

Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY
LAW, establishes the rules that govern summary court proceedings in the Family Code:

"ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases
provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious
manner without regard to technical rules."
In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and three of the
same title. It states:

"ART. 253. The foregoing rules in Chapters 2and 3 hereof shall likewise govern summary proceedings filed
under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable."(Emphasis supplied.)

In plain text, Article 247 in Chapter 2 of the same title reads:

"ART.247. The judgment of the court shall be immediately final and executory."

By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and
executory. As a matter of course, it follows that no appeal can be had of the trial court's judgment ina summary
proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It
goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of
discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance
with the Doctrine of Hierarchy of Courts. To be sure, even if the Court's original jurisdiction to issue a writ of
certiorari is concurrent with the RTCs and the Court of Appeals in certain cases, such concurrence does not
sanction an unrestricted freedom of choice of court forum. [emphasis ours]

Viewed in this light, we find that the petitioner’s resort to certiorari under Rule 65 of the Rules of Court to
question the RTC’s order declaring Jerry presumptively dead was proper.

b. On the Issue of the Existence of Well-Founded Belief

The Essential Requisites for the
Declaration of Presumptive Death
Under Article 41 of the Family Code

Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior spouse had
been absent for four consecutive years and the present spouse had a well-founded belief that the prior spouse
was already dead. Under Article 41 of the Family Code, there are four (4) essential requisites for the declaration
of presumptive death:

1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the
disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil
Code;

2. That the present spouse wishes to remarry;

3. That the present spouse has a well-founded belief that the absentee is dead; and

4. That the present spouse files a summary proceeding for the declaration of presumptive death of the
absentee.12

The Present Spouse Has the Burden

of Proof to Show that All the
Requisites Under Article 41 of the
Family Code Are Present

The burden of proof rests on the present spouse to show that all the requisites under Article 41 of the Family
Code are present. Since it is the present spouse who, for purposes of declaration of presumptive death,
substantially asserts the affirmative of the issue, it stands to reason that the burden of proof lies with him/her.
He who alleges a fact has the burden of proving it and mere allegation is not evidence.13
Declaration of Presumptive Death
Under Article 41 of the Family Code
Imposes a Stricter Standard

Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code which it superseded,
imposes a stricter standard. It requires a "well-founded belief " that the absentee is already dead before a
petition for declaration of presumptive death can be granted. We have had occasion to make the same
observation in Republic v. Nolasco,14 where we noted the crucial differences between Article 41 of the Family
Code and Article 83 of the Civil Code, to wit:

Under Article 41, the time required for the presumption to arise has been shortened to four (4) years; however,
there is need for a judicial declaration of presumptive death to enable the spouse present to remarry. Also,
Article 41 of the Family Code imposes a stricter standard than the Civil Code: Article 83 of the Civil Code
merely requires either that there be no news that such absentee is still alive; or the absentee is generally
considered to be dead and believed to be so by the spouse present, or is presumed dead under Articles 390 and
391 of the Civil Code. The Family Code, upon the other hand, prescribes as "well founded belief" that the
absentee is already dead before a petition for declaration of presumptive death can be granted.

Thus, mere absence of the spouse (even for such period required by the law), lack of any news that such
absentee is still alive, failure to communicate or general presumption of absence under the Civil Code would not
suffice. This conclusion proceeds from the premise that Article 41 of the Family Code places upon the present
spouse the burden of proving the additional and more stringent requirement of "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, that the absent spouse is still alive or is already dead.15

The Requirement of Well-Founded Belief

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 spouseis already dead. It requires exertion of active effort (not a mere passive
one).

To illustrate this degree of "diligent and reasonable search" required by the law, an analysis of the following
relevant cases is warranted:

i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16

In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court ruled that the present spouse failed
to prove that he had a well-founded belief that his absent spouse was already dead before he filed his petition.
His efforts to locate his absent wife allegedly consisted of the following:

(1) He went to his in-laws’ house to look for her;

(2) He sought the barangay captain’s aid to locate her;

(3) He went to her friends’ houses to find her and inquired about her whereabouts among his friends;

(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his free time;
(5) He went back to Catbalogan and again looked for her; and

(6) He reported her disappearance to the local police station and to the NBI.

Despite these alleged "earnest efforts," the Court still ruled against the present spouse. The Court found that he
failed to present the persons from whom he allegedly made inquiries and only reported his wife’s absence after
the OSG filed its notice to dismiss his petition in the RTC.

The Court also provided the following criteria for determining the existence of a "well-founded belief" under
Article 41 of the Family Code:

The belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to
ascertain the whereabouts of the absent spouse and whether the absent spouse is still alive or is already dead.
Whether or not the spouse present acted on a well-founded belief of death of the absent spouse depends upon
the inquiries to be drawn from a great many circumstances occurring before and after the disappearance of the
absent spouse and the nature and extent of the inquiries made by [the] present spouse.18

ii. Republic v. Granada19

Similarly in Granada, the Court ruled that the absent spouse failed to prove her "well-founded belief" that her
absent spouse was already dead prior to her filing of the petition. In this case, the present spouse alleged that her
brother had made inquiries from their relatives regarding the absent spouse’s whereabouts. The present spouse
did not report to the police nor seek the aid of the mass media. Applying the standards in Republic of the
Philippines v. Court of Appeals (Tenth Div.),20 the Court ruled against the present spouse, as follows:

Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda did not
initiate a diligent search to locate her absent husband. While her brother Diosdado Cadacio testified to having
inquiredabout the whereabouts of Cyrus from the latter’s relatives, these relatives were not presented to
corroborate Diosdado’s testimony. In short, respondent was allegedly not diligent in her search for her husband.
Petitioner argues that if she were, she would have sought information from the Taiwanese Consular Office or
assistance from other government agencies in Taiwan or the Philippines. She could have also utilized mass
media for this end, but she did not. Worse, she failed to explain these omissions.

iii.Republic v. Nolasco21

In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who had been
missing for more than four years. He testified that his efforts to find her consisted of:

(1) Searching for her whenever his ship docked in England;

(2) Sending her letters which were all returned to him; and

(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless. The Court ruled that the
present spouse’s investigations were too sketchy to form a basis that his wife was already dead and ruled that
the pieces of evidence only proved that his wife had chosen not to communicate with their common
acquaintances, and not that she was dead.

iv.The present case

In the case at bar, the respondent’s "well-founded belief" was anchored on her alleged "earnest efforts" to locate
Jerry, which consisted of the following:
(1) She made inquiries about Jerry’s whereabouts from her in-laws, neighbors and friends; and

(2) Whenever she went to a hospital, she saw to it that she looked through the patients’ directory, hoping to find
Jerry.

These efforts, however, fell short of the "stringent standard" and degree of diligence required by jurisprudence
for the following reasons:

First, the respondent did not actively look for her missing husband.1âwphi1 It can be inferred from the records
that her hospital visits and her consequent checking of the patients’ directory therein were unintentional. She
did not purposely undertake a diligent search for her husband as her hospital visits were not planned nor
primarily directed to look for him. This Court thus considers these attempts insufficient to engender a belief that
her husband is dead.

Second, she did not report Jerry’s absence to the police nor did she seek the aid of the authorities to look for
him. While a finding of well-founded belief varies with the nature of the situation in which the present spouse is
placed, under present conditions, we find it proper and prudent for a present spouse, whose spouse had been
missing, to seek the aid of the authorities or, at the very least, report his/her absence to the police.

Third, she did not present as witnesses Jerry’s relatives or their neighbors and friends, who can corroborate her
efforts to locate Jerry. Worse, these persons, from whom she allegedly made inquiries, were not even named. As
held in Nolasco, the present spouse’s bare assertion that he inquired from his friends about his absent spouse’s
whereabouts is insufficient as the names of the friends from whom he made inquiries were not identified in the
testimony nor presented as witnesses.

Lastly, there was no other corroborative evidence to support the respondent’s claim that she conducted a
diligent search. Neither was there supporting evidence proving that she had a well-founded belief other than her
bare claims that she inquired from her friends and in-laws about her husband’s whereabouts. In sum, the Court
is of the view that the respondent merely engaged in a "passive search" where she relied on uncorroborated
inquiries from her in-laws, neighbors and friends. She failed to conduct a diligent search because her alleged
efforts are insufficient to form a well-founded belief that her husband was already dead. As held in Republic of
the Philippines v. Court of Appeals (Tenth Div.),22 "[w]hether or not the spouse present acted on a 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 natureand extent of the
inquiries made by [the] present spouse."

Strict Standard Approach Is

Consistent with the State’s Policy
to Protect and Strengthen Marriage

In the above-cited cases, the Court, fully aware of the possible collusion of spouses in nullifying their marriage,
has consistently applied the "strictstandard" approach. This is to ensure that a petition for declaration of
presumptive death under Article 41 of the Family Code is not used as a tool to conveniently circumvent the
laws. Courts should never allow procedural shortcuts and should ensure that the stricter standard required by the
Family Code is met. In Republic of the Philippines v. Court of Appeals (Tenth Div.),23 we emphasized that:

In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration of
presumptive death of one’s 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 xxx declared null and void under Article 36 of the Family Code resort to Article 41 of the
Family Code for relief because of the xxx summary nature of its proceedings.

The application of this stricter standard becomes even more imperative if we consider the State’s policy to
protect and strengthen the institution of marriage.24 Since marriage serves as the family’s foundation25 and
since it is the state’s policy to protect and strengthen the family as a basic social institution,26 marriage should
not be permitted to be dissolved at the whim of the parties. In interpreting and applying Article 41, this is the
underlying rationale –to uphold the sanctity of marriage. Arroyo, Jr.v. Court of Appeals27 reflected this
sentiment when we stressed:

[The]protection of the basic social institutions of marriage and the family in the preservation of which the State
has the strongest interest; the public policy here involved is of the most fundamental kind. In Article II, Section
12 of the Constitution there is set forth the following basic state policy:

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution.

Strict Standard Prescribed Under

Article 41 of the Family Code
Is for the Present Spouse’s Benefit

The requisite judicial declaration of presumptive death of the absent spouse (and consequently, the application
of a stringent standard for its issuance) is also for the present spouse's benefit. It is intended to protect him/her
from a criminal prosecution of bigamy under Article 349 of the Revised Penal Code which might come into
play if he/she would prematurely remarry sans the court's declaration.

Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the present spouse's good
faith in contracting a second marriage is effectively established. The decision of the competent court constitutes
sufficient proof of his/her good faith and his/her criminal intent in case of remarriage is effectively negated.28
Thus, for purposes of remarriage, it is necessary to strictly comply with the stringent standard and have the
absent spouse judicially declared presumptively dead.

Final Word

As a final word, it has not escaped this Court's attention that the strict standard required in petitions for
declaration of presumptive death has not been fully observed by the lower courts. We need only to cite the
instances when this Court, on review, has consistently ruled on the sanctity of marriage and reiterated that
anything less than the use of the strict standard necessitates a denial. To rectify this situation, lower courts are
now expressly put on notice of the strict standard this Court requires in cases under Article 41 of the Family
Code.

WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of the Court of Appeals,
which affirmed the order dated December 15, 2006 of the Regional Trial Court, Branch 25, Koronadal City,
South Cotabato, declaring Jerry F. Cantor presumptively dead is hereby REVERSED and SET ASIDE.

SO ORDERED.
G.R. No. 210929 July 29, 2015

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
EDNA ORCELINO-VILLANUEVA, Respondent.

DECISION
MENDOZA, J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, the Office of the Solicitor General
(OSG), on behalf of the Republic of the Philippines, assails the October 18, 2013 Decision1 and the January 8,
2014 Resolution2 of the Court of Appeals (CA), in CA-G.R. S.P. No. 03768-MIN, which affirmed the October
8, 2009 Judgment3 of the Regional Trial Court, Branch 10, Malaybalay City, Bukidnon (RTC), in SP Proc.
Case No. 3316-09, granting the petition of respondent Edna Orcelino-Villanueva (Edna) and declaring her
husband, Romeo L. Villanueva (Romeo), as presumptively dead under Article 41 of the Family Code.4

The Antecedents

Edna and Romeo were married on December 21, 1978, in Iligan City.

In 1992, Edna worked as domestichelper in Singapore while her husband worked as a mechanic in Valencia
City, Bukidnon.In 1993, Edna heard the news from her children that Romeo had left their conjugal home
without reason or information as to his whereabouts.

Thereafter, Edna took a leave from work and returned to the country to look for Romeo. She inquired from her
parents-in-law and common friends in Iligan City. Still, she found no leads as to his whereabouts or existence.
She also went to his birthplace in Escalante, Negros Oriental, and inquired from his relatives.

On August 6, 2009, Edna filed before the RTC a petition5 to declare Romeo presumptively dead under Article
41 of the Family Code.

During the trial, Edna was presented as the lone witness. In its October 8, 2009 Order,6 the RTC granted the
petition on the basis of her well-founded belief of Romeo’s death. Hence: WHEREFORE, premises considered,
judgment is hereby rendered declaring Romeo L. Villanueva to be presumptively dead for all legal intents and
purposes in accordance with Article 41 of the Family Code of the Philippines, without prejudice to his
reappearance.

SO ORDERED.7

On August 13, 2010, the OSG filed a petition for certiorari under Rule 65 of the Rules of Court before the CA
alleging grave abuse of discretion on the part of the RTC in finding that Edna had a well-founded belief that
Romeo, her absent spouse, was dead. It argued that the conclusions reached by the RTC were in direct
opposition to established jurisprudence, as ruled by the Court in Republic v. Nolasco8 (Nolasco) and U.S. v.
Biasbas.9

On October 18, 2013, the CA dismissed the petition, holding that the RTC acted within its jurisdiction in
issuing the assailed decision having been expressly clothed with the power to determine the case.10 It also cited
Article 247 of the Family Code11 which provided for the final and immediate executory character of the
decision of the RTC, acting as a family court, thus, rendering the issue of whether or not Edna had sufficiently
established a well-founded belief to warrant the decree of presumptive death of her absent spouse, as moot and
academic. On November 20, 2013, the OSG filed a motion for reconsideration but the CA denied it on January
8, 2014.
Hence, this petition.

ISSUES

I.

WHETHER OR NOT THE CA ERRED IN AFFIRMING THE RTC DECISION DESPITE THE FACT THAT
THE CONCLUSION REACHED BY THE RTC IS CONTRARY TO PREVAILING JURISPRUDENCE.

II.

WHETHER OR NOT THE CA ERRED IN RULING THAT THE GROUNDS RAISED BY THE
PETITIONER TO ASSAIL THE RTC DECISION ARE MERE ERRORS OF JUDGMENT.12

The OSG argues that the CA erred in not finding grave abuse of discretion on the part of the RTC when the
latter affirmed the existence of Edna’s well-founded belief as to the death of her absent spouse. It claims that the
evidence presented by Edna, which merely consisted of bare and uncorroborated assertions, never amounted to
a diligent and serious search required under prevailing jurisprudence.

Respondent Edna, through her counsel, invokes the finality, inalterability and immutability of the RTC decision,
which was affirmed by the CA.13

Ruling of the Court

The Court grants the petition.

Article 41 of the Family Code provides that before a judicial declaration of presumptive death may be granted,
the present spouse must prove that he/she has a well-founded belief that the absentee is dead.14 In this case,
Edna failed. The RTC and the CA overlooked Edna’s patent noncompliance with the said requirement.

The well-founded belief in the absentee’s death requires the present spouse to prove that his/her belief was the
result of diligent and reasonable efforts to locate the absent spouse and that based on these efforts and inquiries,
he/she believes that under the circumstances, the absent spouse is already dead. It necessitates exertion of active
effort (not a mere passive one). Mere absence of the spouse (even beyond the period required by law), lack of
any news that the absentee spouse is still alive, mere failure to communicate, or general presumption of absence
under the Civil Code would not suffice.15 The premise is that Article 41 of the Family Code places upon the
present spouse the burden of complying with the stringent requirement of "well-founded belief" which can only
be discharged upon a showing of proper and honest-to-goodness inquiries and efforts to ascertain not only the
absent spouse’s whereabouts but, more importantly, whether the absent spouse is still alive or is already dead.16

This strict standard approach ensures that a petition for declaration of presumptive death under Article 41 of the
Family Code is not used as a tool to conveniently circumvent the laws in light of the State’s policy to protect
and strengthen the institution of marriage. Courts should never allow procedural shortcuts but instead should see
to it that the stricter standard required by the Family Code is met.17

Accordingly, in a string of cases, this Court has denied petitions for the declaration of presumptive death on the
said basis.

In Republic of the Philippines v. Court of Appeals,18 the Court ruled that the present spouse failed to prove that
he had a well-founded belief that his absent spouse was already dead before he filed his petition. His efforts to
locate his absent wife allegedly consisted of the following:
(1) He went to his in-laws’ house to look for her;

(2) He sought the barangay captain’s aid to locate her;

(3) He went to her friends’ houses to find her and inquired about her whereabouts among her friends;

(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his free time;

(5) He went back to Catbalogan and again looked for her; and

(6) He reported her disappearance to the local police station and to the NBI.

Despite these claimed "earnest efforts," the Court still ruled against the present spouse. The Court explained that
he failed to present the persons from whom he made inquiries and only reported his wife’s absence after the
OSG filed its notice to dismiss his petition in the RTC. Similarly in Republic v. Granada,19 the Court ruled that
the present spouse failed to prove her "well-founded belief" that her absent spouse was already dead prior to her
filing of the petition. She simply did not exert diligent efforts to locate her husband either in the country or in
Taiwan, where he was known to have worked. Moreover, she did not explain her omissions. In said case, the
Court wrote:

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

In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who had been
missing for more than four years. He testified that his efforts to find her consisted of:

(1) Searching for her whenever his ship docked in England;

(2) Sending her letters which were all returned to him; and

(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless.

The Court held that the present spouse’s methods of investigation were too sketchy to form a basis that his wife
was already dead. It stated that the pieces of evidence only proved that his wife had chosen not to communicate
with their common acquaintances, and not that she was dead.

Recently, in Republic v. Cantor20 (Cantor), the Court considered the present spouse’s efforts to have fallen
short of the "stringent standard" and lacked the degree of diligence required by jurisprudence as she did not
actively look for her missing husband; that she did not report his absence to the police or seek the aid of the
authorities to look for him; that she did not present as witnesses her missing husband’s relatives or their
neighbors and friends, who could corroborate her efforts to locate him; that these persons, from whom she
allegedly made inquiries, were not even named; and that there was no other corroborative evidence to support
her claim that she conducted a diligent search. In the Court’s view, the wife merely engaged in a "passive
search" where she relied on uncorroborated inquiries from her in laws, neighbors and friends. She, thus, failed
to conduct a diligent search. Her claimed efforts were insufficient to form a well-founded belief that her
husband was already dead.
In this case, Edna claimed to have done the following to determine the whereabouts and the status of her
husband:

1. She took a vacation/leave of absence from her work and returned to the Philippines to look for her husband.

2. She inquired from her parents-in-law in Iligan City and from their common friends in the same city and in
Valencia City.

3. She went as far as the birthplace of her husband in Escalante, Negros Oriental, so she could inquire from her
husband’s relatives.

Despite her efforts, she averred that she received negative responses from them because none of them had
knowledge of the existence of her husband who had been missing for 15 years. Applying the standard set forth
by the Court in the previously cited cases, particularly Cantor, Edna’s efforts failed to satisfy the required well-
founded belief of her absent husband’s death. Her claim of making diligent search and inquiries remained
unfounded as it merely consisted of bare assertions without any corroborative evidence on record. She also
failed to present any person from whom she inquired about the whereabouts of her husband. She did not even
present her children from whom she learned the disappearance of her husband. In fact, she was the lone witness.
Following the basic rule that mere allegation is not evidence and is not equivalent to proof,21 the Court cannot
give credence to her claims that she indeed exerted diligent efforts to locate her husband.

Moreover, no document was submitted to corroborate the allegation that her husband had been missing for at
least fifteen (15) years already. As the OSG observed, there was not even any attempt to seek the aid of the
authorities at the time her husband disappeared. In Cantor, the present spouse claimed to have sought the aid of
the authorities or, at the very least, reported his absence to the police.22 Yet, the Court denied her pleas.

Verily, it makes sense to conclude that her efforts were not diligent and serious enough to give meaning to her
well-founded belief that Romeo was already dead. Suffice it to state that her petition should have been denied at
the first instance. The RTC, however, granted it, reasoning

xxx that it was in 1993 when the petitioner while abroad heard the news from her children that her husband left
their conjugal home xxx without informing the children nor communicating with the herein petitioner as to the
reasons why he left their family abode nor giving them any information as to his whereabouts; that herein
petitioner took vacation/leave of absence from her work and return to the Philippines, in order to look for her
husband and made some inquiries with her parents-in-law in Iligan City, from their common friends in Iligan
City and in Valencia City, and even went as far as the birthplace of her husband, particularly at Escalante,
Negros Oriental, inquiring from her husband's relatives, but she only got negative response from them since
none of them have any knowledge as to the present existence of her husband that since the year 1993 up to the
present, a period of about fifteen [15] years have elapsed, the person and the body of petitioner's husband could
not be found, located nor traced as there is no any information as to his existence or whereabouts.23

Worse, the CA affirmed the RTC decision when it dismissed the petition for certiorari filed by the OSG. The
CA should have realized the glaring and patent disregard by the RTC of the rulings in similar situations where
petitions for declaration of presumptive death have been denied by this Court. By declaring Romeo
presumptively dead, the CA clearly ignored this Court's categorical pronouncements.

WHEREFORE, the petition is GRANTED. Accordingly, the October 18, 2013 Decision and the January 8,
2014 Resolution of the Court of Appeals are hereby REVERSED and SET ASIDE. The petition of respondent
Edna Orcelino-Villanueva to have her husband declared presumptively dead is DENIED.

SO ORDERED.
A.C. No. 5108 May 26, 2005

ROSA F. MERCADO, complainant,

vs.
ATTY. JULITO D. VITRIOLO, respondent.

DECISION

PUNO, J.:

Rosa F. Mercado filed the instant administrative complaint against Atty. Julito D. Vitriolo, seeking his
disbarment from the practice of law. The complainant alleged that respondent maliciously instituted a criminal
case for falsification of public document against her, a former client, based on confidential information gained
from their attorney-client relationship.

Let us first hearken to the facts.

Complainant is a Senior Education Program Specialist of the Standards Development Division, Office of
Programs and Standards while respondent is a Deputy Executive Director IV of the Commission on Higher
Education (CHED).1

Complainant's husband filed Civil Case No. 40537 entitled "Ruben G. Mercado v. Rosa C. Francisco," for
annulment of their marriage with the Regional Trial Court (RTC) of Pasig City. This annulment case had been
dismissed by the trial court, and the dismissal became final and executory on July 15, 1992.2

In August 1992, Atty. Anastacio P. de Leon, counsel of complainant, died. On February 7, 1994, respondent
entered his appearance before the trial court as collaborating counsel for complainant.3

On March 16, 1994, respondent filed his Notice of Substitution of Counsel,4 informing the RTC of Pasig City
that he has been appointed as counsel for the complainant, in substitution of Atty. de Leon.

It also appears that on April 13, 1999, respondent filed a criminal action against complainant before the Office
of the City Prosecutor, Pasig City, entitled "Atty. Julito Vitriolo, et al. v. Rose Dela Cruz F. Mercado," and
docketed as I.S. No. PSG 99-9823, for violation of Articles 171 and 172 (falsification of public document) of
the Revised Penal Code.5 Respondent alleged that complainant made false entries in the Certificates of Live
Birth of her children, Angelica and Katelyn Anne. More specifically, complainant allegedly indicated in said
Certificates of Live Birth that she is married to a certain Ferdinand Fernandez, and that their marriage was
solemnized on April 11, 1979, when in truth, she is legally married to Ruben G. Mercado and their marriage
took place on April 11, 1978.

Complainant denied the accusations of respondent against her. She denied using any other name than "Rosa F.
Mercado." She also insisted that she has gotten married only once, on April 11, 1978, to Ruben G. Mercado.

In addition, complainant Mercado cited other charges against respondent that are pending before or decided
upon by other tribunals – (1) libel suit before the Office of the City Prosecutor, Pasig City;6 (2) administrative
case for dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, pursuit of private
business, vocation or profession without the permission required by Civil Service rules and regulations, and
violations of the "Anti-Graft and Corrupt Practices Act," before the then Presidential Commission Against Graft
and Corruption;7 (3) complaint for dishonesty, grave misconduct, and conduct prejudicial to the best interest of
the service before the Office of the Ombudsman, where he was found guilty of misconduct and meted out the
penalty of one month suspension without pay;8 and, (4) the Information for violation of Section 7(b)(2) of
Republic Act No. 6713, as amended, otherwise known as the Code of Conduct and Ethical Standards for Public
Officials and Employees before the Sandiganbayan.9

Complainant Mercado alleged that said criminal complaint for falsification of public document (I.S. No. PSG
99-9823) disclosed confidential facts and information relating to the civil case for annulment, then handled by
respondent Vitriolo as her counsel. This prompted complainant Mercado to bring this action against respondent.
She claims that, in filing the criminal case for falsification, respondent is guilty of breaching their privileged
and confidential lawyer-client relationship, and should be disbarred.

Respondent filed his Comment/Motion to Dismiss on November 3, 1999 where he alleged that the complaint
for disbarment was all hearsay, misleading and irrelevant because all the allegations leveled against him are
subject of separate fact-finding bodies. Respondent claimed that the pending cases against him are not grounds
for disbarment, and that he is presumed to be innocent until proven otherwise.10 He also states that the decision
of the Ombudsman finding him guilty of misconduct and imposing upon him the penalty of suspension for one
month without pay is on appeal with the Court of Appeals. He adds that he was found guilty, only of simple
misconduct, which he committed in good faith.11

In addition, respondent maintains that his filing of the criminal complaint for falsification of public documents
against complainant does not violate the rule on privileged communication between attorney and client because
the bases of the falsification case are two certificates of live birth which are public documents and in no way
connected with the confidence taken during the engagement of respondent as counsel. According to respondent,
the complainant confided to him as then counsel only matters of facts relating to the annulment case. Nothing
was said about the alleged falsification of the entries in the birth certificates of her two daughters. The birth
certificates are filed in the Records Division of CHED and are accessible to anyone.12

In a Resolution dated February 9, 2000, this Court referred the administrative case to the Integrated Bar of the
Philippines (IBP) for investigation, report and recommendation.13

The IBP Commission on Bar Discipline set two dates for hearing but complainant failed to appear in both.
Investigating Commissioner Rosalina R. Datiles thus granted respondent's motion to file his memorandum, and
the case was submitted for resolution based on the pleadings submitted by the parties.14

On June 21, 2003, the IBP Board of Governors approved the report of investigating commissioner Datiles,
finding the respondent guilty of violating the rule on privileged communication between attorney and client, and
recommending his suspension from the practice of law for one (1) year.

On August 6, 2003, complainant, upon receiving a copy of the IBP report and recommendation, wrote Chief
Justice Hilario Davide, Jr., a letter of desistance. She stated that after the passage of so many years, she has now
found forgiveness for those who have wronged her.

At the outset, we stress that we shall not inquire into the merits of the various criminal and administrative cases
filed against respondent. It is the duty of the tribunals where these cases are pending to determine the guilt or
innocence of the respondent.

We also emphasize that the Court is not bound by any withdrawal of the complaint or desistance by the
complainant. The letter of complainant to the Chief Justice imparting forgiveness upon respondent is
inconsequential in disbarment proceedings.

We now resolve whether respondent violated the rule on privileged communication between attorney and client
when he filed a criminal case for falsification of public document against his former client.
A brief discussion of the nature of the relationship between attorney and client and the rule on attorney-client
privilege that is designed to protect such relation is in order.

In engaging the services of an attorney, the client reposes on him special powers of trust and confidence. Their
relationship is strictly personal and highly confidential and fiduciary. The relation is of such delicate, exacting
and confidential nature that is required by necessity and public interest.15 Only by such confidentiality and
protection will a person be encouraged to repose his confidence in an attorney. The hypothesis is that abstinence
from seeking legal advice in a good cause is an evil which is fatal to the administration of justice.16 Thus, the
preservation and protection of that relation will encourage a client to entrust his legal problems to an attorney,
which is of paramount importance to the administration of justice.17 One rule adopted to serve this purpose is
the attorney-client privilege: an attorney is to keep inviolate his client's secrets or confidence and not to abuse
them.18 Thus, the duty of a lawyer to preserve his client's secrets and confidence outlasts the termination of the
attorney-client relationship,19 and continues even after the client's death.20 It is the glory of the legal profession
that its fidelity to its client can be depended on, and that a man may safely go to a lawyer and converse with him
upon his rights or supposed rights in any litigation with absolute assurance that the lawyer's tongue is tied from
ever disclosing it.21 With full disclosure of the facts of the case by the client to his attorney, adequate legal
representation will result in the ascertainment and enforcement of rights or the prosecution or defense of the
client's cause.

Now, we go to the rule on attorney-client privilege. Dean Wigmore cites the factors essential to establish the
existence of the privilege, viz:

(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be
waived.22

In fine, the factors are as follows:

(1) There exists an attorney-client relationship, or a prospective attorney-client relationship, and it is by reason
of this relationship that the client made the communication.

Matters disclosed by a prospective client to a lawyer are protected by the rule on privileged communication
even if the prospective client does not thereafter retain the lawyer or the latter declines the employment.23 The
reason for this is to make the prospective client free to discuss whatever he wishes with the lawyer without fear
that what he tells the lawyer will be divulged or used against him, and for the lawyer to be equally free to obtain
information from the prospective client.24

On the other hand, a communication from a (prospective) client to a lawyer for some purpose other than on
account of the (prospective) attorney-client relation is not privileged. Instructive is the case of Pfleider v.
Palanca,25 where the client and his wife leased to their attorney a 1,328-hectare agricultural land for a period of
ten years. In their contract, the parties agreed, among others, that a specified portion of the lease rentals would
be paid to the client-lessors, and the remainder would be delivered by counsel-lessee to client's listed creditors.
The client alleged that the list of creditors which he had "confidentially" supplied counsel for the purpose of
carrying out the terms of payment contained in the lease contract was disclosed by counsel, in violation of their
lawyer-client relation, to parties whose interests are adverse to those of the client. As the client himself,
however, states, in the execution of the terms of the aforesaid lease contract between the parties, he furnished
counsel with the "confidential" list of his creditors. We ruled that this indicates that client delivered the list of
his creditors to counsel not because of the professional relation then existing between them, but on account of
the lease agreement. We then held that a violation of the confidence that accompanied the delivery of that list
would partake more of a private and civil wrong than of a breach of the fidelity owing from a lawyer to his
client.
(2) The client made the communication in confidence.

The mere relation of attorney and client does not raise a presumption of confidentiality.26 The client must
intend the communication to be confidential.27

A confidential communication refers to information transmitted by voluntary act of disclosure between attorney
and client in confidence and by means which, so far as the client is aware, discloses the information to no third
person other than one reasonably necessary for the transmission of the information or the accomplishment of the
purpose for which it was given.28

Our jurisprudence on the matter rests on quiescent ground. Thus, a compromise agreement prepared by a lawyer
pursuant to the instruction of his client and delivered to the opposing party,29 an offer and counter-offer for
settlement,30 or a document given by a client to his counsel not in his professional capacity,31 are not
privileged communications, the element of confidentiality not being present.32

(3) The legal advice must be sought from the attorney in his professional capacity.33

The communication made by a client to his attorney must not be intended for mere information, but for the
purpose of seeking legal advice from his attorney as to his rights or obligations. The communication must have
been transmitted by a client to his attorney for the purpose of seeking legal advice.34

If the client seeks an accounting service,35 or business or personal assistance,36 and not legal advice, the
privilege does not attach to a communication disclosed for such purpose.

Applying all these rules to the case at bar, we hold that the evidence on record fails to substantiate complainant's
allegations. We note that complainant did not even specify the alleged communication in confidence disclosed
by respondent. All her claims were couched in general terms and lacked specificity. She contends that
respondent violated the rule on privileged communication when he instituted a criminal action against her for
falsification of public documents because the criminal complaint disclosed facts relating to the civil case for
annulment then handled by respondent. She did not, however, spell out these facts which will determine the
merit of her complaint. The Court cannot be involved in a guessing game as to the existence of facts which the
complainant must prove.

Indeed, complainant failed to attend the hearings at the IBP. Without any testimony from the complainant as to
the specific confidential information allegedly divulged by respondent without her consent, it is difficult, if not
impossible to determine if there was any violation of the rule on privileged communication. Such confidential
information is a crucial link in establishing a breach of the rule on privileged communication between attorney
and client. It is not enough to merely assert the attorney-client privilege.37 The burden of proving that the
privilege applies is placed upon the party asserting the privilege.38

IN VIEW WHEREOF, the complaint against respondent Atty. Julito D. Vitriolo is hereby DISMISSED for lack
of merit.

SO ORDERED.