Dear Atty. Chris,
I am a single mom. Fourteen years ago, my husband left and abandoned our home. I don’t know where to find him because his family never saw him again, too. I have a boyfriend now and I want to marry him since we’re turning eight years soon. Can I file a petition declaring my husband is presumptively dead? Thank you,
Dana
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Dear Dana,
We shall refer to the Family Code of the Philippines, which contains a provision that specifically applies to your question, to wit:
“Article 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present has a well-founded belief that the absent spouse was already dead.”
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“For the purpose of contracting a subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse.”
It is clear from this cited provision that the spouse must have been absent for four consecutive years and that the present spouse has a well-founded belief that the absentee is already dead. In the case of Philippines vs Sarenogon (GR 199194, 10 February 2016), the Supreme Court through Associate Justice Estela Perlas Bernabe stated:
“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 the exertion of active effort, not a passive one. The premise is that Article 41 of the Family Code places upon the present spouse the burden of complying with the stringent requirement of a “well-founded belief” which can only be discharged upon a showing of proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but more importantly, whether the latter is still alive or is already dead. 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 a mere allegation is not evidence. Whether or not the spouse present acted on a well-founded belief of the 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” (Emphases supplied).
Considering the aforementioned, you must present evidence that your husband has been absent for four consecutive years, and that you did a thorough, and determined search for your husband. You must prove that your belief (that your absent husband is already dead) resulted from your reasonable efforts and inquiries to locate your husband.
Hope this helps.
Atty. Chris Liquigan