EN BANC
G.R. No. 184621, December 10, 2013
REPUBLIC OF THE PHILIPPINES, Petitioner, v. MARIA FE ESPINOSA CANTOR, Respondent.
D E C I S I O N
BRION, J.:
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.5ChanRoblesVirtualawlibrary
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.7ChanRoblesVirtualawlibraryThe petitioner brought the matter via a Rule 45 petition before this Court.
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.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:chanRoblesvirtualLawlibrary
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]
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 RTC to give due course to the Republic’s appeal and order the transmittal of the entire records of the case to the Court of Appeals.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
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]
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.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.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern summary court proceedings in the Family Code:
“ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without regard to technical rules.”
In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and three of the same title. It states:
“ART. 253. The foregoing rules in Chapters 2 and 3 hereof shall likewise govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable.” (Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
“ART. 247. The judgment of the court shall be immediately final and executory.”
By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and executory. As a matter of course, it follows that no appeal can be had of the trial court’s judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To be sure, even if the Court’s original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an unrestricted freedom of choice of court forum. [emphasis ours]
The Present Spouse Has the Burden of Proof to Show that All the Requisites Under Article 41 of the Family Code Are Present
- 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;
- That the present spouse wishes to remarry;
- That the present spouse has a well–founded belief that the absentee is dead; and
- That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.12
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 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.18ChanRoblesVirtualawlibraryii. Republic v. Granada19
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 inquired about 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
These efforts, however, fell short of the “stringent standard” and degree of diligence required by jurisprudence for the following reasons:
(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.
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:chanRoblesvirtualLawlibrary
[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:chanRoblesvirtualLawlibraryStrict Standard Prescribed Under Article 41 of the Family Code Is for the Present Spouse’s BenefitThe State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.
Endnotes:
1 Under Rule 45 of the Rules of Court; rollo, pp. 9–31.
2 Id. at 33–41.
3 Id. at 42–47.
4 Id. at 48.
5 Id. at 47.
6 Under Rule 65 of the Rules of Court.
7Rollo, p. 40.
8Philippine National Bank v. Spouses Bernard and Cresencia Marañon, G.R. No. 189316, July 1, 2013.
9 489 Phil. 761, 767 (2005).
10 130 Phil. 459, 464 (1968).
11 G.R. No. 161062, July 31, 2009, 594 SCRA 560, 566–567.
12Republic v. Nolasco, G.R. No. 94053, March 17, 1993, 220 SCRA 20, 25–26; emphasis ours.
13Guidangen v. Wooden, G.R. No. 174445, February 15, 2012, 666 SCRA 119, 131.
14Supra note 12, at 25; emphases ours, italics supplied, citations omitted.
15Republic of the Philippines v. Court of Appeals (Tenth Div.), 513 Phil. 391, 397–398 (2005).
16 Ibid.
17 Ibid.
18 Id. at 397–398; emphases ours.
19 G.R. No. 187512, June 13, 2012, 672 SCRA 432, 444–445; emphasis ours.
20Supra note 15.
21Supra note 12.
22Supra note 15, at 398.
23 Id. at 396; emphasis ours, italics supplied.
24 Ibid.
25 Ibid.
26 CONSTITUTION, Article 2, Section 12.
27 G.R. Nos. 96602 and 96715, November 19, 1991, 203 SCRA 750, 761.
28Manuel v. People, 512 Phil. 818, 836 (2005).
VELASCO, JR., J.:
I vote for the granting of the petition.
The facts of this case are simple. Sometime in January 1998, Jerry F. Cantor (Jerry) left his wife, Maria Fe Espinosa Cantor (Maria Fe), after a violent quarrel. Since then, Maria had not seen or heard from him.
After more than four (4) years of not seeing or hearing from Jerry, Maria Fe filed a petition for the declaration of presumptive death of her husband with the Regional Trial Court, Branch 25, Koronadal City, South Cotabato (RTC). In sum, Maria Fe alleged that she conducted a diligent search for her husband and exerted earnest efforts to find him. She allegedly inquired from her mother–in–law, brothers–in–law, sisters–in–law, neighbors, and friends but no one could tell her where Jerry was. Whenever she went to a hospital, she made it a point to look through the patients’ directory, hoping to find Jerry. On the basis of the foregoing, Maria Fe claimed that she had a well–founded belief that her husband, Jerry, was already dead.
The RTC granted her petition and thus declared Jerry as presumptively dead pursuant to Article 41 of the Family Code. The Court of Appeals affirmed in toto the RTC Decision and held that there had been no grave abuse of discretion on the part of the RTC in having declared Jerry presumptively dead. Dissatisfied with the ruling of the Court of Appeals (CA), the Office of the Solicitor General (OSG) filed the present Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure arguing that Maria Fe did not have a well–founded belief that Jerry was dead.
I fully agree that whether or not one has a “well–founded belief” that his or her spouse is dead depends on the unique circumstances of each case and that there is no set standard or procedure in determining the same. It is my opinion that Maria Fe failed to conduct a search with such diligence as to give rise to a “well–founded belief” that her husband is dead. Further, the circumstances of Jerry’s departure and Maria Fe’s behavior after he left make it difficult to consider her belief a well–founded one.
To reiterate, Maria Fe’s alleged “well–founded” belief arose when: (1) Jerry’s relatives and friends could not give her any information on his whereabouts; and (2) she did not find Jerry’s name in the patients’ directory whenever she went to a hospital. To my mind, Maria Fe’s reliance on these alone makes her belief weak and flimsy rather than “well–founded.”
Further, it appears that Maria Fe did not actively look for her husband in hospitals and that she searched for Jerry’s name in these hospitals’ list of patients merely as an afterthought. Moreover, it may be sensed from the given facts that her search was not intentional or planned. This may be noted from the fact that whenever Maria Fe went to a hospital, she made it a point to look through the patients’ directory, hoping to find Jerry. Verily, it is as if she searched the patient’s directory only when she was in a hospital by coincidence.’s search for Jerry was far from diligent. At the very least, Maria Fe should have looked for Jerry in the places he frequented. Moreover, she should have sought the assistance of the barangay or the police in searching for her husband, like what could be reasonably expected of any person with a missing spouse or loved one. These very basic things, she did not do. It may have been advantageous, too, if Maria Fe approached the media for help or posted photos of Jerry in public places with requests for information on his whereabouts. While I agree that We cannot ask the impossible from a spouse who was abandoned, it is not too much to expect the foregoing actions from someone who has lost a spouse.
This Court has been consistent in its strict application of Article 41 of the Family Code. This is clear in the cases cited in the ponencia where the Court, notwithstanding the evidence on the efforts of the present spouse to search for the absent spouse, still found that the present spouse’s search was not diligent enough and that the said spouse failed to prove that he or she had a well–founded belief that the absent spouse was already dead. I would like to share my observation that compared to Maria Fe, the present spouses in the said cases exerted similar, or if not, even more effort in their searches, and presented similar evidence to prove the same. Yet, the Court found their efforts and evidence wanting.
For instance, in Republic v. Court of Appeals and Alegro,1 respondent Alegro testified that when his wife Lea went missing, he asked Lea’s parents as well as their friends if they knew where she was. He stated that he went to Manila to search for her among her friends and would even look for her in malls. Alegro reported Lea’s disappearance to the local police station and the National Bureau of Investigation. Despite these efforts, this Court held that Alegro failed to prove that he had a well–founded belief, before he filed his petition in the RTC, that his spouse was already dead. The Court explained:
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.Similarly, in Republic v. Nolasco,3 this Court ruled in favor of the Republic and agreed with the position of the OSG that the respondent therein failed to establish that he had a well–founded belief that his absent wife was dead. In this case, Nolasco, who was a seaman, went back home to Antique upon learning that his wife left their conjugal abode. He testified that no one among their friends could tell him where his wife was. He claimed that his efforts to look for her whenever his ship docked in England proved fruitless and also stated that all the letters he had sent to his missing spouse at an address in Liverpool, England, the address of the bar where they met, were all returned to him. This Court believed that 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. In the said case, it was held:chanRoblesvirtualLawlibrary
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 Lea’s 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 Lea’s whereabouts considering that Lea’s 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.2ChanRoblesVirtualawlibrary
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 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.Also, in Republic v. Granada,4 while the Court denied the petition of the OSG on procedural grounds and consequently upheld the declaration of presumptive death of the missing husband, this Court agreed with the OSG’s assertion that the respondent therein was not diligent in her search for her husband when she, just like Maria Fe in this case, merely inquired about the whereabouts of his spouse from the latter’s relatives and failed to seek information and assistance from government agencies and the mass media. The Court held:chanRoblesvirtualLawlibrary“Q: After arriving here in San Jose, Antique, did you exert efforts to inquire the whereabouts of your wife: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 Appeals’ justification of the mistake, to wit:chanRoblesvirtualLawlibrary
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).”“. . . 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 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 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 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.
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 inquired about 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.Were it not for the finality of the RTC ruling, the declaration of presumptive death should have been recalled and set aside for utter lack of factual basis.
The Republic’s arguments are well–taken. Nevertheless, we are constrained to deny the Petition.
The RTC ruling on the issue of whether respondent was able to prove her “well–founded belief” that her absent spouse was already dead prior to her filing of the Petition to declare him presumptively dead is already final and can no longer be modified or reversed. Indeed, “[n]othing is more settled in law than that when a judgment becomes final and executory, it becomes immutable and unalterable. The same may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law.”5ChanRoblesVirtualawlibrary
Endnotes:
1 G.R. No. 159614, December 9, 2005, 477 SCRA 277..
2 Id. at 284–285.
3 G.R. No. 94053, March 17, 1993, 220 SCRA 20.
4 G.R. No. 187512, June 13, 2012, 672 SCRA 432.
5 Id. at 445
WHEREFORE, the Court hereby declares, as it hereby declared [sic] 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.13ChanRoblesVirtualawlibraryNot satisfied with the Regional Trial Court’s order, the Republic of the Philippines through the Office of the Solicitor General filed a petition for certiorari with the Court of Appeals.
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.Articles 238, 247, and 252 of Title XI of the Family Code (Summary Judicial Proceedings in the Family Law) provide:chanRoblesvirtualLawlibrary
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. 238. Until modified by the Supreme Court, the procedural rules provided for in this Title shall apply as regards separation in fact between husband and wife, abandonment by one of the other, and incidents involving parental authority.From these provisions, it is clear that a petition for the declaration of presumptive death of an absent spouse is a summary proceeding; more so, judgments of a trial court relating to such petitions shall be considered immediately final and executory.
Art. 247. The judgment of the court shall be immediately final and executory.
Art. 252. The rules in Chapter 2 hereof shall also govern summary proceedings under this Chapter insofar as they are applicable. (n)chanroblesvirtualawlibrary
At any rate, four years after Jomoc, this Court settled the rule regarding appeal of judgments rendered in summary proceedings under the Family Code when it ruled in Republic v. Tango:chanRoblesvirtualLawlibraryStrict standards should not be imposed upon the present spouse in evaluating his or her efforts to search for the absent spouse“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.In sum, under Article 41 of the Family Code, the losing party in a summary proceeding for the declaration of presumptive death may file a petition for certiorari with the CA on the ground that, in rendering judgment thereon, the trial court committed grave abuse of discretion amounting to lack of jurisdiction. From the decision of the CA, the aggrieved party may elevate the matter to this Court via a petition for review on certiorari under Rule 45 of the Rules of Court.20ChanRoblesVirtualawlibrary
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:chanRoblesvirtualLawlibraryART. 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:chanRoblesvirtualLawlibraryART. 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.)chanroblesvirtualawlibraryIn plain text, Article 247 in Chapter 2 of the same title reads:chanRoblesvirtualLawlibraryART 247. The judgment of the court shall be immediately final and executory.By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and executory. As a matter of course, it follows that no appeal can be had of the trial court’s judgment in a summary proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of Courts. To be sure, even if the Court’s original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the Court of Appeals in certain cases, such concurrence does not sanction an unrestricted freedom of choice of court forum. From the decision of the Court of Appeals, the losing party may then file a petition for review on certiorari under Rule 45 of the Rules of Court with the Supreme Court. This is because the errors which the court may commit in the exercise of jurisdiction are merely errors of judgment which are the proper subject of an appeal.”
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.From the text of Article 41, there are two substantive requirements and two procedural requirements for a spouse to be declared presumptively dead for the purpose of remarriage.
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.
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.”Applying its construction of what constitutes a “well–founded belief” in Republic v. Nolasco,24 this court reversed the Regional Trial Court and Court of Appeals decisions which declared an absent spouse presumptively dead as the present spouse was deemed to have “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.”25 In 2005, Republic of the Philippines v. Court of Appeals and Alegro,26 which relied heavily on Nolasco, likewise held that “the respondent failed to prove that he had a well–founded belief x x x that his spouse x x x was already dead.”27 In the 2012 case of Republic v. Granada,28 while this court denied the Office of the Solicitor General’s petition on procedural grounds, this court nevertheless favorably considered the Office of the Solicitor General’s assertions that “respondent was allegedly not diligent in her search for her husband.”29
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, 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.23ChanRoblesVirtualawlibrary
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 or 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.37 (Emphasis supplied)chanroblesvirtualawlibraryWhat was involved in Biasbas was a mere suspicion – totally bereft of any other rational basis. Moreover, the defendant himself admitted that all he had was a mere suspicion.
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.38 (Underscoring supplied)chanroblesvirtualawlibraryPrecisely, it is a deserting spouse’s failure to comply with what is reasonably expected of him or her and to fulfill the responsibilities that are all but normal to a spouse which makes reasonable (i.e., well–founded) the belief that should he or she fail to manifest his or her presence within a statutorily determined reasonable period, he or 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”39 such that it is not the business of the law to assume any other circumstance than that a spouse is deceased in case he or she becomes absent.
Endnotes:
1 This order was dated August 27, 2008 and docketed under CA–G.R. SP. No. 01558–MIN, rollo, p. 33.
2 This order was dated December 15, 2006, rollo, p. 42.
3Rollo, p. 48–50. This petition was docketed as Special Proceeding No. 313–25.
4 This petition falls under Article 41 of the Family Code.
5Rollo, p. 51.
6 Id. at 34 and 44.
7 Id. at 45.
8 Id. at 48.
9 Id. at 49.
10 Id. at 34.
11 Id.
12 Id. at 42. This order was dated December 15, 2006.
13 Id. at 47.
14 Id. at 35.
15 Id. at 16.
16 Id. at 17–19.
17 Id. at 24.
18 Id. at 23.
19 G.R. No. 187512, June 13, 2012, 672 SCRA 432. [Second Division, per Sereno, J.]
20 Id. at 440–441.
21 Title III
Rights and Obligations Between Husband and Wife
Art. 68. The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support.
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family.
Art. 70. The spouses are jointly responsible for the support of the family. The expenses for such support and other conjugal obligations shall be paid from the community property and, in the absence thereof, from the income or fruits of their separate properties. In case of insufficiency or absence of said income or fruits, such obligations shall be satisfied from the separate properties.
Art. 71. The management of the household shall be the right and the duty of both spouses. The expenses for such management shall be paid in accordance with the provisions of Article 70.
Art. 72. When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief.
Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds.In case of disagreement, the court shall decide whether or not:22 513 Phil. 391 (2005).
(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.
The foregoing provisions shall not prejudice the rights of creditors who acted in good faith.
23 Id. at 397–398.
24 G.R. No. 94053, March 17, 1993, 220 SCRA 20. [Third Division, per Feliciano, J.]
25 Id. at 26.
26Republic of the Philippines v. Court of Appeals and Alegro, supra.
27 Id. at 399.
28 G.R. No. 187512, June 13, 2012, 672 SCRA 432. [Second Division, per Sereno, J.]
29 Id. at 445.
30Rollo, p. 24.
31 Majority opinion, p. 12.
32Republic of the Philippines v. Court of Appeals and Alegro, supra note 22.
33 Id. at 398.
34Republic v. Nolasco, supra note 24.
35 25 Phil. 71 (1913).
36Republic v. Nolasco, supra note 24, at 26.
37United States v. Biasbas, supra at 73.
38 A.M. TOLENTINO, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES 281–282 (Vol. I, 1990) citing People v. Glab, 13 App. (2d) 528, 57 Pac. (2d) 588 and Harrington Estate, 140 Cal. 244, 73 Pac. 1000.
39 FAMILY CODE, Art. 68.