Bare assertions

An absent spouse may be presumed dead if the present spouse has a well-founded belief that the absent spouse is already dead. But what constitutes a “well-founded belief” that the absent spouse is already dead? This is the case of Mely and Mario.

After only a year of being married to each other and having a daughter named Lina, Mario left their conjugal dwelling to apply for work abroad. Since then, he has not come back to his family and his whereabouts have been unknown for a continuous period of almost nine years. Thus Mely filed a Petition for Declaration of Presumptive Death of Mario before the Regional Trial Court (RTC) pursuant to Article 41 of the Family Code (FC).

In the Petition she alleged and testified in court that she exerted efforts to locate the whereabouts of her husband. She went to Manila a year after Mario left them and stayed there for seven months to search for Mario, but her search proved futile. So she went back to their province and proceeded to Mario’s relative, only to find out that they have no knowledge of his whereabouts either.

Then about two years later she applied for employment abroad and worked overseas while at the same time searching for Mario. But she still failed to find him until she returned to the Philippines four years later.

On the basis of Mely’s allegations and testimony, the RTC declared Mario as presumptively dead subject to the restrictions and conditions imposed in Article 41 of the FC. The RTC said that the under the circumstances surrounding the absence of Mario, he may be declared as presumptively dead. From the time he left the conjugal dwelling for purposes of applying for work abroad, his whereabouts became unknown and has been absent for more than nine years.

For purposes of remarriage a period of four years is required by law. The RTC added that the well-founded belief required under the FC has been preponderantly established by Mely, even if she did not present any documentary evidence. To require her to wait longer in order to remarry would be unfair, the RTC ruled.

Upon appeal by the Office of the Solicitor General (OSG), the Court of Appeals (CA) upheld the RTC decision. It held that Mely exerted efforts to look for Mario, but she still failed to find him. So she was able to prove a well-founded belief that Mario was already dead. Was the RTC and the CA correct?

No, said the Supreme Court (SC). Mely failed to satisfy the “well founded belief” requirement in Article 41 of the Family Code. Such belief requires Mely to prove that it was the result of diligent and reasonable efforts to locate Mario and that based on these efforts and inquiries, she believes that Mario is already dead. It necessitates exertion of active effort, not a passive one. Article 41 of the FC places upon Mely the burden of complying with the stringent requirement of “well-founded belief” which can only be discharged upon showing of proper and honest-to-goodness inquiries and efforts to ascertain not only the whereabouts of Mario but, more importantly, whether he is still alive or is already dead.

Belief is a state of mind which may only be established by direct evidence, not circumstantial evidence that tends, even in a slight degree, to elucidate the inquiry or assist to a determination founded on truth. Proper and honest-to goodness inquiries and efforts is tantamount to a diligent and reasonable inquiries and search to ascertain Mario’s whereabouts.

Records of this case show that Mely’s earnest efforts only consisted of: (1) going to Manila from her province where she stayed for nine months to look for Mario and (2) going to Mario’s birthplace to inquire about his whereabouts from his family and relatives. When Mario’s family members denied knowing his whereabouts, Mely took it as gospel truth without even bothering to inquire from the neighbors and other disinterested persons as to the veracity of what they told her. She heavily relied on the uncorroborated and naturally biased statements of her husband’s relatives. She did not even present them to attest that she personally inquired about Mario’s whereabouts and that she exerted active efforts to ascertain his location and status. Mely’s bare assertions are insufficient, especially when their names and identity were not given nor were they presented as witnesses.

Furthermore, despite Mario’s absence for so many years, Mely never reported the matter to the local police or local government unit and sought its help in looking for her husband. When she was abroad, she did not coordinate with the Philippine consulate office to express her serious concern about the safety and welfare of her missing husband and asked for its assistance, which an ordinary person would have done under similar circumstances.

There being no basis on Mely’s “well-founded belief” that Mario is already dead, her petition for declaration of Mario’s presumptive death must be denied. This is the ruling in the case of Republic vs. Fenol, G.R. 212726, June 10, 2020.

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