Republic vs Nolasco G.R. No. 94053; March 17, 1993 Ruling: No.
Ruling: No. The Court believes that respondent Nolasco failed to conduct a search for his
Doctrine: Requisites for the declaration of presumptive death under Article 41 of the Family
Code:
1. That the absent spouse has been missing for four consecutive years, or two consecutive
years if the disappearance occurred where there is danger of death under the circumstances
laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of presumptive
death of the absentee
Facts: On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court a
petition for the declaration of presumptive death of his wife Janet Monica Parker, involving
Article 41 of the Family Code. The petition prayed that respondent’s wife be declared
presumptively dead or, in the alternative, that the marriage be declared null and void.
The Republic of the Philippines opposed the petition through the Provincial Prosecutor of
Antique who had been deputized to assist the Solicitor-General in the instant case. The
Republic argued, first, that Nolasco did not possess a well-founded belief that the
absent spouse was already dead; and second, Nolasco’s attempt to have his marriage
annulled in the same proceeding was a cunning attempt to circumvent the law on marriage.
Respondent Nolasco testified that he was a seaman and that he had first met Janet
Monica Parker, a British subject, in a bar in England during one of his ship’s port calls. From
that chance meeting onwards, Janet Monica Parker lived with respondent Nolasco on his ship
for six months until they returned to respondent’s hometown of San Jose, Antique on 19
November 1980 after his seaman’s contract expired. On 15 January 1982, respondent married
Janet Monica Parker in San Jose, Antique, in Catholic rites officiated by Fr. Henry van Tilborg
in the Cathedral of San Jose.
He obtained another employment contract as a seaman and left his wife with his parents in
San Jose, Antique. Sometime in January 1983, while working overseas, respondent received a
letter from his mother informing him that Janet Monica had given birth to his son. The same
letter informed him that Janet Monica had left Antique.
Respondent further testified that his efforts to look for her himself whenever his ship docked in
England proved fruitless. He also stated that all the letters he had sent to his
missing spouse at No. 38 Ravena Road, Allerton, Liverpool, England, the address of the
bar where he and Janet Monica first met, were all returned to him. He also claimed that he
inquired from among friends but they too had no news of Janet Monica.
The trial court granted Nolasco’s petition hereby declaring the presumptively death of Janet
Monica Parker Nolasco, without prejudice to her reappearance.
The Republic appealed to the Court of Appeals contending that the trial court erred in declaring
Janet Monica Parker presumptively dead because respondent Nolasco had failed to show that
there existed a well founded belief for such declaration. The Court of Appeals affirmed the trial
court’s decision, holding that respondent had sufficiently established a basis to form a belief
that his absent spouse had already died.
Issue: Whether or not Nolasco has a well-founded belief that his wife is already dead.
missing wife with such diligence as to give rise to a “well-founded belief” that she is dead.
Pursuant to Article 41 of the Family Code, 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 fine,
respondent failed to establish that he had the well-founded belief required by law that his
absent wife was already dead that would sustain the issuance of a court order declaring Janet
Monica Parker presumptively dead. Thus, the Decision of the Court of Appeals affirming the
trial court’s decision declaring Janet Monica Parker presumptively dead is hereby reversed and
both Decisions are hereby nullified and set aside.
TOL-Noquiera vs. Villamor G.R. No. 84250 July 20, 1992
Doctrine: It is not necessary that a declaration of absence be made in a proceeding separate
from and prior to a petition for administration
CASE DIGEST: Questioned in this action is the dismissal of a petition filed by Daya Maria Tol-
Noquera for appointment as administratrix of the property of the absentee Remigio Tol.
FACTS: In order to recover the property of one Remigio Tol on December 1986, Daya Maria
Tol an alleged acknowledged natural child of the latter who had been missing for two years
since 1984. The petitioner claimed that a certain Diosdado Tol had fraudulently secured a free
patent over the absentee’s estate and had obtained title thereto in the name of Diosdado Tol.
In his opposition, Diosdado Tol, argued that Daya Maria Tol was not an acknowledged natural
child of Remigio Tol (absentee) and that the property sought to be administered by the
petitioner was covered by an original certificate of title issued in his name.
The lower court dismissed the petition on March 31, 1987, with the ground that it was only a
collateral attack against the Torrens title. The court also stated that it was useless to appoint
an administrator in view of the claim of a third person as she was the owner of the absentee’s
property.
That a motion was filed however it was denied by the lower court, hence this appeal filed on
June 4, 1984.
ISSUE: Whether or not Daya Maria Tol can be appointed as administratix when Remigio was
not yet declared presumptively dead.
HELD: Supreme Court held that It is not necessary that a declaration of absence be made in a
proceeding separate from and prior to a petition for administration. This was the ruling in
Reyes v. Alejandro, 3 reiterating Pejer v. Martinez. 4 In the latter case, the court declared that
the petition to declare the husband an absentee and the petition to place the management of
the conjugal properties in the hands of the wife could be combined and adjudicated in the
same proceeding.
The purpose of the cited rules is the protection of the interests and property of the absentee,
not of the administrator. Thus, the question of whether the administrator may inherit the
property to be administered is not controlling. What is material is whether she is one of those
allowed by law to seek the declaration of absence of Remigio Tol and whether she is
competent to be appointed as administratrix of his estate.
The issue of whether or not the property titled to Diosdado Tol is really owned by him should
be resolved in another proceeding. The right of Daya Maria Tol to be appointed administratrix
cannot be denied outright by reason alone of such issue. Hence, the petition was GRANTED.
SANTOS VS. SANTOS G.R. NO. 187061, OCTOBER 08, 2014
Statement of the Case: In his petition for certiorari, petitioner Celerina J. Santos assails the
Court of Appeals' resolutions dated November 28, 2008 and March 5, 2009. Celerina filed a
petition for annulment of judgment before the Court of Appeals on the grounds of extrinsic
fraud and lack of jurisdiction. The Court of Appeals dismissed the petition for the annulment of
the trial court's judgment declaring her presumptively dead.
Facts of the Case: On July 27, 2007, the Regional Trial Court of Tarlac City declared
petitioner Celerina J. Santos (Celerina) presumptively dead after her husband, respondent
Ricardo T. Santos (Ricardo), had filed a petition for declaration of absence or presumptive
death for the purpose of remarriage on June 15, 2007. Ricardo remarried on September 17,
2008.
Ricardo alleged that he exerted efforts to locate Celerina. He went to Celerina's parents in
Cubao, Quezon City, but they did not know their daughter's whereabouts. He also inquired
about her from other relatives and friends, but no one gave him any information. Ricardo
claimed that it was almost 12 years from the date of his Regional Trial Court petition since
Celerina left. He believed that she had passed away.
Celerina claimed that she learned about Ricardo's petition only sometime in October 2008
when she could no longer avail the remedies of new trial, appeal, petition for relief, or other
appropriate remedies.
On November 17, 2008, Celerina filed a petition for annulment of judgment before the Court of
Appeals on the grounds of extrinsic fraud and lack of jurisdiction. She argued that she was
deprived her day in court when Ricardo, despite his knowledge of her true residence,
misrepresented to the court that she was a resident of Tarlac City. According to Celerina, her
true residence was in Neptune Extension, Congressional Avenue, Quezon City. This residence
had been her and Ricardo's conjugal dwelling since 1989 until Ricardo left in May 2008. As a
result of Ricardo's misrepresentation, she was deprived of any notice of and opportunity to
oppose the petition declaring her presumptively dead.
Celerina claimed that all the allegations of Ricardo were fraudulent, that she never resided in
Tarlac and never left to work as a domestic helper abroad. Further, she also claimed that it
was not true that she had been absent for 12 years. Ricardo was aware that she never left
their conjugal dwelling in Quezon City. It was he who left the conjugal dwelling in May 2008 to
cohabit with another woman. Celerina referred to a joint affidavit executed by their children to
support her contention that Ricardo made false allegations in his petition. Celerina also argued
that the court did not acquire jurisdiction over Ricardo's petition because it had never been
published in a newspaper. She added that the Office of the Solicitor General and the Provincial
Prosecutor's Office were not furnished copies of Ricardo's petition.
The Court of Appeals issued the resolution dated November 28, 2008, dismissing Celerina's
petition for annulment of judgment for being a wrong mode of remedy. According to the Court
of Appeals, the proper remedy was to file a sworn statement before the civil registry, declaring
her reappearance in accordance with Article 42 of the Family Code.
Celerina filed a motion for reconsideration but the same was denied.
Issue: Whether or not Court of Appelas erred in dismissing Celerina’s petition on the ground
that the proper remedy is to file a sworn statement before the civil registry declaring her
reappearance as stated in Article 42 of the Family Code
Ruling: Yes. Annulment of judgment is the remedy when the Regional Trial Court's judgment,
order, or resolution has become final, and the remedies of new trial, appeal, petition for relief
or other appropriate remedies are no longer available through no fault of the petitioner. The
grounds for annulment of judgment are extrinsic fraud and lack of jurisdiction.
This court defined extrinsic fraud in Stilianopulos v. City of Legaspi. For fraud to become a
basis for annulment of judgment, it has to be extrinsic or actual. It is intrinsic when the
fraudulent acts pertain to an issue involved in the original action or where the acts constituting
the fraud were or could have been litigated, It is extrinsic or collateral when a litigant commits
acts outside of the trial which prevents a party from having a real contest, or from presenting
all of his case, such that there is no fair submission of the controversy.
The choice of remedy is important because remedies carry with them certain admissions,
presumptions, and conditions.
The Family Code provides that it is the proof of absence of a spouse for four consecutive
years, coupled with a well-founded belief by the present spouse that the absent spouse is
already dead, that constitutes a justification for a second marriage during the subsistence of
another marriage. The Family Code also provides that the second marriage is in danger of
being terminated by the presumptively dead spouse when he or she reappears. Moreover, a
close reading of the entire Article 42 reveals that the termination of the subsequent marriage
by reappearance is subject to several conditions: (1) the non-existence of a judgment annulling
the previous marriage or declaring it void ab initio; (2) recording in the civil registry of the
residence of the parties to the subsequent marriage of the sworn statement of fact and
circumstances of reappearance; (3) due notice to the spouses of the subsequent marriage of
the fact of reappearance; and (4) the fact of reappearance must either be undisputed or
judicially determined. The existence of these conditions means that reappearance does not
always immediately cause the subsequent marriage's termination. Reappearance of the
absent or presumptively dead spouse will cause the termination of the subsequent marriage
only when all the conditions enumerated in the Family Code are present. Hence, the
subsequent marriage may still subsist despite the absent or presumptively dead spouse's
reappearance (1) if the first marriage has already been annulled or has been declared a nullity;
(2) if the sworn statement of the reappearance is not recorded in the civil registry of the
subsequent spouses' residence; (3) if there is no notice to the subsequent spouses; or (4) if
the fact of reappearance is disputed in the proper courts of law, and no judgment is yet
rendered confirming, such fact of reappearance.
When subsequent marriages are contracted after a judicial declaration of presumptive death, a
presumption arises that the first spouse is already dead and that the second marriage is legal.
This presumption should prevail over the continuance of the marital relations with the first
spouse. The second marriage, as with all marriages, is presumed valid. The burden of proof to
show that the first marriage was not properly dissolved rests on the person assailing the
validity of the second marriage.
The choice of the proper remedy is also important for purposes of determining the status of the
second marriage and the liabilities of the spouse who, in bad faith, claimed that the other
spouse was absent.
A second marriage is bigamous while the first subsists. However, a bigamous subsequent
marriage may be considered valid when the following are present: (1) The prior spouse had
been absent for four consecutive years; (2) The spouse present has a well-founded belief that
the absent spouse was already dead; (3) There must be a summary proceeding for the
declaration of presumptive death of the absent spouse; and (4) There is a court declaration of
presumptive death of the absent spouse.
A subsequent marriage contracted in bad faith, even if it was contracted after a court
declaration of presumptive death, lacks the requirement of a well-founded belief that the
spouse is already dead. The first marriage will not be considered as validly terminated.
Marriages contracted prior to the valid termination of a subsisting marriage are generally
considered bigamous and void. Only a subsequent marriage contracted in good faith is
protected by law. Therefore, the party who contracted the subsequent marriage in bad faith is
also not immune from an action to declare his subsequent marriage void for being bigamous.
The prohibition against marriage during the subsistence of another marriage still applies.
The provision on reappearance in the Family Code as a remedy to effect the termination of the
subsequent marriage does not preclude the spouse who was declared presumptively dead
from availing other remedies existing in law. This court had, in fact, recognized that a
subsequent marriage may also be terminated by filing "an action in court to prove the
reappearance of the absentee and obtain a declaration of dissolution or termination of the
subsequent marriage.
Celerina seeks not merely the termination of the subsequent marriage but also the nullification
of its effects. She contends that reappearance is not a sufficient remedy because it will only
terminate the subsequent marriage but not nullify the effects of the declaration of her
presumptive death and the subsequent marriage.
Celerina is correct. Since an undisturbed subsequent marriage under Article 42 of the Family
Code is valid until terminated, the "children of such marriage shall be considered legitimate,
and the property relations of the spouses in such marriage will be the same as in valid
marriages. If it is terminated by mere reappearance, the children of the subsequent marriage
conceived before the termination shall still be considered legitimate. Moreover, a judgment
declaring presumptive death is a defense against prosecution for bigamy.
However, "a Petition for Declaration of Absolute Nullity of Void Marriages may be filed solely
by the husband or wife." This means that even if Celerina is a real party in interest who stands
to be benefited or injured by the outcome of an action to nullify the second marriage, this
remedy is not available to her.
Therefore, for the purpose of not only terminating the subsequent marriage but also of
nullifying the effects of the declaration of presumptive death and the subsequent marriage,
mere filing of an affidavit of reappearance would not suffice. Celerina's choice to file an action
for annulment of judgment will, therefore, lie.
Disposition: The case is remanded to the Court of Appeals for determination of the existence
of extrinsic fraud, grounds for nullity or annulment of the first marriage, and the merits of the
petition.
REPUBLIC VS. CANTOR G.R NO. 184621; DECEMBER 10, 2013
DOCTRINE: 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.
FACTS: 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. Thereafter, 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 Jerrys disappearance, the
respondent filed before the RTC a petition for her husbands declaration of presumptive death.
She claimed that she had a well-founded belief that Jerry was already dead. Despite inquiries
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 RTC issued an order granting the respondents petition and declaring Jerry presumptively
dead.
The CA through a petition for certiorari filed by the petitioner, Republic of the Philippines
affirmed in toto the latters order, thus:
The petitioner brought the matter via a Rule 45 petition before this Court . 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.
Likewise, petitioner posited that the respondent did not have a well-founded belief to justify the
declaration of her husbands presumptive death. It claims that the respondent failed to conduct
the requisite diligent search for her missing husband pursuant to the strict standard under
Article 41 of the Family Code.
ISSUES:
1) Whether 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 Article 41 of the
Family Code; and
(2) Whether the respondent had a well-founded belief that Jerry is already dead.
HELD: The decision of the Court of Appeals is overruled.
REMEDIAL LAW - Propriety of Certiorari as a Remedy
Courts Judgment in the Judicial Proceedings for Declaration of
Presumptive Death Is Final and Executory, Hence, Unappealable
As explained in Republic of the Phils. v. Bermudez-Lorino, 489 Phil. 761 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 RTC to give due course to the Republics 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.
Certiorari lies to challenge the decisions, judgments or final
These efforts, however, fell short of the "stringent standard" and degree of diligence required
by jurisprudence for the following reasons: (1) the respondent did not actively look for her
missing husband. 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; (2) she did not report
Jerrys absence to the police nor did she seek the aid of the authorities to look for him;
(3) she did not present as witnesses Jerrys 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; (4) there was no other corroborative evidence to support the
respondents 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 husbands whereabouts.

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.
The application of this stricter standard becomes even more imperative if we consider
the States policy to protect and strengthen the institution of marriage. Since marriage
serves as the family’s foundation and since it is the states policy to protect and
strengthen the family as a basic social institution, marriage should not be permitted to
be dissolved at the whim of the parties. In interpreting and applying Article 41, this is
the underlying rationale to uphold the sanctity of marriage.

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.

Hence, petitioners resort to certiorari under Rule 65 of the Rules of Court to question the RTCs
order declaring Jerry presumptively dead was proper.

CIVIL LAW - existence of well-founded belief

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.Republic v. Nolasco, G.R. No. 94053, March 17, 1993

In the case at bar, the respondents "well-founded belief" was anchored on her alleged "earnest
efforts" to locate Jerry by inquiries and through the patients directory when she went to the
hospital.