Declaration of Absence vs.

Presumption of Death

--RULE 107 of the Rules of Court: ABSENTEES--

 Appointment of Representative

Sec. 1. Appointment of representative. - When a person disappears from his domicile, his
whereabouts being unknown, and without having left an agent to administer his property, or
the power conferred upon the agent has expired, any interested party, relative or friend, may
petition the Court of First Instance of the place where the absentee resided before his
disappearance for the appointment of a person to represent him provisionally in all that may be
necessary. In the City of Manila, the petition shall be filed in the Juvenile and Domestic Relations
Court.

 Basis
- This rule is based on Article 381 of the Civil Code which reads as follows:
- Art. 381. When a person disappears from his domicile, his whereabouts being unknown, and
without leaving an agent to administer his property, the judge, at the instance of an interested
party, a relative, or a friend, may appoint a person to represent him in all that may be necessary.
- This same rule shall be observed when under similar circumstances the power conferred
by the absentee has expired.
- Article 382 of the Civil Code, which is pertinent, reads as follows: Art. 382. The
appointment referred to in the preceding article having been made, the judge shall take the
necessary measures to safeguard the rights and interests of the absentee and shall specify the
powers, obligations and remuneration of his representative, regulating them, according to the
circumstances, by the rules concerning guardians 1.

 When petition is proper

- The petition being referred to in Section 1 of Rule 107 may only be initiated when the
absentee has left properties that need to be administered by a representative.
- As explained by Herrera in his book, the petition for the appointment of a
representative is also available when the power of a previously appointed agent to
administer such properties has expired.

 Provisional Representative

1
Herrera, pg. 543, 2005
- Section 1 of Rule 107 is clear on the imposition that the appointed representative by the
court shall only have such power “provisionally” until such absentee shall re-appear in
accordance with the provisions of law.
- The petition may be initiated by the following: (a) any interested party; (b) absentee’s
relative; or (c) absentee’s friend.

Declaration of Absence
Sec. 2. Declaration of absence; who may petition. - After the lapse of two (2) years from
his disappearance and without any news about the absentee or since the receipt of the last
news, or of five (5) years in case the absentee has left a person in charge of the
administration of his property, the declaration of his absence and appointment of a trustee
or administrator may be applied for by any of the following:
(a) The spouse present;
(b) The heirs instituted in a will, who may present an authentic copy of the same;
(c) The relatives who would succeed by the law of intestacy; and
(d) Those who have over the property of the absentee some right subordinated to the
condition of his death.
[Compare Section 2 of Rule 107 to the pertinent provisions of the New Civil Code and
Family Code regarding absentees and presumptive deaths:
New Civil Code, Article 390. After an absence of seven years, it being unknown whether or not the
absentee still lives, he shall be presumed dead for all purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of opening his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may be opened.

New Civil Code, Article 391. The following shall be presumed dead for all purposes, including the
division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not
been known for four years.

Family Code, 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. 

[--You might wonder why a declaration of absence in Section 2 of Rule 107 provides for a
different prescriptive period (two years or five years) compared to what is provided under the
New Civil Code and Family Code in cases of ordinary & extraordinary cases of presumed
deaths]
Is there a conflict between the Rules of court and the New Civil Code with respect to the
period of absences? NO CONFLICT. Both topics are the same to the extent that they deal with
“absentees”, but certain delimitations and parameters must stand between them:
(a) the topic on absentees under Rule 107 of the Rules of Court versus (b) the rules on
“presumptive deaths” under Arts 390, 391 of the New Civil Code and Art. 41 of the Family Code.
TO AVOID CONFUSION, HERE’S A SIMPLE RULE OF THUMB 
RULE 107 of the RULES OF COURT
a) Treats the issue on absentees “in general”. In other words, it only
appertains to a declaration that the said person is “ABSENT” since he or
she disappeared from his/her domicile, and such whereabouts being
unknown to the public at large.
b) The declaration of absence is for the purpose of appointing a person to
represent the absentee provisionally in all that may be necessary,
including the administration of the absentee’s properties.
c) Rule 107 does not cover the consequences of presumed deaths under
Arts. 390, 391 of the NCC, and Art. 41 of the FC. Such as those of
remarriage, division of estate, succession, etc.
d) The petition for declaration of absence and appointment of
representative may only be commenced upon the lapse of two (2)
years where the absentee did not leave an administrator to his/her
properties.
e) But when the absentee had left someone to administer his/her
properties, a declaration of absence (only) may be filed after the lapse
of five (5) years
 ARTS 390, 391 of the NEW CIVIL CODE, and ART 41 of the FAMILY CODE
a) Also deals with absentees but with the intent and purpose of
recognizing said absentee as “PRESUMABLY DEAD”.
b) Its focal point is to establish a presumption of death to the absentee
for purposes of remarriage, succession, death benefits, etc.
c) The presumption of death shall arise upon the lapse of the period of
absences provided under Arts. 390, 391 of the NCC, and Art. 41 of the
FC, as the case may be.

Some authors would somehow commingle said topics in one container but then they fail to
make a proper segregation of the coverage and distinctions between Absentees under Rule
107, and Presumptive deaths under the NCC and the Family Code. Principles and cases
regarding “presumptive deaths” should not be outlined and discussed under Rule 107 of the
Rules of Court concerning absentees for it will just lead to confusion rather than harmony,
and most likely to remain obscure rather than being a plain and simple language. Thus, there
should be at least a separate discussion regarding the proceedings on “presumptive death”.
(See discussion somewhere below )

 Declaration of Absence May Be Made in Administration Proceedings

- 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 2,
reiterating Peyer v. Martinez3. 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.

 Declaration of absence is unnecessary where there are no properties

- The need to have a person judicially declared an absentee is when he has properties
which have to be taken care of or administered by a representative appointed by the
Court; the spouse of the absentee is asking for separation of property or his wife is
asking the Court that the administration of all classes of property in the marriage be
transferred to her. 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 may be

2
'141 SCRA 65
3
88 Phil. 72
 combined and adjudicated in the same proceedings4. Hence, there is no need for such
declaration if there are no properties5.

Contents of Petition
Sec. 3. Contents of petition. - The petition for the appointment of a representative, or for the
declaration of absence and the appointment of a trustee or an administrator, must show the
following:
(a) The jurisdictional facts;
(b) The names, ages, and residences of the heirs instituted in the will, copy of which shall be
presented, and of the relatives who would succeed by the law of intestacy;
(c) The names and residences of creditors and others who may have any adverse interest over
the property of the absentee;
(d) The probable value, location and character of the property belonging to the absentee. 

Notice and Publication; Mandatory

Sec. 4. Time of hearing; notice and publication thereof. - When a petition for the appointment
of a representative, or for the declaration of absence and the appointment of a trustee or
administrator, is filed, the court shall fix a date and place for the hearing thereof where all
concerned may appear to contest the petition.
Copies of the notice of the time and place fixed for the hearing shall be served upon the known
heirs, legatees, devisees, creditors and other interested persons, at least ten (10) days before
the day of the hearing, and shall be published once a week for three (3) consecutive weeks prior
to the time designated for the hearing, in a newspaper of general circulation in the province or
city where the absentee resides, as the court shall deem best. 
Sec. 5. Opposition. - Anyone appearing to contest the petition shall state in writing his grounds
therefor, and served a copy thereof on the petitioner and other interested parties on or before
the date designated for the hearing.
Sec. 6. Proof at hearing; order. - At the hearing, compliance with the provisions of section 4 of
this rule must first be shown. Upon satisfactory proof of the allegations in the petition, the court
shall issue an order granting the same and appointing the representative, trustee or
administrator for the absentee. The judge shall take the necessary measures to safeguard the
4
Peyer v. Martinez, 88 Phil. 72, 80.
5
Reyes v. Alejandrino, 141 SCRA 65 (1986).
rights and interests of the absentee and shall specify the powers, obligations and remuneration
of his representative, trustee or administrator, regulating them by the rules concerning
guardians.
In case of declaration of absence, the same shall not take effect until six (6) months after its
publication in a newspaper of general circulation designated by the court and in the Official
Gazette.

 Notice and publication

- Copies of the notice and hearing shall be served on known heirs and creditors and other
interested persons and published once a week and for three consecutive weeks in a
newspaper of general circulation in the place where the absentee resides6

 Declaration of absence; effectivity

- Section 6 provides that the declaration of absence shall not take effect until six months
after its publication in a newspaper of general circulation designated by the court and
the official gazette.

Who may be appointed

Sec. 7. Who may be appointed. - In the appointment of a representative, the spouse present
shall be preferred when there is no legal separation. If the absentee left no spouse, or if the
spouse present is a minor or otherwise incompetent, any competent person may be appointed
by the court.
In case of declaration of absence, the trustee or administrator of the absentee's property shall
be appointed in accordance with the preceding paragraph.

Termination of Administration
Sec. 8. Termination of administration. - The trusteeship or administration of the property of
the absentee shall cease upon order of the court in any of the following cases:
(a) When the absentee appears personally or by means of an agent;
(b) When the death of the absentee is proved and his testate or intestate heirs appear;
(c) When a third person appears, showing by a proper document that he has acquired the
absentee's property by purchase or other title.

6
Magdangal De Leon, pg. 549, 2015
In these cases, the trustee or administrator shall cease in the performance of his office, and the
property shall be placed at the disposal of those who may have a right thereto.

--Juris Tantum Presumption of Death; Declaration of Presumptive Death--

Now we understand the scope and coverage of Rule 107 (absentees) as we can now properly
juxtapose Rule 107 from the topic on presumptive deaths
The discussion is delimited only in matters which are about the procedural facets of the “juris
tantum presumption of death”. Issues and ramifications which rightly belongs to Family
Relations Law, (e.g., the status of the presumed dead person, effects of termination of
his/her prior and subsequent marriage, etc.), will be set aside. SPEC PRO LANG DANAY 

[To begin with, recall the basics of the topic “presumptive deaths” in Persons
and Family Relations Law ]:

Kinds of presumed death

1. Ordinary presumption-ordinary absence; absentee disappears under normal
conditions without danger or idea of death.
2. Extraordinary presumption-qualified absence; disappearance with great probability of
death.
 
Rules in ordinary presumption of death
In case of:
1. Disappearance upon or before reaching the age of seventy-five (75) years:
a. After an absence of seven (7) years -
The absentee is presumed dead for all purposes except, for succession.
b. After an absence of ten (10) years -
The absentee is presumed dead for all purposes including succession 7.
 
2. Disappearance at the age of seventy-six (76) years or older:
a. After an absence of five (5) years -
The absentee is presumed dead for all purposes including succession 8.

7
Art. 390, New Civil Code
8
Art. 390, New Civil Code
 When is the absentee presumed to have died under an ordinary presumption?
As explained above, at the end of the five (5), seven (7) or ten-year (10) period, as the
case may be.
 
Who are presumed dead for all purposes including succession in case of extraordinary
presumption of death?
1. Person on board a Vessel lost during a sea voyage, or an airplane which is missing,
who has not been heard of for four (4) years since the loss of the vessel or airplane;
2. Person in the Armed forces who has taken part in war, and has been missing for four
(4) years;
3. Person who has been in Danger of death under other circumstances and his existence
has not been known for four (4) years9.

Different rule under Art. 41 of the Family Code for purposes of remarriage
- Regardless of the age of the absentee, an absence of four consecutive years (4), and for
two (2) years if in extraordinary cases, shall make a “presumption juris tantum” of death
on the absentee spouse. Thus, permits the present spouse to remarry upon complying
with other conditions provided by law.10

 Absence vs Presumption of death

- The word “absence”, as also found under the rules on special proceedings, refers to a
person who is unheard of for a period of years, the same being not present at the place
of his domicile and his/her actual residence is unknown, and it is for this reason that his
existence is doubtful. By that reason, the law ipso facto recognizes the “presumption of
death” on the absentee.

 General Rule; NO need for petition or judicial declaration of presumptive death 11

- Again, the presumption arises from the law. By the lapse of the certain period
applicable, the person is presumed dead by operation of law.
- There is no such thing as an independent action for declaration of presumption of
death. The presumption may arise and be invoked in an action or special proceeding
which is NOT solely based on the presumption of death of the absentee.
- For example, in an action to claim death benefits against the absentee’s employer, the
present spouse may invoke the presumption of death without need of an independent
action for declaration of presumptive death12.

9
Art. 391, New Civil Code
10
Art. 41, Family Code
11
(Sta. Maria, pg. 298, 2015), (De Leon, pg. 543, 2015), (Herrera, pg. 548, 2005)
12
Estrellita Tadeo-Matias vs Republic, G.R. No. 230751, April 25, 2018
 - And so when a person files a sole Petition for Declaration of Presumptive Death it ought
to have been dismissed; “a petition whose sole objective is to declare a person
presumptively dead under the civil code is not a viable suit in this jurisdiction. In our
jurisdiction, a petition whose sole objective is to have a person declared presumptively
dead under the Civil Code is not regarded as a valid suit and no court has any authority
to take cognizance of the same”13.
- a rule creating a presumption of death is merely one of evidence that—while may be
invoked in any action or proceeding—cannot be the lone subject of an independent
action or proceeding14.

 Exception; petition for declaration of presumptive death for purposes of remarriage

under Art. 41 of the Family Code
- As an exception, it is only Article 41 of the Family Code that a judicial declaration of
presumptive death is mandatorily required by law to be obtained by the present spouse
only for the purpose of capacitating the present spouse to remarry15.
- He or she must file a summary proceeding for declaration of presumptive death of the
absentee, without prejudice to the latter’s reappearance16
- This is intended to protect the present spouse from criminal prosecution for bigamy
under Article 349 of the Revised Penal Code. For with a “judicial declaration” that the
missing spouse is presumptively dead, good faith of the present spouse in contracting a
subsequent marriage is established17.

 Requisites before a judicial declaration of presumptive death (for purposes of

remarriage) can be obtained:
- Under Article 41 of the Family Code, there are four 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 of the 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.

13
Estrellita Tadeo-Matias vs Republic, G.R. No. 230751, April 25, 2018
14
Ibid.
15
(Sta. Maria, pg. 298, 2015)
16
(Magdangal De Leon, pg. 544, 2015), (Sta. Maria, pg. 298, 2015)
17
Judge Sempio-Diy, Handbook on the Family Code, pg. 59, 1995
  The crucial element: “well-founded belief”
- Article 41 of the Family Code prescribes a well-founded belief that the absentee is
already dead before a petition for declaration of presumptive can be granted.
- 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 dead18
- But the requirement of “well-founded belief” depends on the circumstances of each
case.
- In one case, a Filipino seaman wanted to get a judicial declaration of presumptive death
from the court regarding to his missing English spouse. But the Supreme Court ruled
that the Filipino seaman failed to conduct a search for the missing wife with such
diligence to give to a well-founded belief that she was dead, considering that his
testimony is of doubtful credibility19:

“XXX 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.
XXX”
- In another case, the Supreme Court ruled that "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 passive one. As such, the mere
absence of the spouse for such periods prescribed under the law, lack of any news that
such absentee spouse is still alive, failure to communicate, or general presumption of
absence under the Civil Code would not suffice:20

“XXX In this case, Nilda testified that after Dante's disappearance, she tried to
locate him by making inquiries with his parents, relatives, and neighbors as to his
whereabouts, but unfortunately, they also did not know where to find him. Other
than making said inquiries, however, Nilda made no further efforts to find her
husband. She could have called or proceeded to the AFP headquarters to request
information about her husband, but failed to do so. She did not even seek the
help of the authorities or the AFP itself in finding him. Considering her own
pronouncement that Dante was sent by the AFP on a combat mission to Jolo,

18
Republic vs. Granada, GR No. 187512, 2012
19
Republic vs. Nolasco, 220 SCRA 20
20
Republic vs Tampus, 2016
 Sulu at the time of his disappearance, she could have inquired from the AFP on
the status of the said mission, or from the members of the AFP who were
assigned thereto. To the Court's mind, therefore, Nilda failed to actively look for
her missing husband, and her purported earnest efforts to find him by asking
Dante's parents, relatives, and friends did not satisfy the strict standard and
degree of diligence required to create a "well-founded belief of his death. XXX”

 Sworn Statement of Reappearance

- If the absent spouse reappears, such spouse can easily terminate the subsequent or
second marriage by:
a) Executing a sworn statement or affidavit of the fact and circumstance of such
reappearance;
b) Recording the said sworn statement or affidavit before the civil registry of the
residence of the parties to the subsequent marriage; and
c) Due notice to the spouses of the subsequent marriage21

[Note that the effects of reappearance of the absent spouse as regards to the first and
second marriages, their children, and properties, is much more in place if discussed under
the topic in Family Relations Law ]

 “Strict Standard Approach” consistent with the state’s policy to protect and
strengthen marriage
- Courts are fully aware of the possible collusion of spouses in nullifying their
marriage. 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.
- The rigid standard as emphasized by the Supreme Court would somehow refer
to the strict definition of the element of “well-founded belief”. 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 declared null
and void would resort to Art. 41 of the Family Code for relief because of the
summary nature of its proceedings22.
- Thus, courts ought to be put on notice of the strict standard approach in cases
under Article 41 of the Family Code.

21
Republic of the Philippines vs. Jose B. Sareñogon, G.R. No. 199194, February10, 2016
22
Republic vs. Cantor, GR No. 184621, 2013
--END-- 