Civil Law Review 2020 118E Gue vs.

Republic
Judicial Declaration of Presumptive Death 1960 Montemayor

FACTS

Petitioner Angelina Gue was married to Willian Gue in 1944. In 1946, Willian left petitioner Angelina for
Shanghai, China and ever since then, he had not been heard of, neither had he written to her, nor in anyway
communicated to her. It was also alleged that they had not acquired any property during their marriage. In
1957, petitioner asked for the judicial declaration of the presumption of death of Willian, pursuant to Art. 390
of the New Civil Code1 and Art 191 of the Old Civil Code2. The trial court dismissed the petition on the basis that
no right had been established by Angelina upon which the judicial decree may be predicated.

RATIO

W/N a judicial declaration for a spouse’s presumptive death should be declared on the basis that the
spouse had been absent for at least seven years? (NOTE: This is prior to the effectivity of the Family
Code.)
NO. The Court cited the ruling in the case of Nicolai Szatraw, which was decided under the Code of Civil
Procedure (later repealed by the Rules of Court), which repealed the Old Civil Code. In that case, the Court
held that a judicial declaration of presumptive death of a spouse may be filed either in an action or in a
special proceeding, which is tried or heard by, and submitted for decision to, a special proceeding. In
Szatraw’s case, the proceeding was not for the settlement of Szatraw’s case since he did not possess
property brought to the marriage and as such, there is no right to be enforced nor is there a remedy prayed
for by the petitioner for the final determination of his right or status or for the ascertainment of a particular
fact. If there is any pretense at securing a declaration that the petitioner's husband is dead, such a
pretension cannot be granted because it is unauthorized. A judicial pronouncement to that effect, even if
final and executory, would still be a prima facie presumption only.

A judicial declaration that a person is presumptively dead, because he had been unheard from in seven
years, being a presumption juris tantum only, subject to contrary proof cannot reach the state of finality or
become final.

A petition for a declaration such as the one filed in this case may be made in collusion with the other spouse.
If that were the case, then a decree of divorce that cannot be obtained or granted under the provisions of the
Divorce Law.

1
ART. 390, New Civil Code.
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 this succession till after an absence of ten years. If he
disappeared after the age of seventy-five, an absence of five years shall be sufficient in order that his succession may be
opened.
2
ART. 191, Old Civil Code.
After thirty years have elapsed since disappearance of the absentee, or since he was last heard from, or ninety years from
his birth, the judgment upon the petition of any party lawfully interested, shall make an order declaring that such
absentee is presumed to be dead.