PERSONS & FAMILY RELATIONS

BLOCK _B_

NAME:

1. Read the case of Republic v. Cantor, G.R. No. 184621, December 10, 2013
2. Answer the following questions:

i. What are the essential requisites for the declaration of Presumptive Death under
Article 41 of the Family Code? (10%)

Answer:
As noted by the Court in the case of Republic v. Cantor, G.R. No. 184621,
December 10, 2013, the four (4) essential requisites for the Declaration of Presumptive Death
under Article 41 of the Family Code are as follows:

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.

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ii. What does “well-founded belief” mean? (10%)

Answer:
The Family Code provision as cited in the case of Republic v. Cantor, G.R. No.
184621, December 10, 2013 with the same observation on the case of Republic vs. Nolasco,
G.R No. 94053, March 17, 1993 prescribes a “well-founded belief” that the absentee is already
dead before a petition for declaration of presumptive death can be granted. The law did not
define what is meant by "well-founded belief." It depends upon the circumstances of each
particular case. Its determination, so to speak, remains on a case-to-case basis. To be able to
comply with this requirement, the present spouse must prove that his/her belief was the result
of diligent and reasonable efforts and inquiries 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 requires exertion of active effort (not a mere passive one).| (Republic v.
Cantor, G.R. No. 184621, [December 10, 2013], 723 PHIL 114-160)
 iii. What is the difference between Article 42 of the Family Code and Article 390-392
of the Civil Code on Presumption of death? (20%)

Answer:
For the purpose of remarriage under Article 41 and 42 of the Family Code, four
consecutive years is enough for person to be judicially declared presumptively dead. For other
purposes, there is no need of a judicial declaration but the required period for one to be
presumed dead is seven years except for the opening succession. In the latter case, an
absence of 10 years is mandated by the law except when the person is disappeared after the
age of seventy-five years in which case an absence of five years is enough. In these cases, the
person shall be presumed dead at the end of seven-year period.

However, if the disappearance occurred under dangerous circumstances a

specified in Article 391, the period is shortened to four years for all purposes including the
division of the estate among the heirs but excluding the situation in Article 41 of the Family
Code with respect to the present spouse wanting to remarry, in which case a judicial declaration
of presumptive death is needed and the period is shortened to two years.