Declaring wife presumptively dead

Dear PAO,

I married my wife, Grace on July 24, 2012 in Laoag City. In December of 2012, while working in
Dubai, my parents told me that Grace had left our conjugal home without any reason. I decided
to return to the Philippines to look for her. I tried to contact my wife’s parents but failed as the
latter already left Laoag City. I likewise inquired from my wife’s relatives and friends about her
whereabouts, but they also did not know where she was. I tried everything to locate her but my
efforts proved futile. Thus, on February 14, 2018, I filed before the Regional Trial Court of
Laoag City a petition to declare my wife as presumptively dead for the purpose of remarriage. I
exerted diligent efforts to find my wife by contacting her parents and inquiring from her relatives
and friends, who, unfortunately, were also not aware of my wife’s whereabouts. I intend to marry
my new girlfriend and to move on with my life. What are the things that I need to prove for the
Court to grant my petition to declare my wife as presumptively dead?
Thank you very much,

Luis

Dear Luis,

To answer your question, we shall refer to the Family Code of the Philippines that contains a
provision that specifically applies to your question. Article 41 of the said law provides:

“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. xxx For the purpose of contracting a 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.” (Ibid.)
It is clear from this cited provision that the spouse must have been absent for four consecutive
years and that the present spouse must likewise prove that he/she has a well-founded belief that
the absentee is already dead. In the case of Philippines vs. Sarenogon (G.R. No. 199194,
February 10, 2016, Ponente: Honorable Associate Justice Mariano C. del Castillo), the Supreme
Court stated:

“The 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. xxx The premise is that
Article 41 of the Family Code places upon the present spouse the burden of complying with the
stringent requirement of “well founded belief” which can only be discharged upon a showing of
proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s
whereabouts, but more importantly, whether the latter is still alive or is already dead.”

Applying the abovementioned decision in your case, you must adduce evidence to support your
claim that your wife has already been absent for four consecutive years and that you undertook a
thorough, determined and unflagging search for your wife for a reasonable period of time.