What is presumptive death?

Article 41 of the Family Code provides that before a judicial declaration of presumptive death may be granted, the present spouse must prove that he/she has a well-founded belief that the absentee is dead.[1] 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 mere passive one). Mere absence of the spouse (even beyond the period required by law), lack of any news that the absentee spouse is still alive, mere failure to communicate, or general presumption of absence under the Civil Code would not suffice.[2] 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 absent spouse is still alive or is already dead.[3]This strict standard approach ensures 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 in light of the State's policy to protect and strengthen the institution of marriage. Courts should never allow procedural shortcuts but instead should see to it that the stricter standard required by the Family Code is met.[4]

[1] Republic v. Cantor, G.R. No. 184621, December 10, 2013, <http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2013/december2013/18462l.pdf> (Last visited: April 28, 2015).

[2] Id.

[3] Id., citing Republic of the Philippines v. Court of Appeals (Tenth Div.), 513 Phil. 391, 397-398 (2005).

[4] Republic v. Cantor, G.R. No. 184621, December 10, 2013.

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