[ G.R. No. 212726, June 10, 2020 ]
REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. LEILANIE DELA CRUZ FENOL, RESPONDENT.
SEPARATE CONCURRING OPINION
PERALTA, C.J.:
I concur with the ponencia and vote to deny the petition of respondent Leilanie Dela Cruz Fenol to have her husband, Reneto Alilongan Suminguit, declared presumptively dead.
To recall, Leilanie and Reneto were married on July 8, 2000. In January 2001, Reneto left their conjugal home in Cotabato and went to Manila to apply for work abroad. Since then, he has neither come back nor given word to Leilanie as to his whereabouts. Consequently, Leilanie filed a Petition for Declaration of Presumptive Death of Reneto on November 16, 2009. In the petition, she alleged that she went to Manila in 2002 and stayed there for seven (7) months to look for Reneto. Then, she went to Davao del Norte to inquire about his whereabouts from his relatives. In 2004, she worked overseas and returned to the Philippines in 2008. But despite her efforts in going to said places, she still failed to locate Reneto who had been missing for a period of more than eight (8) years already.
The Court had consistently resolved this matter, time and again, in several of its pronouncements, imposing the same stringent requirements each time.
As early as 1993, the Court, in Republic v. Nolasco,1 denied Nolasco's petition to declare his wife as presumptively dead finding that he did not possess a "well-founded belief" that she was already dead. There, Nolasco married his wife, a British woman, in Antique, Philippines in 1982. But in 1983, she left their home while he was on board a vessel working as a seafarer. Consequently, he filed the petition. The Court, however, rejected the same and ruled as insufficient Nolasco's efforts consisting of: (1) searching for his wife abroad; (2) writing letters to her; and (3) inquiring from friends regarding her whereabouts. Specifically, We found that Nolasco could have easily sought the help of local authorities or of the British Embassy. But instead, he secured another seaman's contract, went to London, a "vast city of many millions of inhabitants," to look for her there. Also, while Nolasco claims to have inquired from their friends as to her whereabouts, he neither presented those friends to testify let alone identified them in his own testimony. In the end, We ruled that his evidence merely tended to show that his spouse had chosen not to communicate with him but not that she was dead.
In 2012, the Court had occasion to reiterate, in Republic v. Granada,2 the stringent requirements laid down in Nolasco.1âшphi1 In said case, respondent Granada married her husband in 1991 who left in 1994 to seek employment in Taiwan. After nine (9) years of waiting, Granada sought to declare her husband presumptively dead claiming that from the time he left in 1991, she had not received any communication from him. In support of her petition, she presented her brother who testified that he asked the relatives of her husband regarding the latter's whereabouts, but to no avail. The Court, however, found said testimony insufficient to show that Granada duly conducted a diligent search of her husband. Fatal to her case were her failure to: (1) present these relatives to corroborate her brother's testimony; (2) seek information from the Taiwanese Consular Office or assistance from other government agencies in Taiwan or the Philippines; and (3) utilize such other means to search for her husband such as mass media.
Not long after, the Court denied another petition for declaration of presumptive death in Republic v. Cantor.3 This time, it was a petition filed by respondent Cantor concerning her husband who left their home in January 1998 due to a quarrel they had about her "inability to reach sexual climax," just less than a year from their marriage in September 1997. But the Court found that the following efforts of Cantor fell short of the stringent standard required by jurisprudence: (1) making inquiries about her husband's whereabouts from her in-laws, neighbors and friends; and (2) whenever she went to a hospital, she saw to it that she looked through the patients' directory, hoping to find Jerry. As with Granada and Nolasco, We found that Cantor failed to present as witnesses her husband's relatives and friends, to report the absence to the police, as well as to seek the aid of authorities.
Recently, in Republic v. Tampus,4 and Republic v. Sareñogon, Jr.,5 the Court remained consistent with this prevailing standard of well-founded belief. In the former, respondent Tampus filed her petition claiming that she firmly believes that her husband, who left her for Jolo, Sulu as a member of the Armed Forces of the Philippines (SFP), is already dead in view of the fact that she has not heard from him for a period of thirty-three (33) years since he left. In the latter, respondent Sareñogon sought to declare his wife presumptively dead as he had not heard from her for over ten (10) years since the time he left to work as a seaman and the time she left for Hong Kong as a domestic helper. In both cases, We resolved to deny the petitions of the present spouses to declare their absent spouse as presumptively dead for the following reasons: (1) failure to call to the witness stand the specific relatives and friends of the missing spouse; and (2) failure to seek assistance from the pertinent government agencies and the media.
Thus, on the basis of current and unwavering case law on the matter, I concur with the ponencia in finding that Leilanie's bare assertion that she exerted efforts to search for her absent husband in going to Manila and Davao Del Norte to ask the relatives of said spouse regarding his whereabouts cannot support her claim of well-founded belief that her husband is already dead. As in the cases cited above, she similarly failed to present corroborative proof consisting of testimonies of her in-laws as well as reports to and inquiries with the police and other pertinent government authorities.
It must be remembered that the Petition for Declaration of Presumptive Death filed by Leilanie herein is one for purposes of contracting a subsequent marriage under Article 41 of the Family Code which states:
Art. 41. A marriage contracted by any person during the 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 had 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 provision 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.
In Nolasco, the Court pointed out that Article 41 expressly imposed a standard stricter than that of the old Article 836 of the Civil Code. In the latter, it is merely required that there be no news that such absentee is still alive; or the absentee is generally considered to be dead and believed to be so by the spouse present, or is presumed dead under Articles 390 and 391 of the Civil Code. But in the former, the present spouse must have a "well-founded belief" that the absent spouse is already dead before a petition for declaration of presumptive death can be granted. In particular, he or she must sufficiently establish the following: (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."
The records of the instant case, however, merely tend to show an absence of news that Reneto is alive under the old Civil Code but not so much the required well-founded belief that he is already dead under the present Article 41 of the Family Code. To repeat, after Reneto left their home in 2001, Leilanie's efforts merely consisted of going to Manila for work, Davao del Norte to talk to Reneto's relatives, and abroad, again, for work.
If one would really think about it, however, these jurisprudential requirements on "well-founded belief" may be designated as "stringent," but the same is not that difficult to achieve. On the contrary, I see nothing impractical nor costly about going to the police authorities to inquire about your spouse or asking said spouse's relatives to testify. After all, it is a search of a missing person none other than your husband or wife who may already be dead. It bears emphasis that Leilanie, here, had travelled far and wide from Cotabato to Manila to Davao del Norte and even overseas allegedly in search of her absent husband Reneto. It is, therefore, rather odd that she could not make a quick walk to the police station especially in view of the great distance that she already conquered.
In the end, it must be remembered that the purpose of the "stricter standard approach" 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 on marriage.7 It is a basic policy of the State to protect the institution of marriage as a family's foundation. Indeed, the Court is fully aware of the possible collusion between spouses to utilize the summary nature of said Article 41 in cases when they find it impossible to dissolve the marital bonds through existing legal means. For the purposes of remarriage, therefore, We must see to it that spouses should not be allowed, by the simple expedient of agreeing that one of them leave the conjugal abode and never to return again, to effectively evade the laws on marriage.8
Footnotes
1 292-A Phil. 102 (1993).
2 G.R. No. 187512, June 13, 2012, 687 Phil. 403, 412 (2012).
3 723 Phil. 114, 132 (2013).
4 783 Phil. 485 (2016).
5 780 Phil. 738, 763 (2016).
6 Pertinent portions of Article 83 of the Civil Code read:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any other person other than such first spouse shall be illegal and void from its performance, unless:
x x x x
(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of the contracting such subsequent marriage, or if the absentee is presumed dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court."
7 Republic v. Cantor, supra note 3, at 133-134.
8 Republic v. Nolasco, supra note 1.
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