Republic vs. Tampus

A judicial declaration of presumptive death under Article 41 of the Family Code requires the present spouse to prove a "well-founded belief" of the absentee's death, which necessitates the exertion of active, honest-to-goodness efforts to locate the absent spouse — not merely passive inquiries with relatives and neighbors. The mere absence of the spouse for the prescribed period, lack of communication, or general presumption of absence under the Civil Code does not suffice.

Nilda B. Tampus was married to Dante L. Del Mundo, a member of the Armed Forces of the Philippines (AFP), on November 29, 1975 in Cordova, Cebu. Three days after the marriage, Dante left for Jolo, Sulu, where he was assigned on a combat mission. The couple had no children. The case involves the application of Article 41 of the Family Code, which allows a spouse to remarry if the prior spouse has been absent for four consecutive years (or two years in cases of danger of death) and the present spouse has a well-founded belief that the absentee is dead.

Nilda B. Tampus married Dante L. Del Mundo, a member of the Armed Forces of the Philippines, on November 29, 1975 in Cordova, Cebu, in a ceremony solemnized by Municipal Judge Julian B. Pogoy. Three days later, on December 2, 1975, Dante left for Jolo, Sulu, where he was assigned on a combat mission. The couple had no children. Since then, Nilda heard no news from Dante; she tried everything to locate him, but her efforts proved futile.

On April 14, 2009, Nilda filed before the RTC a petition to declare Dante presumptively dead for the purpose of remarriage, alleging that after the lapse of thirty-three years without any kind of communication from him, she firmly believes that he is already dead. Due to the absence of any oppositor, Nilda was allowed to present her evidence ex parte. She testified on the allegations in her petition, affirming that she exerted efforts to find Dante by inquiring from his parents, relatives, and neighbors, who, unfortunately, were also not aware of his whereabouts. She averred that she intends to remarry and move on with her life.

The RTC granted Nilda's petition and declared Dante as presumptively dead for all legal purposes, without prejudice to the effect of his reappearance. It found that Dante left the conjugal dwelling sometime in 1975 and from then on, Nilda never heard from him again despite diligent efforts to locate him. The RTC further found that the absence of thirty-three years was sufficient to give rise to the presumption of death. The CA affirmed, opining that if Dante were still alive after many years, it would have been easy for him to communicate with Nilda, considering that he was only 25 years old when he left and would have been physically able to get in touch with his wife.

Before the Supreme Court, the Court observed that other than making inquiries with Dante's parents, relatives, and neighbors, Nilda made no further efforts to find her husband. She could have called or proceeded to the AFP headquarters to request information about her husband, but failed to do so. She did not even seek the help of the authorities or the AFP itself in finding him. Considering her own pronouncement that Dante was sent by the AFP on a combat mission to Jolo, Sulu at the time of his disappearance, she could have inquired from the AFP on the status of the said mission, or from the members of the AFP who were assigned thereto. Nilda did not present Dante's family, relatives, or neighbors as witnesses who could have corroborated her asseverations, and these resource persons were not even named. Other than Nilda's bare testimony, no other corroborative evidence had been offered to support her allegation that she exerted efforts to find him but was unsuccessful.

• Lack of Well-Founded Belief: The Republic, through the OSG, argued that the CA erred in upholding the RTC Decision declaring Dante as presumptively dead, as Nilda failed to prove that she had a well-founded belief of his death through diligent and reasonable efforts to locate him.

• Sufficiency of Efforts: Nilda argued that she exerted efforts to find her husband by inquiring from his parents, relatives, and neighbors, who likewise had no knowledge of his whereabouts, and that the lapse of thirty-three years, coupled with the fact that Dante had been sent on a combat mission to Jolo, Sulu, gave rise to her well-founded belief that her husband is already dead.

• Well-Founded Belief: Whether the Court of Appeals erred in upholding the RTC Decision declaring Dante L. Del Mundo as presumptively dead under Article 41 of the Family Code.

• Well-Founded Belief: No. The petition was granted, and the declaration of presumptive death was reversed and set aside. Nilda failed to discharge her burden of proving a "well-founded belief" of Dante's death, as her efforts were merely passive inquiries with relatives and neighbors, not the active, diligent search required by Article 41 of the Family Code and prevailing jurisprudence.

• Well-Founded Belief: The Court applied the four essential requisites for a declaration of presumptive death under Article 41 of the Family Code: (1) 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 Article 391 of the Civil Code; (2) the present spouse wishes to remarry; (3) the present spouse has a well-founded belief that the absentee is dead; and (4) the present spouse files a summary proceeding for the declaration of presumptive death of the absentee. The burden of proof rests on the present spouse to show that all the foregoing requisites exist, since it is the present spouse who substantially asserts the affirmative of the issue.

The Court emphasized that 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. The mere absence of the spouse for the prescribed periods, lack of any news that such absentee spouse is still alive, failure to communicate, or general presumption of absence under the Civil Code would not suffice. Article 41 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 these standards, the Court found that Nilda's efforts fell short. She only made inquiries with Dante's parents, relatives, and neighbors, but made no further efforts to find her husband. She could have called or proceeded to the AFP headquarters to request information about her husband, but failed to do so. She did not even seek the help of the authorities or the AFP itself in finding him. Considering her own pronouncement that Dante was sent by the AFP on a combat mission to Jolo, Sulu at the time of his disappearance, she could have inquired from the AFP on the status of the said mission, or from the members of the AFP who were assigned thereto. The Court concluded that Nilda failed to actively look for her missing husband, and her purported earnest efforts to find him by asking Dante's parents, relatives, and friends did not satisfy the strict standard and degree of diligence required to create a "well-founded belief" of his death.

Furthermore, Nilda did not present Dante's family, relatives, or neighbors as witnesses who could have corroborated her asseverations that she earnestly looked for Dante. These resource persons were not even named. Citing Republic vs. Nolasco, the Court noted that the present spouse's bare assertion that he inquired from his friends about his absent spouse's whereabouts was found insufficient as the names of said friends were not identified in the testimony nor presented as witnesses. Finally, other than Nilda's bare testimony, no other corroborative evidence had been offered to support her allegation that she exerted efforts to find him but was unsuccessful. What appears from the facts was that Nilda simply allowed the passage of time without actively and diligently searching for her husband, which the Court cannot accept as constituting a "well-founded belief" that her husband is dead. Whether or not the spouse present acted on a well-founded belief of death of the absent spouse depends upon the inquiries to be drawn from a great many circumstances occurring before and after the disappearance of the absent spouse and the nature and extent of the inquiries made by the present spouse.

• Well-Founded Belief Doctrine (Article 41, Family Code) — The "well-founded belief" of 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. The mere absence of the spouse for the prescribed periods, lack of any news that such absentee spouse is still alive, failure to communicate, or general presumption of absence under the Civil Code would not suffice. In this case, the Court applied this doctrine to find that Nilda's mere inquiries with relatives and neighbors, without seeking help from authorities or the AFP, failed to satisfy the stringent standard.

• Burden of Proof in Presumptive Death Proceedings — The burden of proof rests on the present spouse to show that all the requisites under Article 41 of the Family Code exist. Since it is the present spouse who, for purposes of declaration of presumptive death, substantially asserts the affirmative of the issue, it stands to reason that the burden of proof lies with him/her. He who alleges a fact has the burden of proving it, and mere allegation is not evidence. The Court applied this doctrine to hold that Nilda's bare testimony, without corroborative evidence or witnesses, was insufficient.

• "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. As such, the mere absence of the spouse for such periods prescribed under the law, lack of any news that such absentee spouse is still alive, failure to communicate, or general presumption of absence under the Civil Code would not suffice." — This passage articulates the controlling standard for the "well-founded belief" requirement under Article 41 of the Family Code and is the ratio decidendi of the case.

• "To the Court's mind, therefore, Nilda failed to actively look for her missing husband, and her purported earnest efforts to find him by asking Dante's parents, relatives, and friends did not satisfy the strict standard and degree of diligence required to create a 'well-founded belief of his death." — This passage applies the doctrine to the facts, explaining why Nilda's efforts were insufficient.

• "What appears from the facts as established in this case was that Nilda simply allowed the passage of time without actively and diligently searching for her husband, which the Court cannot accept as constituting a 'well-founded belief that her husband is dead." — This passage summarizes the Court's conclusion that mere passage of time without active search efforts cannot establish a well-founded belief of death.

• Republic vs. Cantor, G.R. No. 184621, December 10, 2013, 712 SCRA 1 — Cited as controlling precedent for the four essential requisites for the declaration of presumptive death under Article 41 of the Family Code and for the rule on burden of proof resting on the present spouse.

• Republic of the Philippines vs. Court of Appeals, 513 Phil. 391 (2005) — Cited for the proposition that the "well-founded belief" requirement necessitates proper and honest-to-goodness inquiries and efforts to ascertain the absent spouse's whereabouts and whether the latter is still alive, and that whether the present spouse acted on a well-founded belief depends upon the inquiries drawn from circumstances before and after the disappearance.

• Republic vs. Nolasco, G.R. No. 94053, March 17, 1993, 220 SCRA 20 — Followed as precedent holding that the present spouse's bare assertion that he inquired from his friends about his absent spouse's whereabouts was insufficient where the names of said friends were not identified in the testimony nor presented as witnesses.

• Article 41, Family Code of the Philippines — The central provision applied in this case, which provides that 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 Article 391 of the Civil Code, an absence of only two years shall be sufficient. The Court applied this provision to require the present spouse to file a summary proceeding for the declaration of presumptive death and to prove all its requisites.

• Article 391, Civil Code — Referred to in Article 41 of the Family Code as the provision enumerating the circumstances where there is danger of death, which would reduce the required period of absence from four years to two years. The Court noted this provision in enumerating the requisites for presumptive death but did not apply it to the facts since Nilda relied on the thirty-three-year absence.

Sereno, C.J. (Chairperson), Leonardo-De Castro, Bersamin, and Caguioa, JJ., concurred.