Disappearing Journalist

Someone asked me, "I have a friend who...

is married to and has a son with B, a journalist. On December 2015, B goes to Mexico supposedly to report on the country’s issues regarding corrupt officials and the rise in cases of journalist deaths. On January 2016, My friend, A, receives a call telling her that B has been abducted by unknown gunmen. Despite constant appeal for information by A, and pleas for help in searching for B, January 2016 would be the last time she would ever hear anything about her husband. Two years passed since B’s abduction—with A having no contact with B, and knowing nothing about her husband’s whereabouts or whether he is dead or alive.
 
Furthermore, ever since B’s disappearance, A and her son have been facing financial difficulties and she has no more source of income nor financial support. The year is 2018, and given the case at hand, A wants to declare the presumptive death of B so that she and her son may use his property to save them from their financial difficulties.

Can she declare presumptive death and collect inheritance? Further, A wants for her son to have a nuclear family. If in 2019, she still does not hear from B, and she falls in love with another man, C, and wishes to marry—would it be possible for A and C to get married?

/MAT

My answer is A’s claims are not sufficient for B’s absence to be declared as presumptive death.

Article 41 of the Family Code of the Philippines states that there are four essential requirements for the declaration of presumptive death. First, the absent spouse must be missing for four years or two consecutive years if the disappearance occurred when there was a danger of death. The danger of death as stated in Article 391 of the Civil Code are as follows; on board a vessel, participation in the armed forces, and life is in danger. Secondly, the present spouse wishes to remarry. Thirdly, the present spouse must have a well-founded belief that the absent spouse is indeed dead. Lastly, the present spouse must file for summary proceedings for the declaration of presumptive death of the absentee.

The issue of A’s case is similar to that of Republic v Sarenogon’s issue. The Supreme Court ruled that the “well-founded” belief requirement under Art. 41 of the Family Code was not complied with because the present spouse needs to prove that her belief was the result of “diligent and reasonable efforts and inquiries to locate the absent spouse.” The jurisprudence of the case requires actual exertion of active effort in order to establish a well-founded belief that the absent spouse is presumably dead.

In the situation of A, the third essential requirement as stated in Article 41 of the Family Code is missing B has been missing since 2016 and has not been heard from for two consecutive years. B’s job as a journalist going to Mexico puts his life directly in danger since there has been a rise in cases involving the death of journalists. A wishes to remarry, and she has filed for summary proceedings for the declaration of the presumptive death of B. However, A’s pleas and appeals for help do not constitute a well-founded belief on B’s presumptive death. A should have contacted local authorities, the embassy, as well as other journalists who may have embarked on the same Mexico trip as B in order for her claim to be considered a well-founded belief.


After diligent search on the part of the wife, then she can file for declaration of presumptive death to enable her to remarry, but not to collect inheritance. The petition for remarriage purposes is covered by the Family Code, but the petition for property separation is under the Civil Code.

In the Supreme Court decision of Tadeo-Matias v Republic, G.R. No. 230751, the court cited Article 390 and 391 of the Civil Code as a general rule regarding the presumption of death for any civil purpose. Article 390 states that it is only after an absence of seven years, whether or not the absent spouse is still living or not, shall be presumed to be dead for all reasons except for succession purposes. It also adds that the absent spouse will not be presumed dead for the reason of succession till after an absence of five years for succession purposes to be granted. Art. 391 further provides that a person who has been in danger of death under other circumstances and his existence has not been known for four years shall be presumed dead for all purposes, including the division of the estate among the heirs.

In this case, absence of the spouse was only for 2 years, so not enough for the court to grant succession rights. 





However, there are other remedies for A to do in order to support themselves. Under Article 212 of the Family Code, A can file in the court to appoint another person to be the guardian of the person as well as the property of the children. Article 96 of the Family Code states that in the event that a spouse is incapable to administer the properties, the other spouse can assume sole powers of administration. A can therefore be put in charge a guardian of the property of the absentee since it is in the best interest of the family experiencing financial troubles. A can also file with the courts a permission to dispose of shared properties that she and B had.

Edited from the answer provided by M.Remulla