This case has been cited 4 times or more.
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2016-02-10 |
DEL CASTILLO, J. |
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| A petition for certiorari pursuant to Rule 65 of the Rules of Court is the proper remedy to challenge a trial court's declaration of presumptive death under Article 41 of The Family Code of the Philippines[1] (Family Code).[2] | |||||
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2016-02-10 |
DEL CASTILLO, J. |
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| In an Amended Order dated Februrary 11, 2009, the RTC set the Petition for initial hearing on April 16, 2009. It likewise directed the publication of said Order in a newspaper of general circulation in the cities of Tangub, Ozamiz and Oroquieta, all in the province of Misamis Occidental. Nobody opposed the Petition.[9] Trial then followed.[10] | |||||
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2015-07-29 |
MENDOZA, J. |
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| 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.[14] In this case, Edna failed. The RTC and the CA overlooked Edna's patent non-compliance with the said requirement. 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.[15] 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.[16] | |||||
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2015-07-29 |
MENDOZA, J. |
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| Her claim of making diligent search and inquiries remained unfounded as it merely consisted of bare assertions without any corroborative evidence on record. She also failed to present any person from whom she inquired about the whereabouts of her husband. She did not even present her children from whom she learned the disappearance of her husband. In fact, she was the lone witness. Following the basic rule that mere allegation is not evidence and is not equivalent to proof,[21] the Court cannot give credence to her claims that she indeed exerted diligent efforts to locate her husband. | |||||