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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening this succession till after an absence of ten years. If he disappeared after the of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (Article 390 of the New Civil Code of the Philippines)
Further, the following shall be presumed dead for all purposes, including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (Article 391 of the New Civil Code of the Philippines)
Life is like a complex weaving, and death is something we all face. As an ancient text, beautifully puts it, “Death is as sure for that which is born, as birth is for that which is dead. Therefore, grieve not for what is inevitable.” This means that just as we are born, we are bound to face death.
But here’s a puzzling question: when do we consider someone as good as gone?
Thinking about this is where the idea of presuming death comes in. It is a legal concept that tries to figure out the moment when we can say someone is no longer alive, even if we do not have clear proof. This becomes important when someone goes missing, and there is no information or evidence to tell us what happened.
The New Civil Code of the Philippines says:
Art. 390. After an absence of seven years, it being unknown whether or not the absentee still lives, he shall be presumed dead for all purposes, except for those of succession.
The absentee shall not be presumed dead for the purpose of opening this succession till after an absence of ten years. If he disappeared after the of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened.
Article 390 states that if someone has been missing for seven years, and it is not clear whether they are still alive or not, the law assumes that they are dead for most legal matters. This means their absence is treated as if they have passed away when it comes to various issues, except for matters related to inheritance or succession. So, if someone has been gone for a long time, the law allows for the assumption that they are no longer alive in many situations, with the exception of matters involving inheritance.
Further, the person won’t be presumed dead for inheritance purposes until after being absent for ten years. If the individual disappeared after reaching the age of seventy-five, then an absence of five years is enough for their inheritance to be considered open. In simpler terms, the law allows assuming someone is no longer alive for most matters after seven years of being missing, but the inheritance matters require a longer period, depending on the circumstances.
Art. 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:
(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been missing for four years;
(3) A person who has been in danger of death under other circumstances and his existence has not been known for four years.
In simple terms, the law says that under the abovementioned circumstances, a person can be presumed dead for all legal purposes, including dividing their property among their heirs.
Question: If your spouse has been missing for a long time and you want to marry someone else whom you love, what legal steps do you need to take to get married to the new person?
Answer: When someone’s spouse has been missing for a significant period and the surviving spouse might want to remarry, they can file a petition for the declaration of presumptive death under Article 41 of the Family Code.
The Family Code of the Philippines says:
Art. 41. A marriage contracted by any person during 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 has 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 provisions 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 Republic of the Philippines vs. Josephine Ponce-Pilapi (G.R. No. 219185, November 25, 2020), jurisprudence sets out four requisites for a grant of a petition for declaration of presumptive death under Article 41 of the Family Code. Here are the four conditions they need to meet:
- Duration of Absence: The missing spouse must be gone for four consecutive years or two consecutive years if the disappearance happened in a life-threatening situation.
- Desire to Remarry: The spouse currently present wishes to get married again.
- Well-founded Belief: The present spouse must genuinely believe that the missing spouse is dead. This belief should be based on diligent efforts to locate the absent spouse, proving that they actively tried to find information about their whereabouts and vital status.
- Filing a Summary Proceeding: The present spouse needs to initiate a summary proceeding for the declaration of presumptive death of the missing spouse.
Establishing a “well-founded belief” is crucial but challenging. The term is flexible, depending on each case’s unique circumstances. According to legal precedent, the spouse seeking the declaration must demonstrate “diligent efforts.” This means actively and reasonably trying to locate the missing spouse. Mere absence, lack of communication, or a general presumption of absence won’t be enough. The present spouse must show that they made genuine and honest efforts to determine if the absent spouse is still alive or already deceased.
Read also: DEATH AND FUNERAL BENEFITS UNDER THE SOCIAL SECURITY ACT OF 2018
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