By: Atty. Gregorio B. Austral, CPA
How to find a missing spouse
Jose first met his wife Netchie in Clarin, Misamis Occidental in 1991. On August 10, 1996, they got married in civil rites at the Manila City Hall. However, they lived together as husband and wife for a month only because he left to work as a seaman while Netchie went to Hongkong as a domestic helper. For three months, he did not receive any communication from Netchie. He likewise had no idea about her whereabouts. While still abroad, he tried to contact Netchie’s parents, but failed, as the latter had allegedly left Clarin, Misamis Occidental. He returned home after his contract expired. He then inquired from Netchie’s relatives and friends about her whereabouts, but they also did not know where she was. Because of these, he had to presume that his wife Netchie was already dead. He filed the Petition before the RTC so he could contract another marriage pursuant to Article 41 of the Family Code.
Both the RTC and the CA ruled in favor of Jose. However, when the Solicitor General appealed the case to the Supreme Court, the high court ruled that there was no basis at all for the RTC’s finding that Jose’s Petition complied with the requisites of Article 41 of the Family Code, in reference to the “well-founded belief” standard. To be able to comply with this requirement, the present spouse must prove that his/her belief was the result of diligent and reasonable efforts and inquiries 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 requires exertion of active effort (not a mere passive one).
Reiterating the strict standard rule for petitions under Article 41 of the Family Code, the court emphasized that the degree of diligence and reasonable search required by law is not met (1) when there is failure to present the persons from whom the present spouse allegedly made inquiries especially the absent spouse’s relatives, neighbors, and friends, (2) when there is failure to report the missing spouse’s purported disappearance or death to the police or mass media, and (3) when the present spouse’s evidence might or would only show that the absent spouse chose not to communicate, but not necessarily that the latter was indeed dead.
Explaining the stringent or rigorous evidentiary requirement, the Supreme Court said that the Court, fully aware of the possible collusion of spouses in nullifying their marriage, has consistently applied the “strict standard” approach. This 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. Courts should never allow procedural shortcuts and should ensure that the stricter standard required by the Family Code is met. x x x The application of this stricter standard becomes even more imperative if we consider the State’s policy to protect and strengthen the institution of marriage. Since marriage serves as the family’s foundation and since it is the state’s policy to protect and strengthen the family as a basic social institution, marriage should not be permitted to be dissolved at the whim of the parties. x x x
Worthy of our attention is the well-reasoned dissent of Justice Leonen. He wrote: This court must realize that insisting upon an ideal will never yield satisfactory results. A stringent evaluation of a party’s efforts made out of context will always reveal means through which a spouse could have ‘done more’ or walked the proverbial extra mile to ascertain his or her spouse’s whereabouts. A reason could always be conceived for concluding that a spouse did not try hard enough. Focusing on the supposed inadequacies of Jose’s efforts makes it seem as though the burden of presence is his alone to bear, when it is Netchie who is missing. It is she who has proven herself no longer capable of performing her marital obligations. As she has been absent for the statutorily prescribed period despite her obligations as Jose’s spouse, Netchie must be considered presumptively dead. (Republic vs. Sareñogon, G.R. No. 199194, Feb. 10, 2016)