Bare assertions

An absent spouse may be presumed dead if the present spouse has a well-founded belief that the absent spouse is already dead. But what constitutes a “well-founded belief” that the absent spouse is already dead? This is the case of Mely and Mario.

After only a year of being married to each other and having a daughter named Lina, Mario left their conjugal dwelling to apply for work abroad. Since then, he has not come back to his family and his whereabouts have been unknown for a continuous period of almost nine years. Thus Mely filed a Petition for Declaration of Presumptive Death of Mario before the Regional Trial Court (RTC) pursuant to Article 41 of the Family Code (FC).

In the Petition she alleged and testified in court that she exerted efforts to locate the whereabouts of her husband. She went to Manila a year after Mario left them and stayed there for seven months to search for Mario, but her search proved futile. So she went back to their province and proceeded to Mario’s relative, only to find out that they have no knowledge of his whereabouts either.

Then about two years later she applied for employment abroad and worked overseas while at the same time searching for Mario. But she still failed to find him until she returned to the Philippines four years later.

On the basis of Mely’s allegations and testimony, the RTC declared Mario as presumptively dead subject to the restrictions and conditions imposed in Article 41 of the FC. The RTC said that the under the circumstances surrounding the absence of Mario, he may be declared as presumptively dead. From the time he left the conjugal dwelling for purposes of applying for work abroad, his whereabouts became unknown and has been absent for more than nine years.

For purposes of remarriage a period of four years is required by law. The RTC added that the well-founded belief required under the FC has been preponderantly established by Mely, even if she did not present any documentary evidence. To require her to wait longer in order to remarry would be unfair, the RTC ruled.

Upon appeal by the Office of the Solicitor General (OSG), the Court of Appeals (CA) upheld the RTC decision. It held that Mely exerted