Absence is that special legal status of one who is not in his domicile, his whereabouts
being unknown and it being uncertain whether he is dead or alive.
Example: When Lacson went to the US, Lacson was not absent since his whereabouts
were known.
Stages of Absence (According to Seriousness)
1. Temporary or Provisional (Articles 381 – 383)
Art. 381. When a person disappears from his domicile, his
whereabouts being unknown, and without leaving an agent to administer
his property, the judge, at the instance of an interested party, a relative,
or a friend, may appoint a person to represent him in all that may be
necessary.
This same rule shall be observed when under similar circumstances
the power conferred by the absentee has expired.
Art. 382. The appointment referred to in the preceding article
having been made, the judge shall take the necessary measures to
safeguard the rights and interests of the absentee and shall specify the
powers, obligations and remuneration of his representative, regulating
them, according to the circumstances, by the rules concerning guardians.
Art. 383. In the appointment of a representative, the spouse
present shall be preferred when there is no legal separation.
If the absentee left no spouse, or if the spouse present is a minor, any
competent person may be appointed by the court.
Requisites for Provisional Absence
1. Absence for an appreciable period which depends upon the circumstances
2. Immediate necessity for his representation in some specific urgent matter
3. Absentee left no agent or the agency has expired.
The declaration of provisional absence (must go to court) is limited to a
specific act.
2. Normal or Declared (Articles 384 – 389)
Art. 384. Two years having elapsed without any news about the
absentee or since the receipt of the last news, and five years in case the
absentee has left a person in charge of the administration of his property,
his absence may be declared.
Art. 385. The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic copy
of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee some
right subordinated to the condition of his death.
Art. 386. The judicial declaration of absence shall not take effect
until six months after its publication in a newspaper of general
circulation.
Art. 387. An administrator of the absentee’s property shall be
appointed in accordance with article 383.
Art. 388. The wife who is appointed as an administratrix of the
husband’s property cannot alienate or encumber the husband’s property,
or that of the conjugal partnership, without judicial authority.
Art. 389. The administration shall cease in any of the following
cases:
(1) When the absentee appears personally or by means of an agent;
(2) When the death of the absentee is proved and his testate or
intestate heirs appear;
(3) When a third person appears, showing by a proper document that
he has acquired the absentee’s property by purchase or other
title.
In these cases the administrator shall cease in the performance of
his office, and the property shall be at the disposal of those who may
have a right thereto.
Periods
1. 2 years – if he did not leave an agent
2. 5 years – if he left an agent
Computation of Period
a. If no news, the period must be computed from the date of disappearance.
b. If there is news, the period must be computed from the last time the
absentee was referred to in the news (not receipt of last news)
For example, X in 1996 goes on a world tour. On March 1, X poses for a
picture and sends a postcard. This is received by Y on September 1. X is
not heard from again. According to Professor Balane, the disappearance
should be counted from March 1 and not September 1. Counting from
September 1 just doesn’t make sense!
The purpose of the declaration of absence is for the court to have someone to
administer the property of the absentee – Article 384. If the absentee left no
property to administer, then one cannot resort to a declaration of absence.
For purposes of re-marriage, a declaration of absence is not proper. In this
case, what is required is a summary proceeding for presumptive death.
