a. Ordinary Presumptive Death (Article 390)
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 his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of five
years shall be sufficient in order that his succession may be opened.
1. If absentee is 75 or below
7 years – for all purposes except succession
10 years – for succession
2. If absentee is over 75 years old
5 years for all purposes
b. Qualified Presumptive Death (Article 391)
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.
Person on board a vessel lost during a sea voyage, missing airplane ,
person in the armed forces who has taken part in war, a person who has
been in danger of death under other circumstances and his existence is not
known.
General Rule: 4 years for all purposes
Exception: 2 years for purposes of remarriage (Article 41, Family Code)
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.
When can you ask for a decree of presumptive death for purposes of
remarriage?
1. 4 years after disappearance
2. 2 years if the circumstances fall under Article 391
Under these rules on presumptive death, there is no need for a court
decree. The mere running of the period raises the presumption of death.
However, for purposes of remarriage, a summary proceeding is required
under Article 41 of the Family Code. Otherwise, the subsequent marriage
is void.
In the case of Eastern Shipping vs. Lucas, the Supreme Court did not apply
Article 391. The Supreme Court said that Article 391 is a rebuttable
presumption. Being a presumption, Article 391 is applied only if there is
no evidence. In this case, the Supreme Court had enough evidence to rule
that the seaman was really dead.
7 Responses
Good afternoon,
Yong asawa po ng hipag ko na isan Seaman ay missing na po for 11 years, paano po at saan po ba makakakuha nag Certificate of Presumptive Death.
Sana matulungan nyo po kami. maraming Salamat po.
Good evening attorney. Matagal na po kaming hiwalay ng husband ko since 2005.simula nun la na ko balita sa kanya.pumunta din po ako sa kanila sa tarlac at ipinagtanong sa mga magulang niyq kung nasaan ang anak nila pero di din daw nila alam dahil simula daw ng 2004 isang beses lng nakauwi.pero di na nasundan.ang alam mo pomg work niya ay sa navotas checker ng mga barking may shipment in and out. May kadalasan din pong marami siyang persng nasa envelope at ang sabi ay bayad daw ng kliyente at ihahatid sa opisina.di ko na po inusisa gawa ng ako ay may work din sa batangas at weekend lang kami nagkikita. Simula april 2005 di na po kami nagkita after kong manganak.ung number din naman na hawak ko ay hindi na sya makontak gawa ng matagal na nga kaming hiwalay.ipinagtanong ko din po siya sa mga kaibigan at kabarkada niya duon sa dati naming tinitirhan pero la ding makapagsabi kung nasaan siya.pewede po ba akong makapag file ng presumptive death.zero communication po tlga.salamat po
Good day p0 atty. Tanong ko lang po kasi matagal na po kami hiwalay ng asawa ko since 2011 pa po i presume kasi since then wala na po ako balita sa kanya at d na rin po sya kumokontak sakin until now..tanong ko lang po pwede po ba ako magfile ng presumption death para sa dati kong asawa in case po..Gusto na ein po kasi mapalitan mga legal papers ko po..at para rin po kung sakali at para din makapagpakasal po uli sa bago kong mahal.. Maraming salamat po.
It’s better to file a petition for declaration of Nullity Marriage or annulment in court.
We’d been separated since 2003, since then I haven’t heard anything from him and even from his family. We have 3 kids and received nothing from him. We tried not to cut our telephone lines hoping that in time he will get in touch with his children, but it did not happened, my children are 5, 3, and 1 years old when we had a big fight and he left, I am a battered wife. When he left us months after his sister in law called me and told me that my husband was with them and had a pregnant partner. That was the last time I heard about them. My children are now 21, 19, and 17. And we presumed that he’s not in existence already. We did not move to any location or migrate which I wanted to do then, for such reason that he might look for us or for his kids maybe but it didn’t happened. Will this be a ground for a declaration of presumptive death of my spouse? Can I file it in any court? need
The four essential requisites for the declaration of presumptive death were enumerated as follows by the Supreme Court in the case entitled, Republic of the Philippines vs. Cantor (G.R.No.184621, December 10, 2013; ponente, former Associate Justice Arturo Brion):
“1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.”
Applying this decision in your situation, the petition for declaration of presumptive death, which you intend to file, will not prosper because you do not have a well-founded belief that your husband was already dead and you did not exert the diligence required to locate the whereabouts of your husband .