Civil Code Of the Philippines

Civil Code of the Philippines :Presumptive Death

 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.

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