Requirements for Declaration of Presumption of Death

06 - 29 (1)

A common question we receive from readers is how to remarry without going through the process of annulment or divorce.  Of course the obvious answer to this question is there is no other way for a married person to get married again unless his or her spouse dies and makes him a widow/widower.  This answer gave birth to more questions about negligence, abandonment, and presumptive death as grounds for the other party to seek solace in another person’s company.  Questions such as: I haven’t seen or heard from my husband for five years! Can I remarry now? fill our mailboxes almost every day.

Oh love, how could you be so sweet and bitter at the same time?

To help shine some light into this madness, we are sharing the following list of legal requirements for declaration of judicial presumption of death, as lifted from the Public Attorney’s Office website.  It would be safe to assume that the absence of any of these requirements would demerit your case of tagging your spouse as “deceased” and prevent you from marrying again.  If you have further questions, you may get in touch with a lawyer who can explain this to you in detail.

Read on.

“Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior spouse has been absent for four consecutive years and the present spouse has a well-founded belief that the prior spouse was already dead.  Under Article 41 of the Family Code, there are four essential requisites for the declaration of presumptive death:

  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 of the 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 of proceeding for the declaration of presumptive death of the absentee.”

While the requirements may seem lenient, we must be reminded that the court will study the present spouse’s claim closely and will check if he or she exerted effort to locate the missing spouse.  It is up to the court to decide whether these efforts meet the required degree of stringent diligence prescribed by jurisprudence.  Proofs may be gathered to support the present spouse’s claim that he or she really did try to look for the missing spouse; these could be police reports, public announcements about the missing person, and personal testimonies of people involved in the search.

If you are in a similar situation, we hope the above article helped clear some areas you may still be struggling with.  Again, your best recourse is to seek the assistance of a lawyer.

If you have questions about annulment and separation in the Philippines, drop us a line and we will do our best to search for the answer for you.

Reference: www.pao.gov.ph

Chips And Nibblers (1)

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5 thoughts on “Requirements for Declaration of Presumption of Death

  1. Hello. I am Ime, I am married to a foreigner 9 years ago, we get married july 28, 2009, and after the days of our wedding, he goes home to his country we communicate each other inside of 4 months, but then after that he just lost, he dont call me anymore he dont send me messages, until now i dont hear anything about him, i dont know where he is.
    I just want to ask about presumptive death? How to file, and do i need a lawyer?

  2. Katilad po ng sa nanay ko 36 years na po hindi nagpapakita ang tatay ko at may bagong kinakasama na po ang nanay ko which is xa na don po tumayong tatay ko dhil sya na po bumuhay samin ng nanay ko. Hindi na po namin tlga makita ang totoong tatay ko nagpunta na po kmi sa lugar kung san dati nakatira ang tatay ko pero d ko po tlga makita pwede po ba mag file na ang nanay ko ng declaration of presumption of death saknya para naman po maikasal na po ung nanay ko sa kinakasama nya ngyon na bumuhay po sa amin. sana po matulungan nyo po kmi.

  3. I have been separated from my husband for 11 years already and I want to file for annulment on the grounds of abandonment since he left in 2006 and has not returned since then…. How can I fastrack my annulment?

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