Due diligence needed for court to declare missing spouse dead

Dear PAO,
My husband and I haven’t seen each other for years already. I have heard that he may have been living with his siblings in their province and decided not to contact me anymore. I have been working and raising our children by myself and I realized that the least I can do for myself is to find another partner to marry and help me raise a complete family. Because of this, I have found a partner who I wanted to marry and we plan to marry soon. However, since I know I am still legally married to my husband, I am wondering if I can file an action to claim that my husband is dead by now considering that he has been missing in our family’s life for so long already. I am hoping for your advice. Thank you!
Rotanielle

Dear Rotanielle,
It appears from your statement that you plan to claim the presumption of death of your absent husband in order to legally marry your new partner. Considering your intention, we shall refer to the provision of the law related to your situation.

For purposes of contracting a subsequent marriage when there is a belief that an absent spouse is already dead, the law provides that the spouse present must file a petition for the declaration of presumptive death when the absent spouse has been absent or has not been heard of for four years and the spouse present has a genuine belief that his/her spouse is already dead. In case the disappearance or absence of the spouse happened under dangerous circumstances, such as sinking of a ship, a period of two years is sufficient (Art. 41, Family Code of the Philippines in relation to Art. 391, Civil Code of the Philippines).

Therefore, in order to validly file such a petition, your husband must be absent without any news as to his whereabouts for the period stated above, and that you must truly believe him to be dead. It is important to note that it is not enough to claim that your husband has abandoned you and your children. There is a requirement to prove before the court that you exerted efforts to locate your husband to support your genuine and well-founded belief that he has already died. The Supreme Court ruled that failure to exercise due diligence in ascertaining the whereabouts of the absent spouse is failure to satisfy the requirements of the law which will result to the denial of a petition to claim the presumptive death of the absent spouse (Republic of the Philippines v. Gregorio Nolasco, 220 SCRA 20).

In your case, it is important that you make an actual effort to locate your missing husband especially because you stated that you have an information on his possible location. Please note that the law, on declaration of presumptive death, requires your well-founded belief on your spouse’s death. The presence of any lead as to the whereabouts of your husband undermines your well-founded belief as to his death.

You must be able to show that you have been diligent in locating your husband. Until then, you may not be able to claim the presumptive death of your husband for purposes of remarriage.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Illegitimate child can use father’s surname

Dear PAO,

I would like to seek advice regarding my husband’s mistress whom he had a child with. Can the mistress seek support from my husband for their child even if the child doesn’t use my husband’s surname? Related to this, can the mistress’s child still have my husband’s surname in his birth certificate even after the lapse of a few years from the time of his birth? Lastly, can I sue the mistress of my husband for her continuous harassment of my family and for continuously sleeping around with my husband? Thank you for your advice!
Ida

Dear Ida,
The illegitimate child of your husband may claim support from your husband if he expressly recognizes the child as his own. Should your husband acknowledge his mistress’s child, this carries the obligation on his part to give support to his child and even include him among his heirs for purposes of succession (Article 105, Family Code of the Philippines, Article 887, Civil Code of the Philippines). On the other hand, should your husband refuse to acknowledge the said child, then the mistress first needs to prove the filiation of her child to your husband in the manner set forth by law before claiming the child’s right to support from your husband.

With regard to the use of your husband’s surname by the child of his mistress, the law provides that an illegitimate child may use his father’s surname if the father expressly recognizes the child as his own in a written document. The length of time before a father acknowledges his filiation will not affect the child’s right to use his father’s name as long as he was acknowledged by his biological father. Thus, the child of your husband’s mistress may use your husband’s surname if your husband signed the birth certificate of the said child, or if he voluntarily acknowledges his filiation in a public document or a private handwritten document (Republic Act No. 9255).

As to your desire to file a legal action against the mistress of your husband for her alleged harassment to your family, the Civil Code of the Philippines recognizes the right to file a suit for damages caused by the disturbance of family life, to wit:

“Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

(1) xxx;

(2) Meddling with or disturbing the private life or family relations of another;

(3) xxx;

(4) xxx.”

Finally, you may also file a criminal case for concubinage against the mistress of your husband for her continuous sexual relation with your husband (Art. 334, Revised Penal Code of the Philippines). Please note, however, that should you decide to file such a criminal case, your husband is required to be included as an accused in the criminal complaint since while the mistress is considered to be a concubine, the crime of concubinage is primarily committed by a husband who has sexual relations with a woman not his wife.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.