RULE 107: ABSENTEES

LAW 314 | Special Proceedings

Jaelein Nicey A. Monteclaro
 PETITION FOR
DECLARATION OF
APPOINMENT OF
ABSENCE
REPRESENTATIVE
 Period of absence
that must first
lapse before
proceedings under
Rule 107 may be
commenced
  Consequence
(1) Petition for appointment of
representative under Rule 107,
except if the absentee left an
Two years administrator to manage his
property
(2) Present spouse may remarry if
the circumstances mentioned in (1)
next slide are present.
 Consequence
(1) Presumed dead for all purposes, including
succession:
a) Person on board a vessel lost during a sea
voyage, or an aeroplane which is missing, who
has not been heard of for 4 years since the loss
Four years of the vessel or aeroplane;
b) Person in the armed forces who has taken
part in war, and has been missing for 4 years;
c) Person who has been in danger of death
under other circumstances and his existence
has not been known for 4 years.
(2) Present spouse may remarry
 Consequence
 (1) Petition for declaration of absence
under Rule 107
Five years  (2) Presumed dead for all purposes,
including the opening of succession, if
the absentee disappeared after the age
of 75 years old.
 Consequence
Presumed dead for all purposes,
Seven years except for the purpose of
succession
 Consequence
Ten years Presumed dead for purposes of
opening absentee’s succession
 Provisional Representative
Sec. 1 A petition for the appointment of an

Appointment absentee’s representative may be initiated

by the following:

of 1. Any interested party;

Absentee’s relative; or
Representative
2.

3. Absentee’s friend.
 When is a When the absentee
left properties that
petition under need to be
administered by a

rule 107 proper? representative.

 After the lapse of two (2) years from
his disappearance and without any news
about the absentee or since the receipt of
the last news, or of five (5) years in case
absentee has left a person in charge of the
Sec. 2 administration of his property, the
declaration of his absence and
Declaration of appointment of a trustee or administrator
may be applied for by any of the
following:
absence; a) The spouse present;
who may b) The heirs instituted in a will, who may
present an authentic copy of the same;
petition c) The relatives who would succeed by
intestacy; and
d) Those who have over the property of
the absentee some right subordinated
to the condition of his death.
 Petitioner filed a petition to declare her
husband presumptively dead due to his
absence for around 20 years.
Lukban vs. RP Supreme Court
“A judicial pronouncement to that effect, even
if final and executory, would still be a prima
No petition for facie presumption only. It is still disputable. It
is for that reason that it cannot be the subject
declaration of of a judicial pronouncement or declaration, if
it is the only question or matter involved in a
presumptive case, or upon which a competent court has to
pass. It is, therefore, clear that a judicial
death declaration that a person is presumptively
dead, because he had been unheard from in 7
years, being a presumption juris tantum only,
subject to contrary proof, cannot reach the
stage of finality or become final.”
General Rule
There is no such thing as an independent action for
declaration of presumption of death. The presumption may
arise and be invoked in an action or special proceeding.

Exception
For purposes of REMARRIAGE
- Under Article 41 of the Family Code, for the purpose of the
present spouse contracting a second marriage, he or she must
file a summary proceeding for declaration of presumptive
death of the absentee, without prejudice to the latter’s
reappearance.
- Intended to protect the present spouse from criminal
prosecution for bigamy.
  F: Ricardo Santos was able to obtain, on July
27, 2007, a petition for the declaration of
presumptive death of his wife, Celerina, after
Santos vs. Santos allegedly not hearing from her for 12 years
after she left to work in Hong Kong. Ricardo
thereafter remarried on September 17, 2008.
However, Celerina reappeared and filed for a
Remedy against petition for annulment of judgment on
November 17, 2008 since she could no longer
fraudulently avail of the remedies of new trial, appeal, and
petition for relief from judgment. Celerina
obtained judgment claims that it was Ricardo who left their
conjugal dwelling on May 2008 to cohabit with
declaring another woman. The CA dismissed the petition
presumptive death stating that the proper remedy was for her to
file a sworn statement before the civil registry,
declaring her reappearance in accordance with
Article 42 of the Family Code.
 YES.
Supreme Court
“Celerina does not admit to have been absent. She
Santos vs. Santos also seeks not merely the termination of the
subsequent marriage but also the nullification of its
effects. She contends that reappearance is not a
sufficient remedy because it will only terminate the
subsequent marriage but not nullify the effects of
Issue: Did the CA the declaration of her presumptive death and the
subsequent marriage.

err in dismissing
Celerina is correct. Since an undisturbed subsequent
Celerina’s marriage under Article 42 of the Family Code is valid
until terminated, the "children of such marriage shall
petition for being be considered legitimate, and the property relations
of the spouse[s] in such marriage will be the same as
in valid marriages." If it is terminated by mere
a wrong remedy? reappearance, the children of the subsequent
marriage conceived before the termination shall still
be considered legitimate. Moreover, a judgment
declaring presumptive death is a defense against
prosecution for bigamy.”
 “It is true that in most cases, an action to declare
the nullity of the subsequent marriage may nullify
the effects of the subsequent marriage, specifically,
in relation to the status of children and the prospect
Santos vs. Santos of prosecuting a respondent for bigamy.

However, "a Petition for Declaration of Absolute

Issue: Did the CA Nullity of Void Marriages may be filed solely by the
husband or wife." This means that even if Celerina is

err in dismissing a real party in interest who stands to be benefited or

injured by the outcome of an action to nullify the
second marriage, this remedy is not available to her.
Celerina’s
petition for being Therefore, for the purpose of not only terminating
the subsequent marriage but also of nullifying the
a wrong remedy? effects of the declaration of presumptive death and
the subsequent marriage, mere filing of an affidavit
of reappearance would not suffice. Celerina's choice
to file an action for annulment of judgment will,
therefore, lie.”
 a) The jurisdictional facts;
b) The names, ages, and residences of the
heirs instituted in a will, copy of which
shall be presented, and of the relatives
Sec. 3 who would succeed by the law of
intestacy;
Contents of c) The names and residences of creditors
and others who may have any adverse
Petition interest over the property of the
absentee;
d) The probable value, location and
character of the property of the
absentee.
 Sec. 4-6
PROCEDURE
Service of the
NOTICE at least
TEN days before
the day of the
hearing upon
known heirs, OPPOSITION HEARING
Proof of Hearing:
Court fixes creditors & other State the grounds
A] Petitioner must show
interested parties in writing and
Filing of date and serve a copy to
compliance with Sec. 4,
B] Upon satisfactory proof of
petition place of the petitioner &
allegations in the petition,
other interested
hearing parties on or
court shall issue an order
PUBLICATION once granting it & appointing a
before hearing
a week for 3 REP/TTEE/ADM
consecutive weeks
in a newspaper of
general
circulation
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, trustee or
administrator, regulating them by the rules concerning guardians.

In case of declaration of absence, the same shall not take effect

until six (6) months after its publication in a newspaper of general
circulation designated by the court and in the Official Gazette.
 1. Spouse present is preferred
SEC 7. when there is no legal
Who may be separation;
Any competent person may
appointed 2.
be appointed by the court.
 The trusteeship or administration of the
property of the absentee shall cease upon
order of the court in any of the following
cases:
a) When the absentee appears personally or
by means of an agent;
SEC 8. b) When the death of the absentee is proved

Termination of c)
and his testate or intestate heirs appear;
When a third person appears, showing by a
Administration proper document that he has acquired the
absentee’s property by purchase or other
title.
In these cases, the trustee or administrator
shall cease in the performance of his office,
and the property shall be placed at the disposal
of whose may have a right thereto.
Pertinent Civil Code provisions on
Absence
TITLE XIV : ABSENCE
Chapter 1 – Provisional Measures in Case of Absence
 Article 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.
 Article 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.
 Article 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.
Chapter 2 – Declaration of Absence

 Article 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.

 Article 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.

 Article 386. The judicial declaration of absence shall not take effect until six
months after its publication in a newspaper of general circulation.
Chapter 3 – Administration of the Property of the Absence

 Article 387. An administrator of the absentee's property shall be appointed in

accordance with article 383.

 Article 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.

 Article 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.
Summary Judicial Proceedings under the
Family Code
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS
IN THE FAMILY LAW, sets the tenor for cases covered by these rules, to wit:

“Art. 238. Until modified by the Supreme Court, the procedural rules
provided for in this Title shall apply as regards separation in fact between
husband and wife, abandonment by one of the other, and incidents involving
parental authority.”
Chapter 2 – Separation in Fact

 Art. 239. When a husband and wife are separated in fact, or one has abandoned
the other and one of them seeks judicial authorization for a transaction where the
consent of the other spouse is required by law but such consent is withheld or
cannot be obtained, a verified petition may be filed in court alleging the foregoing
facts.
The petition shall attach the proposed deed, if any, embodying the transaction,
and, if none shall describe in detail the said transaction and state the reason why
the required consent thereto cannot be secured. In any case, the final deed duly
executed by the parties shall be submitted to and approved by the court.
 Art. 240. Claims for damages by either spouse, except costs of the proceedings,
may be litigated only in a separate action.
 Art. 241. Jurisdiction over the petition shall, upon proof of notice to the other
spouse, be exercised by the proper court authorized to hear family cases, if one
exists, or in the regional trial court or its equivalent sitting in the place where
either of the spouses resides.
 Art. 242. Upon the filing of the petition, the court shall notify the other spouse,
whose consent to the transaction is required, of said petition, ordering said spouse
to show cause why the petition should not be granted, on or before the date set in
said notice for the initial conference. The notice shall be accompanied by a copy
of the petition and shall be served at the last known address of the spouse
concerned.
 Art. 243. A preliminary conference shall be conducted by the judge personally
without the parties being assisted by counsel. After the initial conference, if the
court deems it useful, the parties may be assisted by counsel at the succeeding
conferences and hearings.
 Art. 244. In case of non-appearance of the spouse whose consent is sought, the
court shall inquire into the reasons for his failure to appear, and shall require such
appearance, if possible.
 Art. 245. If, despite all efforts, the attendance of the non-consenting spouse is not
secured, the court may proceed ex parte and render judgment as the facts and
circumstances may warrant. In any case, the judge shall endeavor to protect the
interests of the non-appearing spouse.
 Art. 246. If the petition is not resolved at the initial conference, said petition shall
be decided in a summary hearing on the basis of affidavits, documentary evidence
or oral testimonies at the sound discretion of the court. If testimony is needed, the
court shall specify the witnesses to be heard and the subject-matter of their
testimonies, directing the parties to present said witnesses.
 Art. 247. The judgment of the court shall be immediately final and executory.
 Art. 248. The petition for judicial authority to administer or encumber specific
separate property of the abandoning spouse and to use the fruits or proceeds
thereof for the support of the family shall also be governed by these rules.
Chapter 3 – Incidents Involving Parental Authority

 Art. 249. Petitions filed under Articles 223, 225 and 235 of this Code involving
parental authority shall be verified.. (n)
 Art. 250. Such petitions shall be verified and filed in the proper court of the
place where the child resides. (n)
 Art. 251. Upon the filing of the petition, the court shall notify the parents or,
in their absence or incapacity, the individuals, entities or institutions
exercising parental authority over the child. (n)
 Art. 252. The rules in Chapter 2 hereof shall also govern summary proceedings
under this Chapter insofar as they are applicable.
Characteristics of summary proceedings
in the Family Code
1. The petition shall be verified, to assure its truthfulness.
2. Notice of the filing of the petition should always be sent to the respondent at
his or her last known address, as part of due process.
3. No periods are set, and it is up to the judge to determine the period within
which the respondent should answer the petition and the hearing thereof,
which should be very short, considering that the proceedings are summary.
4. There is a preliminary conference wherein lawyers are excluded, since in
some cases, they are only obstructions to a compromise between the parties.
5. The appearance of the trial fiscal of the court is not required since he might
just be absent or come unprepared.
6. The preliminary conference should be conducted personally by the judge in
the nature of an inquisitional hearing.
Characteristic of summary proceedings
in the Family Code
7. The proceeding can be decided on the basis of affidavits or other
documentary evidence because of its summary nature, and oral testimonies of
witnesses will be required only when needed and at the discretion of the
court.
8. The case shall be decided in the most expeditious manner and without regard
to technical rules.
9. The judgment of the court shall be immediately final and executory.
 Supreme Court

Republic vs. “The Family Code was explicit that the court’s
judgment in summary proceedings, such as the

Cantor declaration of presumptive death of an absent

spouse under Article 41 of the Family Code,
shall be immediately final and executory.
With the judgment being final, it is necessarily
Judgment in follows that it is no longer subject to an
appeal, the dispositions and conclusions
summary therein having become immutable and
unalterable not only as against the parties but
proceedings not even as against the courts. Modification of the
court’s ruling, no matter how erroneous is no
appealable longer permissible. The final and executory
nature of this summary proceeding thus
prohibits resort to appeal.”
Republic vs. Supreme Court
Bermudez-Lorino
“In Summary Judicial Proceedings under
the Family Code, there is no reglementary
Judgment in period within within which to perfect an
summary appeal, precisely because judgments
rendered thereunder, by express provision
proceedings not of Article 247, Family Code are
‘immediately final and executory.’”
appealable
 Supreme Court
“By express provision of law, the judgment of
the court in a summary proceeding shall be
immediately final and executory. As a matter
of course, it follows that no appeal can be had
Republic vs. of the trial court’s judgment in a summary
proceeding for the declaration of presumptive
Tango death of an absent spouse under Article 41 of
the Family Code. It goes without saying,
however that an aggrieved party may file a
petition for certiorari to question the abuse of
Certiorari is the discretion amounting to lack of jurisdiction.
Such petition should be filed in the Court of
Appeals in accordance with the Doctrine of
proper remedy Hierarchy of Courts. To be sure, eve if the
Court’s original jurisdiction to issue a writ of
certiorari is concurrent with the RTCs and the
CA in certain cases, such concurrence does not
sanction an unrestricted freedom of choice of
court forum.”
Republic vs.
Cantor Supreme Court
“The Court, fully aware of the possible
collusion of spouses in nullifying their
marriage, has consistently applied the ‘strict
Strict standard standard’ approach. This is to ensure that a
petition for declaration of presumptive death
approach to under Article 41 of the Family Code is not used
as a tool to conveniently circumvent the laws.
protect and Courts should never allow procedural shortcuts
and should ensure that the stricter standard
strengthen required by the Family Code is met.”

marriage
The end! 