Death by legal fiction

Published in Daily Tribune on February 03, 2023
by: Jose Roger O. Arroz

Absence commonly denotes a state where one is not in the place where one ought to be. Under the Law, for one to be absent, one need not be dead. But it is interesting to note that under our legal system, a person can be presumed dead on account of his or her “absence.”

The New Civil Code of the Philippines provides rules for the “Presumption of Death”. Under these rules, one’s “absence” after a certain number of years, it is unknown whether or not the absentee still lives, gives rise to the presumption that he is dead for various purposes. Within this context, “absence” means that a person is not present in his domicile and is unheard of for X number of years and his actual residence is unknown, giving rise to a well-founded belief that his existence is doubtful.

The period of absence required differs depending on the purpose and of the absentee. Ordinarily, one can be presumed dead for all purposes, except succession, after an absence of seven years (Art. 390, par. 1, NCC).

For the purpose of opening succession and transmitting the absentee’s estate to his heirs, one is deemed dead if he/she has been absent for at least ten years. Although this does not apply where one became an absentee at the age of 75, as the law here requires only five years to presume him/her dead, for the purpose of succession (Art. 390, par. 2, NCC).

However, if the absence is due to extraordinary circumstances, the law requires the lapse of only four years, reckoning from the said event. This is enumerated under Art. 391, to wit:

(1) A person on board a vessel lost during a sea voyage, or an airplane that is missing, who has not been heard of for four years since the loss of the vessel or airplane;

(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.

For the specific purpose of “remarriage,” Article 41 of the Family Code requires that (1) the husband or wife has been absent for four consecutive years, or two years where there was danger of death under the circumstances in Article 391 of the Civil Code at the time of disappearance; (2) the spouse present has a well-founded belief that the absent spouse is already dead; and (3) the spouse present has obtained a judicial declaration of presumptive death.

Of course, all of the above instances are without prejudice to the effects of the reappearance of the absentee. After all, the law only creates a presumption and not a proven fact. Art. 392 provides that if the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. The fact of actual or proven presence necessarily defeats the presumption created under the law.

The sudden reappearance of the absentee spouse will not immediately resurrect the prior marriage.

The subsequent marriage contracted by the spouse present is valid and subsisting. Meanwhile, the prior marriage has been terminated subject to the condition of the absent spouse’s reappearance and compliance with certain procedures laid down by law.

The fact of reappearance alone will not trigger the termination of the subsequent marriage. What causes its termination is the recording of the affidavit of reappearance in the civil registry where the parties to the subsequent marriage reside. The spouses of the subsequent marriage must also be informed of the fact of reappearance so that they can dispute the same in the proper court.

Read more: https://tribune.net.ph/2023/02/02/death-by-legal-fiction/

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