LESSON 6: Rules Governing Persons Who Are Absent

Study Guide Q’s:

1. When may absence be judicially declared?

When can one be declared an absentee? Civil Code provides that: 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.

2. Who may ask for the declaration of absence?

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.”

The judicial declaration of absence, however, shall not take effect until Six (6) months after its
publication in a newspaper of general circulation.

In Reyes vs. Alejandro, L-32026, January 16, 1986, the Supreme Court laid down certain rules on
the declaration of absence of a person:

An absentee person needs to be judicially declared an absentee if he has properties which have to be taken
cared of or administered by a representative appointed by the court; or if the absentee spouse is asking for
separation of property; or if the absentee is the husband, his wife asking the court that the administration of
all classes of property in the marriage be transferred to her;

The sole purpose of the filing of the petition to declare the husband absent is to establish the absence of the
husband, who left no property; the petition should be dismissed, because there is no need to declare him
judicially absent.

The reason for the rule is that there is no need for such declaration because there is no property to take care
of or administer. Therefore, it would be an exercise in futility to have a declaration of absence;

For the purpose of the civil marriage law, it is not necessary to have the former spouse judicially declared an
absentee.
The declaration of absence made in accordance with the provision of the Civil Code has for its sole purpose
to enable the taking of necessary precautions for the administration of the estate of the absentee.

For the celebration of the civil marriage, however, the law only requires that the former spouse has been
absent for four (4) consecutive years at the time of the second marriage; that the spouse present does not
know his or her former spouse to be living; that such former spouse is generally reputed to be dead and, that
the spouse present so believes the same at the time of the celebration of the marriage.
3. When shall judicial declaration of absence becomes effective?

Article 386. The judicial declaration of absence shall not take effect until six months
after its publication in a newspaper of general circulation.

4. What are the rights of a wife as an administratrix in instances where her spouse is
an absentee?

ARTICLE 196 With the conjugal partnership subsisting, the administration of all classes
of property in the marriage may be transferred by the courts to the wife: (1) When she
becomes the guardian of her husband; (2) When she asks for the declaration of his
absence; (3) In case of civil interdiction of the husband.

5. When shall administration of the property of the absentee spouse cease?

Art. 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.

Periods
1. 2 years – if he did not leave an agent
2. 5 years – if he left an agent

Computation of Period
a. If no news, the period must be computed from the date of disappearance.
b. If there is news, the period must be computed from the last time the
absentee was referred to in the news (not receipt of last news)

For example, X in 1996 goes on a world tour. On March 1, X poses for a

picture and sends a postcard. This is received by Y on September 1. X is
not heard from again. According to Professor Balane, the disappearance
should be counted from March 1 and not September 1. Counting from
September 1 just doesn’t make sense!

The purpose of the declaration of absence is for the court to have someone to
administer the property of the absentee – Article 384. If the absentee left no
property to administer, then one cannot resort to a declaration of absence.
For purposes of re-marriage, a declaration of absence is not proper. In this
case, what is required is a summary proceeding for presumptive death.
6. When may a person be presumed dead?

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. Under the Civil Code, Article
390, as a general rule, a person shall be presumed dead for all purposes after an
absence of seven years, except for those of succession
(see codal for more info)

7. What are the instances of extraordinary absence?

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.

NOTE: Ordinary presumption-ordinary absence; absentee disappears under normal conditions without
danger or idea of death. 2. Extraordinary presumption-qualified absence; disappearance with great
probability of death

8. What is the effect when an absentee appears?

Article 392. 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

9. What is the effect of absence upon the contingent rights of the absentee?

Article 393. Whoever claims a right pertaining to a person whose existence is not
recognized must prove that he was living at the time his existence was necessary in
order to acquire said right. (195)

Article 394. Without prejudice to the provision of the preceding article, upon the opening
of a succession to which an absentee is called, his share shall accrue to his coheirs,
unless he has heirs, assigns, or a representative. They shall all, as the case may be,
make an inventory of the property. (196a)
Notes:
1) Rules on rights contingent on the absentee being alive or dead.

a. Claimants. Claimants who have rights pertaining to an absentee has to prove that the
absentee was alive at the time that was necessary to acquire such rights. The part
concerning the absentee "whose existence is not recognized" may relate to those who
are presumed dead. If they are presumed dead, then their existence in terms of being
alive, is not recognized. That's why claimants whose rights are contingent on absentees
must prove that the absentees were alive at that critical point to acquire rights.

b. Co-heirs.

General Rule: If there are no claimants, the shares of the absentee shall accrue to the
co-heirs.

Exception: The absentee has heirs, assigns, or a representative.

NB: Claimants take precedence over co-heirs should the absentee's estate be opened
for succession.

2) Duty to make inventory. The ones who are required to make an inventory are all of the
foregoing, namely:
(a) Claimants;
(b) Co-heirs:
(c) Absentee's heirs, assigns, or representative.

a. Same; Rationale. The reason for making in the inventory is that there is
that possibility of re-appearance by an absentee who has been presumed dead

Article 395. The provisions of the preceding article are understood to be without
prejudice to the action of petition for inheritance or other rights which are vested in the
absentee, his representatives or successors in interest. These rights shall not be
extinguished save by lapse of time fixed for prescription. In the record that is made in the
Registry of the real estate which accrues to the coheirs, the circumstance of its being
subject to the provisions of this article shall be stated. (197)

Notes:

1) Petition for inheritance and other rights. The rules on rights contingent on the
absentees being alive or dead will not affect any action/petition for inheritance or other
rights that may have been vested in the absentees (prior or during absence but before
being declared presumptively dead), their representatives, or their
successors-in-interest.

a. Same; Non-extinguishable except for prescription. The rights mentioned in the

immediately preceding paragraph are non-extinguishable - except if for prescription, i.e.,
expiration of the cause of action.

2) Recording with the Registry of Deeds. For the absentee's share on real estate which
accrues to the heirs, the circumstances leading to such shall be recorded in the Registry
of Deeds which has jurisdiction over the property. This is to serve as a cautionary notice
to the public, particularly for any would-be buyer or creditor, as there is that possibility
that the absentee may reappear in the future. Recording in the Registry of Deeds is
notice to the whole world.

a. Same; Section 52 of PD 1529: "Constructive notice upon registration.

Every conveyance, mortgage, lease, lien, attachment, order, judgment,

instrument or entry affecting registered land shall, if registered, filed or entered in the
office of the Register of Deeds for the province or city where the land to which it relates
lies, be constructive notice to all persons from the time of such registering, filing or
entering."

"By virtue of registration, a constructive notice to the whole world of such

voluntary or involuntary instrument or court writ or processes, is thereby created."
(Saberon v. Ventanilla, Jr., G.R. No. 192669, 21 April 2014)

Article 396. Those who may have entered upon the inheritance shall appropriate the
fruits received in good faith so long as the absentee does not appear, or while his
representatives or successors in interest do not bring the proper actions.

Notes:

1) Rules on fruits of inheritance.

a. General Rule: The heirs, assigns, or any other persons who have entered
upon the inheritance have the right to appropriate fruits received in good faith from what
they may have inherited or received. For instance, rents due to lease or actual fruits from
harvests.

b. Exception: Such rights will cease or stop when the absentees appear, or their
representatives or successors-interest bring proper action in court.
References:

Absence is that special legal status of one who is not in his domicile, his whereabouts being
unknown and it being uncertain whether he is dead or alive.

Example: When Lacson went to the US, Lacson was not absent since his whereabouts were
known.

Stages of Absence (According to Seriousness)

1. Temporary or Provisional (Articles 381 – 383)

Art. 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.

Art. 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.

Art. 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.

Requisites for Provisional Absence

1. Absence for an appreciable period which depends upon the circumstances
2. Immediate necessity for his representation in some specific urgent matter
3. Absentee left no agent or the agency has expired. The declaration of provisional
absence (must go to court) is limited to a specific act.

2. Normal or Declared (Articles 384 – 389)

Art. 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.

Art. 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.

Art. 386. The judicial declaration of absence shall not take effect until six months after its
publication in a newspaper of general circulation.

Art. 387. An administrator of the absentee’s property shall be appointed in accordance with
article 383.

Art. 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.

Art. 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.

Periods
1. 2 years – if he did not leave an agent
2. 5 years – if he left an agent

Computation of Period

a. If no news, the period must be computed from the date of disappearance.

b. If there is news, the period must be computed from the last time the absentee was
referred to in the news (not receipt of last news)

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.