See - 214243.pdf
REPUBLIC VS. TAMPUS, G.R. NO. 214243, MARCH 16, 2016.
“x x x.
Before a judicial declaration of presumptive death can be obtained, it must be shown that the prior spouse had been absent for four consecutive years and the present spouse had a well-founded belief that the prior spouse was already dead. Under Article 4119 of the Family Code of the Philippines (Family Code), there are four (4) essential requisites for the declaration of presumptive death:
(1) that the absent spouse has been missing for four ( 4) consecutive years, or two (2) 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 proceeding for the declaration of presumptive death of the absentee. 20
The burden of proof rests on the present spouse to show that all the foregoing requisites under Article 41 of the Family Code exist. Since it is the present spouse who, for purposes of declaration of presumptive death, substantially asserts the affirmative of the issue, it stands to reason that the burden of proof lies with him/her. He who alleges a fact has the burden of proving it and mere allegation is not evidence.21
The "well-founded belief' in the absentee's death requires the present spouse to prove that his/her belief was the result of diligent and reasonable efforts to locate the absent spouse and that based on these efforts and inquiries, he/she believes that under the circumstances, the absent spouse is already dead. It necessitates exertion of active effort, not a passive one. As such, the mere absence of the spouse for such periods prescribed under the law, lack of any news that such absentee spouse is still alive, failure to communicate, or general presumption of absence under the Civil Code would not suffice.22 The premise is that Article 41 of the Family Code places upon the present spouse the burden of complying with the stringent requirement of "well-founded belief' which can only be discharged upon a showing of proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouse's whereabouts, but more importantly, whether the latter is still alive or is already dead. 23
In this case, Nilda testified that after Dante's disappearance, she tried to locate him by making inquiries with his parents, relatives, and neighbors as to his whereabouts, but unfortunately, they also did not know where to find him. Other than making said inquiries, however, Nilda made no further efforts to find her husband. She could have called or proceeded to the AFP headquarters to request information about her husband, but failed to do so. She did not even seek the help of the authorities or the AFP itself in finding him. Considering her own pronouncement that Dante was sent by the AFP on a combat mission to Jolo, Sulu at the time of his disappearance, she could have inquired from the AFP on the status of the said mission, or from the members of the AFP who were assigned thereto. To the Court's mind, therefore, Nilda failed to actively look for her missing husband, and her purported earnest efforts to find him by asking Dante's parents, relatives, and friends did not satisfy the strict standard and degree of diligence required to create a "well-founded belief' of his death.
Furthermore, Nilda did not present Dante's family, relatives, or neighbors as witnesses who could have corroborated her asseverations that she earnestly looked for Dante. These resource persons were not even named. In Republic v. Nolasco,24 it was held that the present spouse's bare assertion that he inquired from his friends about his absent spouse's whereabouts was found insufficient as the names of said friends were not identified in the testimony nor presented as witnesses.25
Finally, other than Nilda's bare testimony, no other corroborative evidence had been offered to support her allegation that she exerted efforts to find him but was unsuccessful. What appears from the facts as. established in this case was that Nilda simply allowed the passage of time without actively and diligently searching for her husband, which the Court cannot accept as constituting a "well-founded belief' that her husband is dead. Whether or not the spouse present acted on a well-founded belief of death of the absent spouse depends upon the inquiries to be drawn from a great many circumstances occurring before and after the disappearance of the absent spouse and the nature and extent of the inquiries made by the present spouse.26
x x x.”