WHO MAY ASK FOR THE DECLARATION OF ABSENCE?

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Published — January 16, 2021 

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

Read also: DECLARATION OF ABSENCE

• The spouse present may ask for the declaration of absence of the absentee spouse.

• The heirs instituted in a will or relatives who may succeed by the law of intestacy (without a will), may ask for the declaration of absence.

• Those who may have over the property of the absentee some right subordinated to the condition of his death may ask for the declaration of absence.

Two years having elapsed without any news about the absentee or five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared. In such case, who may ask for the declaration of his absence?

New Civil Code provides that:

“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 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 or without a will;
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:

1. The petition to declare a husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings.
2. 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;
3. 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.
4. 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;
5. 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.

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

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