G.R.
163604 ; May 6, 2005 ; 458 SCRA 200 It is an ordinary proceeding since Rule 109 of the
Republic of the Philippines, petitioner
vs CA, Hon. Judge Fortunito Madrona and Apolinaria
Jomoc, respondents.
PRINCIPLES:
1. A petition for declaration of presumptive death for the
purpose of contracting a subsequent marriage is not a
special proceeding. It is a summary ordinary
proceeding.
2. Ordinary civil action vs. Special proceeding
- Ordinary civil action = one by which a party sues
another for the enforcement or protection of a right, or
the prevention of redress of a wrong (Section 3(a), Rule
1 of the Rules of Court)
- period to appeal = 15 days
- perfection of appeal = notice of appeal
- Special proceeding = a remedy by which a party seeks
to establish a status, a right or a particular fact (Section
3(c) Rule 1 of the Rules of Court)
- period to appeal = 30 days
- perfection of appeal = notice of appeal + record on
appeal
FACTS:
The RTC granted the petition for declaration of
presumptive death and accordingly declared the
absentee spouse, who had left his petitioner-wife nine
years earlier, presumptively dead. The Republic, through
the OSG, sought to appeal the RTC’s order by filing a
Notice of Appeal. RTC disapproved the Notice of Appeal
since RTC believed that the present case is a special
proceeding that needs a record of appeal to perfect the
appeal. The Republic filed a Motion for Reconsideration
which was denied. The Republic then filed a Petition for
Certiorari before the Court of Appeals which was also
denied on the same grounds.
ISSUE: WON a petition for declaration of the
presumptive death of a person is in the nature of a
special proceeding
HELD: NO. A petition for declaration of presumptive
death is a summary ordinary proceeding and not a
special proceeding.
Revised Rules of Court, which enumerates the cases
wherein multiple appeals are allowed and a record on
appeal is required for an appeal to be perfected, does
not include declaration of presumptive death of an
absent spouse in its enumeration.
It is a summary proceeding since Article 41 of the Family
Code provides that a petition for declaration of
presumptive death for the purpose of contracting the
subsequent marriage is a summary proceeding.
Not being a special proceeding, the petition therefore
does not need a record of appeal to perfect the appeal.
Rule 41, Section 2 subsection (a) of the Revised Rules
of Court provide that a record of appeal is only needed in
special proceedings and other cases of multiple or
separate appeals where the law or these Rules so
require.
ARTICLE 44
– If both spouses of the subsequent marriage acted in
bad faith, said marriage shall be void ab initio and all
donations by reason of marriage and testamentary
dispositions made by one in favor of the other are
revoked by operation of law.
EXPLANATION:
A person wanting to remarry must first obtain a court
decision declaring the previous marriage void before
getting married.
The law makes reference of the subsequent marriage
after the declaration of presumptive death of the absent
spouse but before its court declaration, proof is required
in order for the court to declare absent spouse
presumptively dead.
The petitioner should prove before the court that she/he
exerted earnest and diligent effort to locate the absent
spouse.
If the spouse knew the whereabouts of the absent
spouse or connived with subsequent spouse and files for
the declaration of presumptive death of the said spouse
and remarry, their act is in bad faith. The net effect in this
subsequent marriage is void. There is no need to
perform positive act of revocation because the law itself
revokes the same and all donation by reason of
marriage and testamentary dispositions made by one in
favor of the other is also void, so all properties is
reverted to the former owner.
CELERINA J. SANTOS, petitioner
VS. RICARDO T. SANTOS,respondent
‘Petition for Review on Certiorari, the CA dismissed the
petition of Celerina Santos for the annulment of the trial
court’s judgment declaring her presumptive death’
FACTS:
of new trial, appeal, petition for relief are no longer
available through no fault of the petitioner.
If, as Celerina contends, Ricardo was in bad faith when
he filed his petition to declare her presumptively dead
and when he contracted the subsequent marriage, such
marriage would be considered void for being bigamous
under Article 35(4) of the Family Code

On July 27,2007, RTC declared petitioner The grounds for annulment of judgment are extrinsic
Celerina J. Santos presumptively dead after her fraud and lack of jurisdiction.
husband, respondent Ricardo had filed a petition for
It is extrinsic or collateral when a litigant commit acts
declaration of absence or presumptive death for the
outside of the trial which prevents a partly from having a
purpose of remarriage. In his petition, Ricardo alleged
real contest, or from presenting all of his case, such that
that when they move to Tarlac and things went wrong
there is no fair submission of the controversy
with their business so Celerina left to work abroad as
Domestic Helper in Hong Kong and never heard from Celerina claimed that because of these, she was
her again. He claimed that he exerted effort to locate deprived of notice and opportunity to oppose Ricardo's
Celerina, he went to Celerina’s parents but they, too, did petition to declare her presumptively dead. Celerina
not not know her whereabouts. It was 12 years from the further claimed that the court did not acquire jurisdiction
date of his RTC petition since Celerina left. Ricardo because the Office of the Solicitor General and the
believed that she passed away. In September 17,2008 Provincial Prosecutor's Office were not given copies of
Ricardo remarried. Ricardo's petition. She does not admit to have been
absent. She also seeks not merely the termination of the
Celerina filed a petition that she learned about
subsequent marriage but also the nullification of its
Ricardo’s petition only sometimes in October 2008 when
effects. She contends that reappearance is not a
she could no longer avail the remedies of new trial,
sufficient remedy because it will only terminate the
appeal, petition for relief, or other appropriate remedies.
subsequent marriage but not nullify the effects of the
On November 17, 2008, she filed a petition for declaration of her presumptive death and the
annulment of judgment before the court of appeal on the subsequent marriage.
grounds of extrinsic fraud and lack of jurisdiction,
Celerina claimed that she never resided in Tarlac. She
also never left and worked as a domestic helper abroad.
It was not true that she had been absent for 12 years.
Ricardo was aware that she left their conjugal dwelling in
Quezon City. It was he who left the conjugal dwelling in
2008 to cohabit with another woman. She was deprived
of any notice of and opportunity to oppose the petition
declaring her presumptive dead.

ISSUE:

Whether or not the declaration of appearance of a

presumptively dead spouse in accordance with Article 42
of the family Code is the proper remedy for a
fraudulently obtained judgment declaring presumptive
death.

RULING: The case is REMANDED to the CA for

determination of the existence of extrinsic fraud.

An action for Annulment of judgment is proper when the

declaration of presumptive death is obtained
fraudulently. It is the remedy when RTC’s judgment,
order or resolution has become final, and the remedies