Vous êtes sur la page 1sur 18

ETHICAL ISSUES IN FAMILY LAW

PALE, 2nd Sem., SY 2016-2017

Applicable laws/canons of the CPR/jurisprudence per topic/situation:

Situation Nos. 2 and 3: Support and Custody


-Canons: 1, 1.01, 1.02, 1.04, 9, 15
-Art. 347-348 of the Revised Penal Code

Title Twelve
CRIMES AGAINST THE CIVIL STATUS OF PERSONS
Chapter one
SIMULATION OF BIRTHS AND USURPATION OF CIVIL STATUS
Art. 347. Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate
child. The simulation of births and the substitution of one child for another shall be punished by prision mayor and a
fine of not exceeding 1,000 pesos.
The same penalties shall be imposed upon any person who shall conceal or abandon any legitimate child with intent to
cause such child to lose its civil status.
Any physician or surgeon or public officer who, in violation of the duties of his profession or office, shall cooperate in
the execution of any of the crimes mentioned in the two next preceding paragraphs, shall suffer the penalties therein
prescribed and also the penalty of temporary special disqualification.
Art. 348. Usurpation of civil status. The penalty of prision mayor shall be imposed upon any person who shall usurp
the civil status of another, should he do so for the purpose of defrauding the offended part or his heirs; otherwise, the
penalty of prision correccional in its medium and maximum periods shall be imposed.chanrobles virtual law library
-Domestic Adoption Law, Republic Act 8552

Republic Act No. 8552 February 25, 1998


AN ACT ESTABLISHING THE RULES AND POLICIES ON THE DOMESTIC ADOPTION OF FILIPINO
CHILDREN AND FOR OTHER PURPOSES

ARTICLE I
GENERAL PROVISIONS
Section 1. Short Title. This Act shall be known as the "Domestic Adoption Act of 1998."
Section 2. Declaration of Policies. (a) It is hereby declared the policy of the State to ensure that every child remains
under the care and custody of his/her parent(s) and be provided with love, care, understanding and security towards the
full and harmonious development of his/her personality. Only when such efforts prove insufficient and no appropriate
placement or adoption within the child's extended family is available shall adoption by an unrelated person be considered.
(b) In all matters relating to the care, custody and adoption of a child, his/her interest shall be the paramount
consideration in accordance with the tenets set forth in the United Nations (UN) Convention on the Rights of the Child; UN
Declaration on Social and Legal Principles Relating to the Protection and Welfare of Children with Special Reference to
Foster Placement and Adoption, Nationally and Internationally; and the Hague Convention on the Protection of Children and
Cooperation in Respect of Intercountry Adoption. Toward this end, the State shall provide alternative protection and
assistance through foster care or adoption for every child who is neglected, orphaned, or abandoned.
(c) It shall also be a State policy to:
(i) Safeguard the biological parent(s) from making hurried decisions to relinquish his/her parental authority over his/her child;
(ii) Prevent the child from unnecessary separation from his/her biological parent(s);
(iii) Protect adoptive parent(s) from attempts to disturb his/her parental authority and custody over his/her adopted child.
Any voluntary or involuntary termination of parental authority shall be administratively or judicially declared so as
to establish the status of the child as "legally available for adoption" and his/her custody transferred to the
Department of Social Welfare and Development or to any duly licensed and accredited child-placing or child-caring
agency, which entity shall be authorized to take steps for the permanent placement of the child;
(iv) Conduct public information and educational campaigns to promote a positive environment for adoption;
(v) Ensure that sufficient capacity exists within government and private sector agencies to handle adoption
inquiries, process domestic adoption applications, and offer adoption-related services including, but not limited to,
parent preparation and post-adoption education and counseling; and
(vi) Encourage domestic adoption so as to preserve the child's identity and culture in his/her native land, and only
when this is not available shall intercountry adoption be considered as a last resort.
Section 3. Definition of Terms. For purposes of this Act, the following terms shall be defined as:
(a) "Child" is a person below eighteen (18) years of age.
(b) "A child legally available for adoption" refers to a child who has been voluntarily or involuntarily committed to the
Department or to a duly licensed and accredited child-placing or child-caring agency, freed of the parental authority of
his/her biological parent(s) or guardian or adopter(s) in case of rescission of adoption.
(c) "Voluntarily committed child" is one whose parent(s) knowingly and willingly relinquishes parental authority to the Department.
(d) "Involuntarily committed child" is one whose parent(s), known or unknown, has been permanently and judicially
deprived of parental authority due to abandonment; substantial, continuous, or repeated neglect; abuse; or
incompetence to discharge parental responsibilities.
(e) "Abandoned child" refers to one who has no proper parental care or guardianship or whose parent(s) has deserted
him/her for a period of at least six (6) continuous months and has been judicially declared as such.
(f) "Supervised trial custody" is a period of time within which a social worker oversees the adjustment and emotional
readiness of both adopter(s) and adoptee in stabilizing their filial relationship.
(g) "Department" refers to the Department of Social Welfare and Development.
(h) "Child-placing agency" is a duly licensed and accredited agency by the Department to provide comprehensive child
welfare services including, but not limited to, receiving applications for adoption, evaluating the prospective adoptive
parents, and preparing the adoption home study.
(i) "Child-caring agency" is a duly licensed and accredited agency by the Department that provides twenty four (24)-
hour residential care services for abandoned, orphaned, neglected, or voluntarily committed children.
(j) "Simulation of birth" is the tampering of the civil registry making it appear in the birth records that a certain child
was born to a person who is not his/her biological mother, causing such child to lose his/her true identity and status.

ARTICLE II
PRE-ADOPTION SERVICES
Section 4. Counseling Service. The Department shall provide the services of licensed social workers to the following:
(a) Biological Parent(s) Counseling shall be provided to the parent(s) before and after the birth of his/her child. No
binding commitment to an adoption plan shall be permitted before the birth of his/her child. A period of six (6) months
shall be allowed for the biological parent(s) to reconsider any decision to relinquish his/her child for adoption before
the decision becomes irrevocable. Counseling and rehabilitation services shall also be offered to the biological
parent(s) after he/she has relinquished his/her child for adoption.
Steps shall be taken by the Department to ensure that no hurried decisions are made and all alternatives for the child's
future and the implications of each alternative have been provided.
(b) Prospective Adoptive Parent(s) Counseling sessions, adoption fora and seminars, among others, shall be provided
to prospective adoptive parent(s) to resolve possible adoption issues and to prepare him/her for effective parenting.
(c) Prospective Adoptee Counseling sessions shall be provided to ensure that he/she understands the nature and effects of
adoption and is able to express his/her views on adoption in accordance with his/her age and level of maturity.
Section 5. Location of Unknown Parent(s). It shall be the duty of the Department or the child-placing or child-caring
agency which has custody of the child to exert all efforts to locate his/her unknown biological parent(s). If such efforts
fail, the child shall be registered as a foundling and subsequently be the subject of legal proceedings where he/she shall
be declared abandoned.
Section 6. Support Services. The Department shall develop a pre-adoption program which shall include, among
others, the above mentioned services.

ARTICLE III
ELIGIBILITY
Section 7. Who May Adopt. The following may adopt:
(a) Any Filipino citizen of legal age, in possession of full civil capacity and legal rights, of good moral character, has
not been convicted of any crime involving moral turpitude, emotionally and psychologically capable of caring for
children, at least sixteen (16) years older than the adoptee, and who is in a position to support and care for his/her children in
keeping with the means of the family. The requirement of sixteen (16) year difference between the age of the adopter and
adoptee may be waived when the adopter is the biological parent of the adoptee, or is the spouse of the adoptee's parent;
(b) Any alien possessing the same qualifications as above stated for Filipino nationals: Provided, That his/her country
has diplomatic relations with the Republic of the Philippines, that he/she has been living in the Philippines for at least
three (3) continuous years prior to the filing of the application for adoption and maintains such residence until the
adoption decree is entered, that he/she has been certified by his/her diplomatic or consular office or any appropriate
government agency that he/she has the legal capacity to adopt in his/her country, and that his/her government allows
the adoptee to enter his/her country as his/her adopted son/daughter: Provided, Further, That the requirements on
residency and certification of the alien's qualification to adopt in his/her country may be waived for the following:
(i) a former Filipino citizen who seeks to adopt a relative within the fourth (4th) degree of consanguinity or affinity;
(ii) one who seeks to adopt the legitimate son/daughter of his/her Filipino spouse; or
(iii) one who is married to a Filipino citizen and seeks to adopt jointly with his/her spouse a relative within the
fourth (4th) degree of consanguinity or affinity of the Filipino spouse; or
(c) The guardian with respect to the ward after the termination of the guardianship and clearance of his/her financial
accountabilities.
Husband and wife shall jointly adopt, except in the following cases:
(i) if one spouse seeks to adopt the legitimate son/daughter of the other; or
(ii) if one spouse seeks to adopt his/her own illegitimate son/daughter: Provided, However, that the other spouse has
signified his/her consent thereto; or
(iii) if the spouses are legally separated from each other.
In case husband and wife jointly adopt, or one spouse adopts the illegitimate son/daughter of the other, joint parental
authority shall be exercised by the spouses.
Section 8. Who May Be Adopted. The following may be adopted:
(a) Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption;
(b) The legitimate son/daughter of one spouse by the other spouse;
(c) An illegitimate son/daughter by a qualified adopter to improve his/her status to that of legitimacy;
(d) A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the
adopter(s) as his/her own child since minority;
(e) A child whose adoption has been previously rescinded; or
(f) A child whose biological or adoptive parent(s) has died: Provided, That no proceedings shall be initiated within six
(6) months from the time of death of said parent(s).
Section 9. Whose Consent is Necessary to the Adoption. After being properly counseled and informed of his/her right to
give or withhold his/her approval of the adoption, the written consent of the following to the adoption is hereby required:
(a) The adoptee, if ten (10) years of age or over;
(b) The biological parent(s) of the child, if known, or the legal guardian, or the proper government instrumentality
which has legal custody of the child;
(c) The legitimate and adopted sons/daughters, ten (10) years of age or over, of the adopter(s) and adoptee, if any;
(d) The illegitimate sons/daughters, ten (10) years of age or over, of the adopter if living with said adopter and the
latter's spouse, if any; and
(e) The spouse, if any, of the person adopting or to be adopted.

ARTICLE IV
PROCEDURE
Section 10. Hurried Decisions. In all proceedings for adoption, the court shall require proof that the biological
parent(s) has been properly counseled to prevent him/her from making hurried decisions caused by strain or anxiety to
give up the child, and to sustain that all measures to strengthen the family have been exhausted and that any prolonged
stay of the child in his/her own home will be inimical to his/her welfare and interest.
Section 11. Case Study. No petition for adoption shall be set for hearing unless a licensed social worker of the
Department, the social service office of the local government unit, or any child-placing or child-caring agency has
made a case study of the adoptee, his/her biological parent(s), as well as the adopter(s), and has submitted the report
and recommendations on the matter to the court hearing such petition.
At the time of preparation of the adoptee's case study, the concerned social worker shall confirm with the Civil Registry
the real identity and registered name of the adoptee. If the birth of the adoptee was not registered with the Civil
Registry, it shall be the responsibility of the concerned social worker to ensure that the adoptee is registered.

The case study on the adoptee shall establish that he/she is legally available for adoption and that the documents to
support this fact are valid and authentic. Further, the case study of the adopter(s) shall ascertain his/her genuine
intentions and that the adoption is in the best interest of the child.
The Department shall intervene on behalf of the adoptee if it finds, after the conduct of the case studies, that the
petition should be denied. The case studies and other relevant documents and records pertaining to the adoptee and the
adoption shall be preserved by the Department.
Section 12. Supervised Trial Custody. No petition for adoption shall be finally granted until the adopter(s) has been
given by the court a supervised trial custody period for at least six (6) months within which the parties are expected to
adjust psychologically and emotionally to each other and establish a bonding relationship. During said period,
temporary parental authority shall be vested in the adopter(s).
The court may motu proprio or upon motion of any party reduce the trial period if it finds the same to be in the best
interest of the adoptee, stating the reasons for the reduction of the period. However, for alien adopter(s), he/she must
complete the six (6)-month trial custody except for those enumerated in Sec. 7 (b) (i) (ii) (iii).
If the child is below seven (7) years of age and is placed with the prospective adopter(s) through a pre-adoption
placement authority issued by the Department, the prospective adopter(s) shall enjoy all the benefits to which
biological parent(s) is entitled from the date the adoptee is placed with the prospective adopter(s).
Section 13. Decree of Adoption. If, after the publication of the order of hearing has been complied with, and no
opposition has been interposed to the petition, and after consideration of the case studies, the qualifications of the
adopter(s), trial custody report and the evidence submitted, the court is convinced that the petitioners are qualified to
adopt, and that the adoption would redound to the best interest of the adoptee, a decree of adoption shall be entered
which shall be effective as of the date the original petition was filed. This provision shall also apply in case the
petitioner(s) dies before the issuance of the decree of adoption to protect the interest of the adoptee. The decree shall
state the name by which the child is to be known.
Section 14. Civil Registry Record. An amended certificate of birth shall be issued by the Civil Registry, as required
by the Rules of Court, attesting to the fact that the adoptee is the child of the adopter(s) by being registered with his/her
surname. The original certificate of birth shall be stamped "cancelled" with the annotation of the issuance of an
amended birth certificate in its place and shall be sealed in the civil registry records. The new birth certificate to be
issued to the adoptee shall not bear any notation that it is an amended issue.
Section 15. Confidential Nature of Proceedings and Records. All hearings in adoption cases shall be confidential and
shall not be open to the public. All records, books, and papers relating to the adoption cases in the files of the court, the
Department, or any other agency or institution participating in the adoption proceedings shall be kept strictly confidential.
If the court finds that the disclosure of the information to a third person is necessary for purposes connected with or
arising out of the adoption and will be for the best interest of the adoptee, the court may merit the necessary
information to be released, restricting the purposes for which it may be used.

ARTICLE V
EFFECTS OF ADOPTION
Section 16. Parental Authority. Except in cases where the biological parent is the spouse of the adopter, all legal ties
between the biological parent(s) and the adoptee shall be severed and the same shall then be vested on the adopter(s).
Section 17. Legitimacy. The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents
and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born
to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in
keeping with the means of the family.
Section 18. Succession. In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights
of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had
left a will, the law on testamentary succession shall govern.

ARTICLE VI
RESCISSION OF ADOPTION
Section 19. Grounds for Rescission of Adoption. Upon petition of the adoptee, with the assistance of the Department
if a minor or if over eighteen (18) years of age but is incapacitated, as guardian/counsel, the adoption may be rescinded
on any of the following grounds committed by the adopter(s): (a) repeated physical and verbal maltreatment by the
adopter(s) despite having undergone counseling; (b) attempt on the life of the adoptee; (c) sexual assault or violence; or
(d) abandonment and failure to comply with parental obligations.
Adoption, being in the best interest of the child, shall not be subject to rescission by the adopter(s). However, the
adopter(s) may disinherit the adoptee for causes provided in Article 919 of the Civil Code.
Section 20. Effects of Rescission. If the petition is granted, the parental authority of the adoptee's biological parent(s),
if known, or the legal custody of the Department shall be restored if the adoptee is still a minor or incapacitated. The
reciprocal rights and obligations of the adopter(s) and the adoptee to each other shall be extinguished.
The court shall order the Civil Registrar to cancel the amended certificate of birth of the adoptee and restore his/her
original birth certificate.
Succession rights shall revert to its status prior to adoption, but only as of the date of judgment of judicial rescission.
Vested rights acquired prior to judicial rescission shall be respected.
All the foregoing effects of rescission of adoption shall be without prejudice to the penalties imposable under the Penal
Code if the criminal acts are properly proven.

ARTICLE VII
VIOLATIONS AND PENALTIES
Section 21. Violations and Penalties. (a) The penalty of imprisonment ranging from six (6) years and one (1) day to twelve
(12) years and/or a fine not less than Fifty thousand pesos (P50,000.00), but not more than Two hundred thousand pesos
(P200,000.00) at the discretion of the court shall be imposed on any person who shall commit any of the following acts:
(i) obtaining consent for an adoption through coercion, undue influence, fraud, improper material inducement, or other similar acts;
(ii) non-compliance with the procedures and safeguards provided by the law for adoption; or
(iii) subjecting or exposing the child to be adopted to danger, abuse, or exploitation.
(b) Any person who shall cause the fictitious registration of the birth of a child under the name(s) of a person(s) who is
not his/her biological parent(s) shall be guilty of simulation of birth, and shall be punished by prision mayor in its
medium period and a fine not exceeding Fifty thousand pesos (P50,000.00).
Any physician or nurse or hospital personnel who, in violation of his/her oath of office, shall cooperate in the execution of
the abovementioned crime shall suffer the penalties herein prescribed and also the penalty of permanent disqualification.
Any person who shall violate established regulations relating to the confidentiality and integrity of records, documents,
and communications of adoption applications, cases, and processes shall suffer the penalty of imprisonment ranging
from one (1) year and one (1) day to two (2) years, and/or a fine of not less than Five thousand pesos (P5,000.00) but
not more than Ten thousand pesos (P10,000.00), at the discretion of the court.
A penalty lower by two (2) degrees than that prescribed for the consummated offense under this Article shall be
imposed upon the principals of the attempt to commit any of the acts herein enumerated. Acts punishable under this
Article, when committed by a syndicate or where it involves two (2) or more children shall be considered as an offense
constituting child trafficking and shall merit the penalty of reclusion perpetua.
Acts punishable under this Article are deemed committed by a syndicate if carried out by a group of three (3) or more
persons conspiring and/or confederating with one another in carrying out any of the unlawful acts defined under this
Article. Penalties as are herein provided, shall be in addition to any other penalties which may be imposed for the same
acts punishable under other laws, ordinances, executive orders, and proclamations.
When the offender is an alien, he/she shall be deported immediately after service of sentence and perpetually excluded
from entry to the country.
Any government official, employee or functionary who shall be found guilty of violating any of the provisions of this
Act, or who shall conspire with private individuals shall, in addition to the above-prescribed penalties, be penalized in
accordance with existing civil service laws, rules and regulations: Provided, That upon the filing of a case, either
administrative or criminal, said government official, employee, or functionary concerned shall automatically suffer
suspension until the resolution of the case.
Section 22. Rectification of Simulated Births. A person who has, prior to the effectivity of this Act, simulated the birth
of a child shall not be punished for such act: Provided, That the simulation of birth was made for the best interest of the child
and that he/she has been consistently considered and treated by that person as his/her own son/daughter: Provided,
further, That the application for correction of the birth registration and petition for adoption shall be filed within five (5)
years from the effectivity of this Act and completed thereafter: Provided, finally, That such person complies with the
procedure as specified in Article IV of this Act and other requirements as determined by the Department.

ARTICLE VIII
FINAL PROVISIONS
Section 23. Adoption Resource and Referral Office. There shall be established an Adoption Resources and Referral
Office under the Department with the following functions: (a) monitor the existence, number, and flow of children
legally available for adoption and prospective adopter(s) so as to facilitate their matching; (b) maintain a nationwide
information and educational campaign on domestic adoption; (c) keep records of adoption proceedings; (d) generate
resources to help child-caring and child-placing agencies and foster homes maintain viability; and (e) do policy
research in collaboration with the Intercountry Adoption Board and other concerned agencies. The office shall be
manned by adoption experts from the public and private sectors.
Section 24. Implementing Rules and Regulations. Within six (6) months from the promulgation of this Act, the
Department, with the Council for the Welfare of Children, the Office of Civil Registry General, the Department of
Justice, Office of the Solicitor General, and two (2) private individuals representing child-placing and child-caring
agencies shall formulate the necessary guidelines to make the provisions of this Act operative.
Section 25. Appropriations. Such sum as may be necessary for the implementation of the provisions of this Act shall
be included in the General Appropriations Act of the year following its enactment into law and thereafter.
Section 26. Repealing Clause. Any law, presidential decree or issuance, executive order, letter of instruction,
administrative order, rule, or regulation contrary to, or inconsistent with the provisions of this Act is hereby repealed,
modified, or amended accordingly.
Section 27. Separability Clause. If any provision of this Act is held invalid or unconstitutional, the other provisions
not affected thereby shall remain valid and subsisting.
Section 28. Effectivity Clause. This Act shall take effect fifteen (15) days following its complete publication in any
newspaper of general circulation or in the Official Gazette.

-lawyer-client relationship; creation of such relationship

A.C. No. 6711 July 3, 2007


MA. LUISA HADJULA, complainant, vs. ATTY. ROCELES F. MADIANDA, respondent.

Under consideration is Resolution No. XVI-2004-472 of the Board of Governors, Integrated Bar of the Philippines
(IBP), relative to the complaint for disbarment filed by herein complainant Ma. Luisa Hadjula against respondent Atty.
Roceles F. Madianda.

The case started when, in an AFFIDAVIT-COMPLAINT1 bearing date September 7, 2002 and filed with the IBP
Commission on Bar Discipline, complainant charged Atty. Roceles F. Madianda with violation of Article 209 2 of the
Revised Penal Code and Canon Nos. 15.02 and 21.02 of the Code of Professional Responsibility.

In said affidavit-complaint, complainant alleged that she and respondent used to be friends as they both worked at the
Bureau of Fire Protection (BFP) whereat respondent was the Chief Legal Officer while she was the Chief Nurse of the
Medical, Dental and Nursing Services. Complainant claimed that, sometime in 1998, she approached respondent for
some legal advice. Complainant further alleged that, in the course of their conversation which was supposed to be kept
confidential, she disclosed personal secrets and produced copies of a marriage contract, a birth certificate and a
baptismal certificate, only to be informed later by the respondent that she (respondent) would refer the matter to a
lawyer friend. It was malicious, so complainant states, of respondent to have refused handling her case only after she
had already heard her secrets.

Continuing, complainant averred that her friendship with respondent soured after her filing, in the later part of 2000, of criminal
and disciplinary actions against the latter. What, per complainant's account, precipitated the filing was when respondent, then a
member of the BFP promotion board, demanded a cellular phone in exchange for the complainant's promotion.

According to complainant, respondent, in retaliation to the filing of the aforesaid actions, filed a COUNTER
COMPLAINT3 with the Ombudsman charging her (complainant) with violation of Section 3(a) of Republic Act No.
3019,4 falsification of public documents and immorality, the last two charges being based on the disclosures
complainant earlier made to respondent. And also on the basis of the same disclosures, complainant further stated, a
disciplinary case was also instituted against her before the Professional Regulation Commission.

Complainant seeks the suspension and/or disbarment of respondent for the latter's act of disclosing personal secrets and
confidential information she revealed in the course of seeking respondent's legal advice.

In an order dated October 2, 2002, the IBP Commission on Bar Discipline required respondent to file her answer to the complaint.

In her answer, styled as COUNTER-AFFIDAVIT,5 respondent denied giving legal advice to the complainant and
dismissed any suggestion about the existence of a lawyer-client relationship between them. Respondent also stated the
observation that the supposed confidential data and sensitive documents adverted to are in fact matters of common
knowledge in the BFP. The relevant portions of the answer read:
5. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in paragraph 4 of her AFFIDAVIT-
COMPLAINT for reason that she never WAS MY CLIENT nor we ever had any LAWYER-CLIENT RELATIONSHIP
that ever existed ever since and that never obtained any legal advice from me regarding her PERSONAL PROBLEMS
or PERSONAL SECRETS. She likewise never delivered to me legal documents much more told me some confidential
information or secrets. That is because I never entertain LEGAL QUERIES or CONSULTATION regarding
PERSONAL MATTERS since I know as a LAWYER of the Bureau of Fire Protection that I am not allowed to
privately practice law and it might also result to CONFLICT OF INTEREST. As a matter of fact, whenever there will
be PERSONAL MATTERS referred to me, I just referred them to private law practitioners and never entertain the
same, NOR listen to their stories or examine or accept any document.

9. I specifically deny the allegation of F/SUPT. MA. LUISA C. HADJULA in paragraph 8 of her AFFIDAVIT-
COMPLAINT, the truth of the matter is that her ILLICIT RELATIONSHIP and her illegal and unlawful activities are
known in the Bureau of Fire Protection since she also filed CHILD SUPPORT case against her lover where she has
a child .

Moreover, the alleged DOCUMENTS she purportedly have shown to me sometime in 1998, are all part of public
records .

Furthermore, F/SUPT. MA. LUISA C. HADJULA, is filing the instant case just to get even with me or to force me to
settle and withdraw the CASES I FILED AGAINST HER since she knows that she will certainly be DISMISSED
FROM SERVICE, REMOVED FROM THE PRC ROLL and CRIMINALLY CONVICTED of her ILLICIT,
IMMORAL, ILLEGAL and UNLAWFUL ACTS.

On October 7, 2004, the Investigating Commissioner of the IBP Commission on Bar Discipline came out with a Report
and Recommendation, stating that the information related by complainant to the respondent is "protected under the
attorney-client privilege communication." Prescinding from this postulate, the Investigating Commissioner found the
respondent to have violated legal ethics when she "[revealed] information given to her during a legal consultation," and
accordingly recommended that respondent be reprimanded therefor, thus:
WHEREFORE, premises considered, it is respectfully recommended that respondent Atty. Roceles Madianda be
reprimanded for revealing the secrets of the complainant.
On November 4, 2004, the IBP Board of Governors issued Resolution No. XVI-2004-472 reading as follows:
RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation
of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex "A"; and ,
finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and
considering the actuation of revealing information given to respondent during a legal consultation, Atty. Roceles
Madianda is hereby REPRIMANDED.

We AGREE with the recommendation and the premises holding it together.

As it were, complainant went to respondent, a lawyer who incidentally was also then a friend, to bare what she
considered personal secrets and sensitive documents for the purpose of obtaining legal advice and assistance. The
moment complainant approached the then receptive respondent to seek legal advice, a veritable lawyer-client
relationship evolved between the two. Such relationship imposes upon the lawyer certain restrictions circumscribed by
the ethics of the profession. Among the burdens of the relationship is that which enjoins the lawyer, respondent in this
instance, to keep inviolate confidential information acquired or revealed during legal consultations. The fact that one is,
at the end of the day, not inclined to handle the client's case is hardly of consequence. Of little moment, too, is the fact
that no formal professional engagement follows the consultation. Nor will it make any difference that no contract
whatsoever was executed by the parties to memorialize the relationship. As we said in Burbe v. Magulta,6

A lawyer-client relationship was established from the very first moment complainant asked respondent for legal advise
regarding the former's business. To constitute professional employment, it is not essential that the client employed the
attorney professionally on any previous occasion.

It is not necessary that any retainer be paid, promised, or charged; neither is it material that the attorney consulted did
not afterward handle the case for which his service had been sought.

It a person, in respect to business affairs or troubles of any kind, consults a lawyer with a view to obtaining
professional advice or assistance, and the attorney voluntarily permits or acquiesces with the consultation, then the
professional employments is established.

Likewise, a lawyer-client relationship exists notwithstanding the close personal relationship between the lawyer and the
complainant or the non-payment of the former's fees.

Dean Wigmore lists the essential factors to establish the existence of the attorney-client privilege communication, viz:
(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the
communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently
protected (7) from disclosure by himself or by the legal advisor, (8) except the protection be waived. 7

With the view we take of this case, respondent indeed breached his duty of preserving the confidence of a client. As
found by the IBP Investigating Commissioner, the documents shown and the information revealed in confidence to the
respondent in the course of the legal consultation in question, were used as bases in the criminal and administrative
complaints lodged against the complainant.

The purpose of the rule of confidentiality is actually to protect the client from possible breach of confidence as a result
of a consultation with a lawyer.

The seriousness of the respondent's offense notwithstanding, the Court feels that there is room for compassion, absent
compelling evidence that the respondent acted with ill-will. Without meaning to condone the error of respondent's
ways, what at bottom is before the Court is two former friends becoming bitter enemies and filing charges and counter-
charges against each other using whatever convenient tools and data were readily available. Unfortunately, the personal
information respondent gathered from her conversation with complainant became handy in her quest to even the score.
At the end of the day, it appears clear to us that respondent was actuated by the urge to retaliate without perhaps
realizing that, in the process of giving vent to a negative sentiment, she was violating the rule on confidentiality.

IN VIEW WHEREOF, respondent Atty. Roceles F. Madianda is hereby REPRIMANDED and admonished to be
circumspect in her handling of information acquired as a result of a lawyer-client relationship. She is also STERNLY
WARNED against a repetition of the same or similar act complained of.
SO ORDERED.
-Canons: 2, 2.01, 2.02, 15.08, 19.02
-Canons 14, 15, 15.04, 15.05, 15.07
-duty of confidentiality
-Canons: 15.02, 17, 21, 21.01
-Rules of Court, Rule 130, section 24; Rule 138 Sec. 20(e)
Rule 130, Section 24. Disqualification by reason of privileged communication. The following persons cannot testify
as to matters learned in confidence in the following cases:
(a) The husband or the wife, during or after the marriage, cannot be examined without the consent of the other as to any
communication received in confidence by one from the other during the marriage except in a civil case by one against the
other, or in a criminal case for a crime committed by one against the other or the latter's direct descendants or ascendants;
(b) An attorney cannot, without the consent of his client, be examined as to any communication made by the client to
him, or his advice given thereon in the course of, or with a view to, professional employment, nor can an attorney's
secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact
the knowledge of which has been acquired in such capacity;
(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the
patient, be examined as to any advice or treatment given by him or any information which he may have acquired in
attending such patient in a professional capacity, which information was necessary to enable him to act in capacity, and
which would blacken the reputation of the patient;
(d) A minister or priest cannot, without the consent of the person making the confession, be examined as to any
confession made to or any advice given by him in his professional character in the course of discipline enjoined by the
church to which the minister or priest belongs;
e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in
official confidence, when the court finds that the public interest would suffer by the disclosure. (21a)

Section 20. Duties of attorneys. It is the duty of an attorney:


(e) To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept
no compensation in connection with his client's business except from him or with his knowledge and approval;

-Revised Penal Code, Art. 209

Chapter Two
MALFEASANCE AND MISFEASANCE IN OFFICE
Section One. Dereliction of duty
Art. 209. Betrayal of trust by an attorney or solicitor. Revelation of secrets. In addition to the proper
administrative action, the penalty of prision correccional in its minimum period, or a fine ranging from 200 to 1,000
pesos, or both, shall be imposed upon any attorney-at-law or solicitor ( procurador judicial) who, by any malicious
breach of professional duty or of inexcusable negligence or ignorance, shall prejudice his client, or reveal any of the
secrets of the latter learned by him in his professional capacity.
The same penalty shall be imposed upon an attorney-at-law or solicitor (procurador judicial) who, having undertaken
the defense of a client or having received confidential information from said client in a case, shall undertake the
defense of the opposing party in the same case, without the consent of his first client.
-Rules on electronic Evidence

A.M. No. 01-7-01-SC July 17, 2001


RULES ON ELECTRONIC EVIDENCE
Acting on the Memorandum dated 18 June 2001 of the Committee on the Revision of the Rules of Court to Draft the
Rules on E-Commerce Law [R.A. No. 8792] submitting the Rules on Electronic Evidence for this Court's consideration
and approval, the Court Resolved to APPROVED the same.

The Rules on Electronic Evidence shall apply to cases pending after their effectivity. These Rules shall take effect on
the first day of August 2001 following thier publication before the 20th of July in two newspapers of general
circulation in the Philippines 17th July 2001.

RULES ON ELECTRONIC EVIDENCE


Rule 1 COVERAGE
Section 1. Scope. Unless otherwise provided herein, these Rules shall apply whenever an electronic document or
electronic data message, as defined in Rule 2 hereof, is offered or used in evidence.
Section 2. Cases covered. These Rules shall apply to all civil actions and proceedings, as well as quasi-judicial and
administrative cases.
Section 3. Application of other rules on evidence. In all matters not specifically covered by these Rules, the Rules of
Court and pertinent provisions of statutes containing rules on evidence shall apply.

Rule 2 DEFINITION OF TERMS AND CONSTRUCTION


Section 1. Definition of terms. For purposes of these Rules, the following terms are defined, as follows:
(a) "Asymmetric or public cryptosystem" means a system capable of generating a secure key pair, consisting of a
private key for creating a digital signature, and a public key for verifying the digital signature.
(b) "Business records" include records of any business, institution, association, profession, occupation, and calling of
every kind, whether or not conducted for profit, or for legitimate or illegitimate purposes.
(c) "Certificate" means an electronic document issued to support a digital signature which purports to confirm the
identity or other significant characteristics of the person who holds a particular key pair.
(d) "Computer" refers to any single or interconnected device or apparatus, which, by electronic, electro-mechanical or
magnetic impulse, or by other means with the same function, can receive, record, transmit, store, process, correlate,
analyze, project, retrieve and/or produce information, data, text, graphics, figures, voice, video, symbols or other
modes of expression or perform any one or more of these functions.
(e) "Digital signature" refers to an electronic signature consisting of a transformation of an electronic document or an
electronic data message using an asymmetric or public cryptosystem such that a person having the initial
untransformed electronic document and the signer's public key can accurately determine:
i. whether the transformation was created using the private key that corresponds to the signer's public key; and
ii. whether the initial electronic document had been altered after the transformation was made.
(f) "Digitally signed" refers to an electronic document or electronic data message bearing a digital signature verified by
the public key listed in a certificate.
(g) "Electronic data message" refers to information generated, sent, received or stored by electronic, optical or similar means.
(h) "Electronic document" refers to information or the representation of information, data, figures, symbols or other
modes of written expression, described or however represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored,
processed, retrieved or produced electronically. It includes digitally signed documents and any print-out or output,
readable by sight or other means, which accurately reflects the electronic data message or electronic document. For
purposes of these Rules, the term "electronic document" may be used interchangeably with "electronic data message".
(i) "Electronic key" refers to a secret code which secures and defends sensitive information that crosses over public
channels into a form decipherable only with a matching electronic key.
(j) "Electronic signature" refers to any distinctive mark, characteristic and/or sound in electronic form, representing the
identity of a person and attached to or logically associated with the electronic data message or electronic document or
any methodology or procedure employed or adopted by a person and executed or adopted by such person with the
intention of authenticating, signing or approving an electronic data message or electronic document. For purposes of
these Rules, an electronic signature includes digital signatures.
(k) "Ephemeral electronic communication" refers to telephone conversations, text messages, chatroom sessions, streaming
audio, streaming video, and other electronic forms of communication the evidence of which is not recorded or retained.
(l) "Information and communication system" refers to a system for generating, sending, receiving, storing or otherwise
processing electronic data messages or electronic documents and includes the computer system or other similar devices
by or in which data are recorded or stored and any procedure related to the recording or storage of electronic data
messages or electronic documents.
(m) "Key pair" in an asymmetric cryptosystem refers to the private key and its mathematically related public key such
that the latter can verify the digital signature that the former creates.
(n) "Private key" refers to the key of a key pair used to create a digital signature.
(o) "Public key" refers to the key of a key pair used to verify a digital signature.
Section 2. Construction. These Rules shall be liberally construed to assist the parties in obtaining a just, expeditious,
and inexpensive determination of cases.
The interpretation of these Rules shall also take into consideration the international origin of Republic Act No. 8792,
otherwise known as the Electronic Commerce Act.

Rule 3 ELECTRONIC DOCUMENTS


Section 1. Electronic documents as functional equivalent of paper-based documents. Whenever a rule of evidence
refers to the term writing, document, record, instrument, memorandum or any other form of writing, such term shall be
deemed to include an electronic document as defined in these Rules.
Section 2. Admissibility. An electronic document is admissible in evidence if it complies with the rules on admissibility
prescribed by the Rules of Court and related laws and is authenticated in the manner prescribed by these Rules.
Section 3. Privileged communication. The confidential character of a privileged communication is not lost solely on
the ground that it is in the form of an electronic document.

Rule 4 BEST EVIDENCE RULE


Section 1. Original of an electronic document. An electronic document shall be regarded as the equivalent of an
original document under the Best Evidence Rule if it is a printout or output readable by sight or other means, shown to
reflect the data accurately.
Section 2. Copies as equivalent of the originals. When a document is in two or more copies executed at or about the
same time with identical contents, or is a counterpart produced by the same impression as the original, or from the
same matrix, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques
which accurately reproduces the original, such copies or duplicates shall be regarded as the equivalent of the original.
Notwithstanding the foregoing, copies or duplicates shall not be admissible to the same extent as the original if:
(a) a genuine question is raised as to the authenticity of the original; or
(b) in the circumstances it would be unjust or inequitable to admit the copy in lieu of the original.

Rule 5 AUTHENTICATION OF ELECTRONIC DOCUMENTS


Section 1. Burden of proving authenticity. The person seeking to introduce an electronic document in any legal
proceeding has the burden of proving its authenticity in the manner provided in this Rule.
Section 2. Manner of authentication. Before any private electronic document offered as authentic is received in
evidence, its authenticity must be proved by any of the following means:
(a) by evidence that it had been digitally signed by the person purported to have signed the same;
(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by
law for authentication of electronic documents were applied to the document; or
(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.
Section 3. Proof of electronically notarized document. A document electronically notarized in accordance with the
rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document
under the Rules of Court.
Rule 6 ELECTRONIC SIGNATURES
Section 1. Electronic signature. An electronic signature or a digital signature authenticated in the manner prescribed
hereunder is admissible in evidence as the functional equivalent of the signature of a person on a written document.
Section 2. Authentication of electronic signatures. An electronic signature may be authenticated in any of the
following manner:
(a) By evidence that a method or process was utilized to establish a digital signature and verify the same;
(b) By any other means provided by law; or
(c) By any other means satisfactory to the judge as establishing the genuineness of the electronic signature.
Section 3. Disputable presumptions relating to electronic signatures. Upon the authentication of an electronic
signature, it shall be presumed that:
(a) The electronic signature is that of the person to whom it correlates;
(b) The electronic signature was affixed by that person with the intention of authenticating or approving the electronic
document to which it is related or to indicate such person's consent to the transaction embodied therein; and
(c) The methods or processes utilized to affix or verify the electronic signature operated without error or fault.
Section 4. Disputable presumptions relating to digital signatures. Upon the authentication of a digital signature, it
shall be presumed, in addition to those mentioned in the immediately preceding section, that:
(a) The information contained in a certificate is correct;
(b) The digital signature was created during the operational period of a certificate;
(c) No cause exists to render a certificate invalid or revocable;
(d) The message associated with a digital signature has not been altered from the time it was signed; and,
(e) A certificate had been issued by the certification authority indicated therein.

Rule 7 EVIDENTIARY WEIGHT OF ELECTRONIC DOCUMENTS


Section 1. Factors for assessing evidentiary weight. In assessing the evidentiary weight of an electronic document,
the following factors may be considered:
(a) The reliability of the manner or method in which it was generated, stored or communicated, including but not
limited to input and output procedures, controls, tests and checks for accuracy and reliability of the electronic data
message or document, in the light of all the circumstances as well as any relevant agreement;
(b) The reliability of the manner in which its originator was identified;
(c) The integrity of the information and communication system in which it is recorded or stored, including but not
limited to the hardware and computer programs or software used as well as programming errors;
(d) The familiarity of the witness or the person who made the entry with the communication and information system;
(e) The nature and quality of the information which went into the communication and information system upon which
the electronic data message or electronic document was based; or
(f) Other factors which the court may consider as affecting the accuracy or integrity of the electronic document or
electronic data message.
Section 2. Integrity of an information and communication system. In any dispute involving the integrity of the
information and communication system in which an electronic document or electronic data message is recorded or
stored, the court may consider, among others, the following factors:
(a) Whether the information and communication system or other similar device was operated in a manner that did not
affect the integrity of the electronic document, and there are no other reasonable grounds to doubt the integrity of the
information and communication system;
(b) Whether the electronic document was recorded or stored by a party to the proceedings with interest adverse to that
of the party using it; or
(c) Whether the electronic document was recorded or stored in the usual and ordinary course of business by a person
who is not a party to the proceedings and who did not act under the control of the party using it.

Rule 8 BUSINESS RECORDS AS EXCEPTION TO THE HEARSAY RULE


Section 1. Inapplicability of the hearsay rule. A memorandum, report, record or data compilation of acts, events,
conditions, opinions, or diagnoses, made by electronic, optical or other similar means at or near the time of or from
transmission or supply of information by a person with knowledge thereof, and kept in the regular course or conduct of
a business activity, and such was the regular practice to make the memorandum, report, record, or data compilation by
electronic, optical or similar means, all of which are shown by the testimony of the custodian or other qualified
witnesses, is excepted from the rule on hearsay evidence.
Section 2. Overcoming the presumption. The presumption provided for in Section 1 of this Rule may be overcome by
evidence of the untrustworthiness of the source of information or the method or circumstances of the preparation,
transmission or storage thereof.
Rule 9 METHOD OF PROOF
Section 1. Affidavit evidence. All matters relating to the admissibility and evidentiary weight of an electronic
document may be established by an affidavit stating facts of direct personal knowledge of the affiant or based on
authentic records. The affidavit must affirmatively show the competence of the affiant to testify on the matters
contained therein.
Section 2. Cross-examination of deponent. The affiant shall be made to affirm the contents of the affidavit in open
court and may be cross-examined as a matter of right by the adverse party.

Rule 10 EXAMINATION OF WITNESSES


Section 1. Electronic testimony. After summarily hearing the parties pursuant to Rule 9 of these Rules, the court may
authorize the presentation of testimonial evidence by electronic means. Before so authorizing, the court shall determine
the necessity for such presentation and prescribe terms and conditions as may be necessary under the circumstances,
including the protection of the rights of the parties and witnesses concerned.
Section 2. Transcript of electronic testimony. When examination of a witness is done electronically, the entire
proceedings, including the questions and answers, shall be transcribed by a stenographer, stenotypist or other recorder
authorized for the purpose, who shall certify as correct the transcript done by him. The transcript should reflect the fact
that the proceedings, either in whole or in part, had been electronically recorded.
Section 3. Storage of electronic evidence. The electronic evidence and recording thereof as well as the stenographic
notes shall form part of the record of the case. Such transcript and recording shall be deemed prima facie evidence of
such proceedings.

Rule 11AUDIO, PHOTOGRAPHIC, VIDEO, AND EPHEMERAL EVIDENCE


Section 1. Audio, video and similar evidence. Audio, photographic and video evidence of events, acts or transactions
shall be admissible provided it shall be shown, presented or displayed to the court and shall be identified, explained or
authenticated by the person who made the recording or by some other person competent to testify on the accuracy thereof.
Section 2. Ephemeral electronic communications. Ephemeral electronic communications shall be proven by the
testimony of a person who was a party to the same or has personal knowledge thereof. In the absence or unavailability
of such witnesses, other competent evidence may be admitted.
A recording of the telephone conversation or ephemeral electronic communication shall be covered by the immediately
preceding section.
If the foregoing communications are recorded or embodied in an electronic document, then the provisions of Rule 5
shall apply.
-Art. 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. (83a)

-REPUBLIC OF THE PHILIPPINES THE HONORABLE COURT OF APPEALS (TENTH DIVISION) and
ALAN B. ALEGRO, G.R. No. 159614, December 9, 2005

G.R. No. 159614 December 9, 2005


REPUBLIC OF THE PHILIPPINES, Petitioner, vs.
THE HONORABLE COURT OF APPEALS (TENTH DIVISION), and ALAN B. ALEGRO, Respondents.
On March 29, 2001, Alan B. Alegro filed a petition in the Regional Trial Court (RTC) of Catbalogan, Samar, Branch
27, for the declaration of presumptive death of his wife, Rosalia (Lea) A. Julaton.
In an Order1 dated April 16, 2001, the court set the petition for hearing on May 30, 2001 at 8:30 a.m. and directed that a
copy of the said order be published once a week for three (3) consecutive weeks in the Samar Reporter, a newspaper of
general circulation in the Province of Samar, and that a copy be posted in the courts bulletin board for at least three
weeks before the next scheduled hearing. The court also directed that copies of the order be served on the Solicitor
General, the Provincial Prosecutor of Samar, and Alan, through counsel, and that copies be sent to Lea by registered
mail. Alan complied with all the foregoing jurisdictional requirements. 2
On May 28, 2001, the Republic of the Philippines, through the Office of the Solicitor General (OSG), filed a Motion to
Dismiss3 the petition, which was, however, denied by the court for failure to comply with Rule 15 of the Rules of Court. 4
At the hearing, Alan adduced evidence that he and Lea were married on January 20, 1995 in Catbalogan, Samar. 5He
testified that, on February 6, 1995, Lea arrived home late in the evening and he berated her for being always out of
their house. He told her that if she enjoyed the life of a single person, it would be better for her to go back to her
parents.6 Lea did not reply. Alan narrated that, when he reported for work the following day, Lea was still in the house,
but when he arrived home later in the day, Lea was nowhere to be found. 7 Alan thought that Lea merely went to her
parents house in Bliss, Sto. Nio, Catbalogan, Samar.8 However, Lea did not return to their house anymore.
Alan further testified that, on February 14, 1995, after his work, he went to the house of Leas parents to see if she was
there, but he was told that she was not there. He also went to the house of Leas friend, Janeth Bautista,
at Barangay Canlapwas, but he was informed by Janettes brother-in-law, Nelson Abaenza, that Janeth had left for
Manila.9 When Alan went back to the house of his parents-in-law, he learned from his father-in-law that Lea had been
to their house but that she left without notice. 10 Alan sought the help of Barangay Captain Juan Magat, who promised
to help him locate his wife. He also inquired from his friends of Leas whereabouts but to no avail. 11
Sometime in June 1995, he decided to go to Manila to look for Lea, but his mother asked him to leave after the town
fiesta of Catbalogan, hoping that Lea may come home for the fiesta. Alan agreed. 12 However, Lea did not show up.
Alan then left for Manila on August 27, 1995. He went to a house in Navotas where Janeth, Leas friend, was staying.
When asked where Lea was, Janeth told him that she had not seen her. 13 He failed to find out Leas whereabouts despite
his repeated talks with Janeth. Alan decided to work as a part-time taxi driver. On his free time, he would look for Lea
in the malls but still to no avail. He returned to Catbalogan in 1997 and again looked for his wife but failed. 14
On June 20, 2001, Alan reported Leas disappearance to the local police station. 15 The police authorities issued an
Alarm Notice on July 4, 2001.16 Alan also reported Leas disappearance to the National Bureau of Investigation (NBI)
on July 9, 2001.17
Barangay Captain Juan Magat corroborated the testimony of Alan. He declared that on February 14, 1995, at 2:00 p.m.,
Alan inquired from him if Lea passed by his house and he told Alan that she did not. Alan also told him that Lea had
disappeared. He had not seen Lea in the barangay ever since.18 Leas father, who was his compadre and the owner of
Radio DYMS, told him that he did not know where Lea was.19
After Alan rested his case, neither the Office of the Provincial Prosecutor nor the Solicitor General adduced evidence in
opposition to the petition.
On January 8, 2002, the court rendered judgment granting the petition. The fallo of the decision reads:
WHEREFORE, and in view of all the foregoing, petitioners absent spouse ROSALIA JULATON is hereby declared
PRESUMPTIVELY DEAD for the purpose of the petitioners subsequent marriage under Article 41 of the Family
Code of the Philippines, without prejudice to the effect of reappearance of the said absent spouse.
SO ORDERED.20
The OSG appealed the decision to the Court of Appeals (CA) which rendered judgment on August 4, 2003, affirming
the decision of the RTC.21 The CA cited the ruling of this Court in Republic v. Nolasco.22
The OSG filed a petition for review on certiorari of the CAs decision alleging that respondent Alan B. Alegro failed to prove that
he had a well-founded belief that Lea was already dead. 23 It averred that the respondent failed to exercise reasonable and diligent
efforts to locate his wife. The respondent even admitted that Leas father told him on February 14, 1995 that Lea had been to their
house but left without notice. The OSG pointed out that the respondent reported his wifes disappearance to the local police and
also to the NBI only after the petitioner filed a motion to dismiss the petition. The petitioner avers that, as gleaned from the
evidence, the respondent did not really want to find and locate Lea. Finally, the petitioner averred:
In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration of presumptive
death of ones spouse, the degree of due diligence set by this Honorable Court in the above-mentioned cases in locating
the whereabouts of a missing spouse must be strictly complied with. There have been times when Article 41 of the
Family Code had been resorted to by parties wishing to remarry knowing fully well that their alleged missing spouses are
alive and well. It is even possible that those who cannot have their marriages x x x declared null and void under Article 36 of
the Family Code resort to Article 41 of the Family Code for relief because of the x x x summary nature of its proceedings.
It is the policy of the State to protect and strengthen the family as a basic social institution. Marriage is the foundation
of the family. Since marriage is an inviolable social institution that the 1987 Constitution seeks to protect from
dissolution at the whim of the parties. For respondents failure to prove that he had a well-founded belief that his wife
is already dead and that he exerted the required amount of diligence in searching for his missing wife, the petition for
declaration of presumptive death should have been denied by the trial court and the Honorable Court of Appeals. 24
The petition is meritorious.
Article 41 of the Family Code of the Philippines reads:
Art. 41. A marriage contracted by any person during the 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 had a well-founded belief that the absent spouse was already dead. In case of
disappearance where there is danger 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. 25
The spouse present is, thus, burdened to prove that his spouse has been absent and that he has a well-founded belief
that the absent spouse is already dead before the present spouse may contract a subsequent marriage. The law does not
define what is meant by a well-grounded belief. Cuello Callon writes that "es menester que su creencia sea firme se
funde en motivos racionales."26
Belief is a state of the mind or condition prompting the doing of an overt act. It may be proved by direct evidence or
circumstantial evidence which may tend, even in a slight degree, to elucidate the inquiry or assist to a determination
probably founded in truth. Any fact or circumstance relating to the character, habits, conditions, attachments, prosperity
and objects of life which usually control the conduct of men, and are the motives of their actions, was, so far as it tends
to explain or characterize their disappearance or throw light on their intentions, 27 competence evidence on the ultimate
question of his death.
The belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to ascertain
the whereabouts of the absent spouse and whether the absent spouse is still alive or is already 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 present spouse. 28
Although testimonial evidence may suffice to prove the well-founded belief of the present spouse that the absent
spouse is already dead, in Republic v. Nolasco,29 the Court warned against collusion between the parties when they find
it impossible to dissolve the marital bonds through existing legal means. It is also the maxim that "men readily believe
what they wish to be true."
In this case, the respondent failed to present a witness other than Barangay Captain Juan Magat. The respondent even
failed to present Janeth Bautista or Nelson Abaenza or any other person from whom he allegedly made inquiries about
Lea to corroborate his testimony. On the other hand, the respondent admitted that when he returned to the house of his
parents-in-law on February 14, 1995, his father-in-law told him that Lea had just been there but that she left without notice.
The respondent declared that Lea left their abode on February 7, 1995 after he chided her for coming home late and for being
always out of their house, and told her that it would be better for her to go home to her parents if she enjoyed the life of a
single person. Lea, thus, left their conjugal abode and never returned. Neither did she communicate with the respondent after
leaving the conjugal abode because of her resentment to the chastisement she received from him barely a month after their
marriage. What is so worrisome is that, the respondent failed to make inquiries from his parents-in-law regarding Leas
whereabouts before filing his petition in the RTC. It could have enhanced the credibility of the respondent had he made
inquiries from his parents-in-law about Leas whereabouts considering that Leas father was the owner of Radio DYMS.
The respondent did report and seek the help of the local police authorities and the NBI to locate Lea, but it was only an
afterthought. He did so only after the OSG filed its notice to dismiss his petition in the RTC.
In sum, the Court finds and so holds that the respondent failed to prove that he had a well-founded belief, before he
filed his petition in the RTC, that his spouse Rosalia (Lea) Julaton was already dead.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R.
CV No. 73749 is REVERSED and SET ASIDE. Consequently, the Regional Trial Court of Catbalogan, Samar, Branch
27, is ORDERED to DISMISS the respondents petition.
SO ORDERED.
- REPUBLIC OF THE PHILIPPINES vs. MARIA FE ESPINOSA CANTOR, G.R. No. 184621
December 10, 2013
The Factual Antecedents
The respondent and Jerry were married on September 20, 1997. They lived together as husband and wife in their
conjugal dwelling in Agan Homes, Koronadal City, South Cotabato. Sometime in January 1998, the couple had a
violent quarrel brought about by: (1) the respondents inability to reach "sexual climax" whenever she and Jerry would
have intimate moments; and (2) Jerrys expression of animosity toward the respondents father.
After their quarrel, Jerry left their conjugal dwelling and this was the last time that the respondent ever saw him. Since
then, she had not seen, communicated nor heard anything from Jerry or about his whereabouts.
On May 21, 2002, or more than four (4) years from the time of Jerrys disappearance, the respondent filed before the
RTC a petition4for her husbands declaration of presumptive death, docketed as SP Proc. Case No. 313-25. She
claimed that she had a well-founded belief that Jerry was already dead. She alleged that she had inquired from her
mother-in-law, her brothers-in-law, her sisters-in-law, as well as her neighbors and friends, but to no avail. In the hopes
of finding Jerry, she also allegedly made it a point to check the patients directory whenever she went to a hospital. All
these earnest efforts, the respondent claimed, proved futile, prompting her to file the petition in court.
The Ruling of the RTC
After due proceedings, the RTC issued an order granting the respondents petition and declaring Jerry presumptively
dead. It concluded that the respondent had a well-founded belief that her husband was already dead since more than
four (4) years had passed without the former receiving any news about the latter or his whereabouts. The dispositive
portion of the order dated December 15, 2006 reads:
WHEREFORE, the Court hereby declares, as it hereby declared that respondent Jerry F. Cantor is presumptively dead
pursuant to Article 41 of the Family Code of the Philippines without prejudice to the effect of the reappearance of the
absent spouse Jerry F. Cantor.5
The Ruling of the CA
The case reached the CA through a petition for certiorari6filed by the petitioner, Republic of the Philippines, through
the Office of the Solicitor General (OSG). In its August 27, 2008 decision, the CA dismissed the petitioners petition,
finding no grave abuse of discretion on the RTCs part, and, accordingly, fully affirmed the latters order, thus:
WHEREFORE, premises foregoing (sic), the instant petition is hereby DISMISSED and the assailed Order dated
December 15, 2006 declaring Jerry F. Cantor presumptively dead is hereby AFFIRMED in toto. 7
The petitioner brought the matter via a Rule 45 petition before this Court. The Petition The petitioner contends that
certiorari lies to challenge the decisions, judgments or final orders of trial courts in petitions for declaration of
presumptive death of an absent spouse under Rule 41 of the Family Code. It maintains that although judgments of trial
courts in summary judicial proceedings, including presumptive death cases, are deemed immediately final and
executory (hence, not appeal able under Article 247 of the Family Code), this rule does not mean that they are not
subject to review on certiorari.
The petitioner also posits that the respondent did not have a well-founded belief to justify the declaration of her
husbands presumptive death. It claims that the respondent failed to conduct the requisite diligent search for her
missing husband. Likewise, the petitioner invites this Courts attention to the attendant circumstances surrounding the
case, particularly, the degree of search conducted and the respondents resultant failure to meet the strict standard under
Article 41 of the Family Code.
The Issues
The petition poses to us the following issues:
(1) Whether certiorarilies to challenge the decisions, judgments or final orders of trial courts in petitions for declaration
of presumptive death of an absent spouse under Article 41 of the Family Code; and
(2) Whether the respondent had a well-founded belief that Jerry is already dead.
The Courts Ruling We grant the petition.
a. On the Issue of the Propriety of Certiorari as a Remedy - Courts Judgment in the Judicial
Proceedings for Declaration of Presumptive Death Is Final and Executory, Hence, Unappealable
The Family Code was explicit that the courts judgment in summary proceedings, such as the declaration of
presumptive death of an absent spouse under Article 41 of the Family Code, shall be immediately final and executory.
Article 41,in relation to Article 247, of the Family Code provides:
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.
Art. 247. The judgment of the court shall be immediately final and executory. [underscores ours]
With the judgment being final, it necessarily follows that it is no longer subject to an appeal, the dispositions and
conclusions therein having become immutable and unalterable not only as against the parties but even as against the
courts.8 Modification of the courts ruling, no matter how erroneous is no longer permissible. The final and executory
nature of this summary proceeding thus prohibits the resort to appeal. As explained in Republic of the Phils. v.
Bermudez-Lorino,9 the right to appeal is not granted to parties because of the express mandate of Article 247 of the
Family Code, to wit:
In Summary Judicial Proceedings under the Family Code, there is no reglementary period within which to perfect an
appeal, precisely because judgments rendered thereunder, by express provision of [Article] 247, Family Code, supra,
are "immediately final and executory." It was erroneous, therefore, on the part of the RTCto give due course to the
Republics appeal and order the transmittal of the entire records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a judgment which, by express provision of law, is immediately
final and executory. As we have said in Veloria vs. Comelec, "the right to appeal is not a natural right nor is it a part of
due process, for it is merely a statutory privilege." Since, by express mandate of Article 247 of the Family Code, all
judgments rendered in summary judicial proceedings in Family Law are "immediately final and executory," the right to
appeal was not granted to any of the parties therein. The Republic of the Philippines, as oppositor in the petition for
declaration of presumptive death, should not be treated differently. It had no right to appeal the RTC decision of
November 7, 2001. [emphases ours; italics supplied]
Certiorari Lies to Challenge the Decisions, Judgments or Final Orders of Trial Courts in a Summary Proceeding for
the Declaration of Presumptive Death Under the Family Code
A losing party in this proceeding, however, is not entirely left without a remedy. While jurisprudence tells us that no
appeal can be made from the trial court's judgment, an aggrieved party may, nevertheless, file a petition for certiorari under
Rule 65 of the Rules of Court to question any abuse of discretion amounting to lack or excess of jurisdiction that transpired.
As held in Delos Santos v. Rodriguez, et al.,10 the fact that a decision has become final does not automatically negate
the original action of the CA to issue certiorari, prohibition and mandamus in connection with orders or processes
issued by the trial court. Certiorari may be availed of where a court has acted without or in excess of jurisdiction or
with grave abuse of discretion, and where the ordinary remedy of appeal is not available. Such a procedure finds
support in the case of Republic v. Tango,11 wherein we held that:
This case presents an opportunity for us to settle the rule on appeal of judgments rendered in summary proceedings
under the Family Code and accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY LAW,
establishes the rules that govern summary court proceedings in the Family Code:
"ART. 238. Until modified by the Supreme Court, the procedural rules in this Title shall apply in all cases provided for
in this Code requiring summary court proceedings. Such cases shall be decided in an expeditious manner without
regard to technical rules."
In turn, Article 253 of the Family Code specifies the cases covered by the rules in chapters two and three of the same
title. It states:
"ART. 253. The foregoing rules in Chapters 2and 3 hereof shall likewise govern summary proceedings filed under
Articles 41, 51, 69, 73, 96, 124 and 217, insofar as they are applicable."(Emphasis supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
"ART.247. The judgment of the court shall be immediately final and executory."
By express provision of law, the judgment of the court in a summary proceeding shall be immediately final and
executory. As a matter of course, it follows that no appeal can be had of the trial court's judgment ina summary
proceeding for the declaration of presumptive death of an absent spouse under Article 41 of the Family Code. It goes
without saying, however, that an aggrieved party may file a petition for certiorari to question abuse of discretion amounting
to lack of jurisdiction. Such petition should be filed in the Court of Appeals in accordance with the Doctrine of Hierarchy of
Courts. To be sure, even if the Court's original jurisdiction to issue a writ of certiorari is concurrent with the RTCs and the
Court of Appeals in certain cases, such concurrence does not sanction an unrestricted freedom of choice of court forum.
Viewed in this light, we find that the petitioners resort to certiorari under Rule 65 of the Rules of Court to question the
RTCs order declaring Jerry presumptively dead was proper.
b. On the Issue of the Existence of Well-Founded Belief - The Essential Requisites for the
Declaration of Presumptive Death Under Article 41 of the Family Code
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 41 of the Family Code, there are four (4) essential requisites for the declaration of presumptive death:
1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance
occurred where there is danger of death under the circumstances laid down in Article 391, 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. 12

The Present Spouse Has the Burden of Proof to Show that All the Requisites Under Article 41 of the Family Code Are Present
The burden of proof rests on the present spouse to show that all the requisites under Article 41 of the Family Code are
present. 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. 13
Declaration of Presumptive Death Under Article 41 of the Family Code Imposes a Stricter Standard
Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code which it superseded, imposes
a stricter standard. It requires a "well-founded belief " that the absentee is already dead before a petition for declaration of
presumptive death can be granted. We have had occasion to make the same observation in Republic v. Nolasco,14 where we
noted the crucial differences between Article 41 of the Family Code and Article 83 of the Civil Code, to wit:
Under Article 41, the time required for the presumption to arise has been shortened to four (4) years; however, there is
need for a judicial declaration of presumptive death to enable the spouse present to remarry. Also, Article 41 of the
Family Code imposes a stricter standard than the Civil Code: Article 83 of the Civil Code merely requires either that
there be no news that such absentee is still alive; or the absentee is generally considered to be dead and believed to be
so by the spouse present, or is presumed dead under Articles 390 and 391 of the Civil Code. The Family Code, upon
the other hand, prescribes as "well founded belief" that the absentee is already dead before a petition for declaration of
presumptive death can be granted.
Thus, mere absence of the spouse (even for such period required by the law), lack of any news that such absentee is
still alive, failure to communicate or general presumption of absence under the Civil Code would not suffice. This
conclusion proceeds from the premise that Article 41 of the Family Code places upon the present spouse the burden of
proving the additional and more 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 spouses whereabouts
but, more importantly, that the absent spouse is still alive or is already dead. 15
The Requirement of Well-Founded Belief
The law did not define what is meant by "well-founded belief." It depends upon the circumstances of each particular
case. Its determination, so to speak, remains on a case-to-case basis. To be able to comply with this requirement, the
present spouse must prove that his/her belief was the result of diligent and reasonable efforts and inquiries to locate the
absent spouse and that based on these efforts and inquiries, he/she believes that under the circumstances, the absent
spouseis already dead. It requires exertion of active effort (not a mere passive one).
To illustrate this degree of "diligent and reasonable search" required by the law, an analysis of the following relevant
cases is warranted:
i. Republic of the Philippines v. Court of Appeals (Tenth Div.)16
In Republic of the Philippines v. Court of Appeals (Tenth Div.),17 the Court ruled that the present spouse failed to prove
that he had a well-founded belief that his absent spouse was already dead before he filed his petition. His efforts to
locate his absent wife allegedly consisted of the following:
(1) He went to his in-laws house to look for her;
(2) He sought the barangay captains aid to locate her;
(3) He went to her friends houses to find her and inquired about her whereabouts among his friends;
(4) He went to Manila and worked as a part-time taxi driver to look for her in malls during his free time;
(5) He went back to Catbalogan and again looked for her; and
(6) He reported her disappearance to the local police station and to the NBI.
Despite these alleged "earnest efforts," the Court still ruled against the present spouse. The Court found that he failed to
present the persons from whom he allegedly made inquiries and only reported his wifes absence after the OSG filed its
notice to dismiss his petition in the RTC.
The Court also provided the following criteria for determining the existence of a "well-founded belief" under Article 41
of the Family Code:
The belief of the present spouse must be the result of proper and honest to goodness inquiries and efforts to ascertain
the whereabouts of the absent spouse and whether the absent spouse is still alive or is already 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. 18
ii. Republic v. Granada19
Similarly in Granada, the Court ruled that the absent spouse failed to prove her "well-founded belief" that her absent
spouse was already dead prior to her filing of the petition. In this case, the present spouse alleged that her brother had
made inquiries from their relatives regarding the absent spouses whereabouts. The present spouse did not report to the
police nor seek the aid of the mass media. Applying the standards in Republic of the Philippines v. Court of Appeals
(Tenth Div.),20 the Court ruled against the present spouse, as follows:
Applying the foregoing standards to the present case, petitioner points out that respondent Yolanda did not initiate a
diligent search to locate her absent husband. While her brother Diosdado Cadacio testified to having inquiredabout the
whereabouts of Cyrus from the latters relatives, these relatives were not presented to corroborate Diosdados
testimony. In short, respondent was allegedly not diligent in her search for her husband. Petitioner argues that if she
were, she would have sought information from the Taiwanese Consular Office or assistance from other government
agencies in Taiwan or the Philippines. She could have also utilized mass media for this end, but she did not. Worse, she
failed to explain these omissions.
iii.Republic v. Nolasco21
In Nolasco, the present spouse filed a petition for declaration of presumptive death of his wife, who had been missing
for more than four years. He testified that his efforts to find her consisted of:
(1) Searching for her whenever his ship docked in England;
(2) Sending her letters which were all returned to him; and
(3) Inquiring from their friends regarding her whereabouts, which all proved fruitless. The Court ruled that the present
spouses investigations were too sketchy to form a basis that his wife was already dead and ruled that the pieces of evidence
only proved that his wife had chosen not to communicate with their common acquaintances, and not that she was dead.
iv.The present case
In the case at bar, the respondents "well-founded belief" was anchored on her alleged "earnest efforts" to locate Jerry,
which consisted of the following:
(1) She made inquiries about Jerrys whereabouts from her in-laws, neighbors and friends; and
(2) Whenever she went to a hospital, she saw to it that she looked through the patients directory, hoping to find Jerry.
These efforts, however, fell short of the "stringent standard" and degree of diligence required by jurisprudence for the
following reasons:
First, the respondent did not actively look for her missing husband. It can be inferred from the records that her hospital
visits and her consequent checking of the patients directory therein were unintentional. She did not purposely
undertake a diligent search for her husband as her hospital visits were not planned nor primarily directed to look for
him. This Court thus considers these attempts insufficient to engender a belief that her husband is dead.
Second, she did not report Jerrys absence to the police nor did she seek the aid of the authorities to look for him. While
a finding of well-founded belief varies with the nature of the situation in which the present spouse is placed, under
present conditions, we find it proper and prudent for a present spouse, whose spouse had been missing, to seek the aid
of the authorities or, at the very least, report his/her absence to the police.
Third, she did not present as witnesses Jerrys relatives or their neighbors and friends, who can corroborate her efforts
to locate Jerry. Worse, these persons, from whom she allegedly made inquiries, were not even named. As held in
Nolasco, the present spouses bare assertion that he inquired from his friends about his absent spouses whereabouts is
insufficient as the names of the friends from whom he made inquiries were not identified in the testimony nor
presented as witnesses.
Lastly, there was no other corroborative evidence to support the respondents claim that she conducted a diligent
search. Neither was there supporting evidence proving that she had a well-founded belief other than her bare claims
that she inquired from her friends and in-laws about her husbands whereabouts. In sum, the Court is of the view that
the respondent merely engaged in a "passive search" where she relied on uncorroborated inquiries from her in-laws,
neighbors and friends. She failed to conduct a diligent search because her alleged efforts are insufficient to form a well-
founded belief that her husband was already dead. As held in Republic of the Philippines v. Court of Appeals (Tenth
Div.),22 "[w]hether 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 natureand extent of the inquiries made by [the] present spouse."
Strict Standard Approach Is Consistent with the States Policy to Protect and Strengthen Marriage
In the above-cited cases, the Court, fully aware of the possible collusion of spouses in nullifying their marriage, has
consistently applied the "strictstandard" approach. This is to ensure that a petition for declaration of presumptive death
under Article 41 of the Family Code is not used as a tool to conveniently circumvent the laws. Courts should never
allow procedural shortcuts and should ensure that the stricter standard required by the Family Code is met. In Republic
of the Philippines v. Court of Appeals (Tenth Div.),23 we emphasized that:
In view of the summary nature of proceedings under Article 41 of the Family Code for the declaration of presumptive
death of ones spouse, the degree of due diligence set by this Honorable Court in the above-mentioned cases in locating
the whereabouts of a missing spouse must be strictly complied with. There have been times when Article 41 of the Family
Code had been resorted to by parties wishing to remarry knowing fully well that their alleged missing spouses are alive and
well. It is even possible that those who cannot have their marriages xxx declared null and void under Article 36 of the Family
Code resort to Article 41 of the Family Code for relief because of the xxx summary nature of its proceedings.
The application of this stricter standard becomes even more imperative if we consider the States policy to protect and
strengthen the institution of marriage. 24 Since marriage serves as the familys foundation 25 and since it is the states
policy to protect and strengthen the family as a basic social institution, 26 marriage should not be permitted to be
dissolved at the whim of the parties. In interpreting and applying Article 41, this is the underlying rationale to uphold
the sanctity of marriage. Arroyo, Jr.v. Court of Appeals27 reflected this sentiment when we stressed:
[The]protection of the basic social institutions of marriage and the family in the preservation of which the State has the
strongest interest; the public policy here involved is of the most fundamental kind. In Article II, Section 12 of the
Constitution there is set forth the following basic state policy:
The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution.
Strict Standard Prescribed Under Article 41 of the Family Code Is for the Present Spouses Benefit
The requisite judicial declaration of presumptive death of the absent spouse (and consequently, the application of a
stringent standard for its issuance) is also for the present spouse's benefit. It is intended to protect him/her from a
criminal prosecution of bigamy under Article 349 of the Revised Penal Code which might come into play if he/she
would prematurely remarry sans the court's declaration.
Upon the issuance of the decision declaring his/her absent spouse presumptively dead, the present spouse's good faith in
contracting a second marriage is effectively established. The decision of the competent court constitutes sufficient proof of
his/her good faith and his/her criminal intent in case of remarriage is effectively negated. 28 Thus, for purposes of remarriage, it is
necessary to strictly comply with the stringent standard and have the absent spouse judicially declared presumptively dead.
As a final word, it has not escaped this Court's attention that the strict standard required in petitions for declaration of
presumptive death has not been fully observed by the lower courts. We need only to cite the instances when this Court,
on review, has consistently ruled on the sanctity of marriage and reiterated that anything less than the use of the strict
standard necessitates a denial. To rectify this situation, lower courts are now expressly put on notice of the strict
standard this Court requires in cases under Article 41 of the Family Code.

WHEREFORE, in view of the foregoing, the assailed decision dated August 27, 2008 of the Court of Appeals, which
affirmed the order dated December 15, 2006 of the Regional Trial Court, Branch 25, Koronadal City, South Cotabato,
declaring Jerry F. Cantor presumptively dead is hereby REVERSED and SET ASIDE.
SO ORDERED.
-Canons 1, 1.01, 1.02
-Canons: 15.06, 15.07
Situation No. 5: Last Will and Testament and successional rights
-Civil Code, Arts. 892, 894 and 897
Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to
one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased
who had given cause for the same.
If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to
the legitime of each of the legitimate children or descendants.
In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the
testator. (834a)

Art. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary
estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of
the testator. (n)

Art. 897. When the widow or widower survives with legitimate children or descendants, and acknowledged natural
children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each
of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of. (n)

-Canons 22, 22.01, 20.04, 14.04

-contingent fee; champertous contract


A champertous contract is defined as a contract between a stranger and a party to a lawsuit, whereby the stranger
pursues the partys claim in consideration of receiving part or any of the proceeds recovered under the judgment; a
bargain by a stranger with a party to a suit, by which such third person undertakes to carry on the litigation at his own
cost and risk, in consideration of receiving, if successful, a part of the proceeds or subject sought to be recovered. The
intention of the law in prohibiting this kind of contract is to prevent a lawyer from acquiring an interest in the subject
of the litigation and to avoid a conflict of interest between him and his client.

-attorneys fees
-Canon 20.01
-Rules of Court, Rule 138, sec. 24
Rule 138, Section 24. Compensation of attorneys; agreement as to fees. An attorney shall be entitled to have and
recover from his client no more than a reasonable compensation for his services, with a view to the importance of the
subject matter of the controversy, the extent of the services rendered, and the professional standing of the attorney. No
court shall be bound by the opinion of attorneys as expert witnesses as to the proper compensation, but may disregard
such testimony and base its conclusion on its own professional knowledge. A written contract for services shall control
the amount to be paid therefor unless found by the court to be unconscionable or unreasonable.

-Canons 15, 15.05, 15.07 and 17