Article 384
Chapter 2
DECLARATION OF ABSENCE
Article 384. Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared.
Under this Article, the absence of a person may be declared under the following circumstances:
a.) Two years have elapsed without any news about the absentee;
b.) Two years have elapsed since the receipt of the last news about the absentee;
c.) Five years in case the absentee has left a person in charge of the administration of his property.
There is a distinction in the kinds of absence, as follows:
a. Absence without administrator; and
b. Absence with administrator
For the former, only two (2) years' time would be sufficient to elapse before a declaration of absence can be made. In the latter, the period is five (5) years.
The reason for the longer period of time is the greater probability that the estate or property is well taken-cared of, if a manager or administrator had been left in charge of the property.
The action to declare a person absent is vastly different from one where his presumptive death is asked for, which declaration as we have already seen, cannot be granted by the court except if there are property rights to eb resolved and adjudicated.
If a person is abroad and has communication with the family, his absence cannot be declared because there is no compliance with the requirements of Article 384 of the New Civil Code.
In Reyes vs. Alejandro, L-32026, January 16, the Supreme Court laid down certain rules on the declaration of absence of a person.
a.) The petition to declare a husband an absentee and the petition to place the management of the conjugal properties in the hands od the wife may be combined and adjudicated in the same proceedings. The purpose of this rule is to prevent multiplicity of suits.
b.) An absentee person needs to be judicially declared an absentee if he has properties which have to be taken cared of or administered by a representative appointed by the court (Article 384, NCC);
c.) The sole purpose of the filing of the petition to declare the husband absent to establish the absenc of the husband who left no property , should be dismissed because there is no need to declare hi judicially absent.
d.) For the purpose of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. the declaration of absence made in accordance with the provision of the Civil Code has for its sole purpose to enable the taking of necessary precautions for the administration of the estate of the absentee. For the celebration of the civil marriage, however, the law only requires that:
d.1. The former spouse has been absent for seven (7) consecutive years (now four(4) years under Article 41 of the Family Code) at the time of the second marriage;
d.2. That the spouse present does not know his or her former spouse to be living;
d.3. That such former spouse is generally reputed to be dead; and
d.4. That the spouse present so believes the same at the time of the celebration of the marriage.
References:
In Reyes vs. Alejandro, L-32026, January 16, the Supreme Court laid down certain rules on the declaration of absence of a person.
a.) The petition to declare a husband an absentee and the petition to place the management of the conjugal properties in the hands od the wife may be combined and adjudicated in the same proceedings. The purpose of this rule is to prevent multiplicity of suits.
b.) An absentee person needs to be judicially declared an absentee if he has properties which have to be taken cared of or administered by a representative appointed by the court (Article 384, NCC);
c.) The sole purpose of the filing of the petition to declare the husband absent to establish the absenc of the husband who left no property , should be dismissed because there is no need to declare hi judicially absent.
d.) For the purpose of the civil marriage law, it is not necessary to have the former spouse judicially declared an absentee. the declaration of absence made in accordance with the provision of the Civil Code has for its sole purpose to enable the taking of necessary precautions for the administration of the estate of the absentee. For the celebration of the civil marriage, however, the law only requires that:
d.1. The former spouse has been absent for seven (7) consecutive years (now four(4) years under Article 41 of the Family Code) at the time of the second marriage;
d.2. That the spouse present does not know his or her former spouse to be living;
d.3. That such former spouse is generally reputed to be dead; and
d.4. That the spouse present so believes the same at the time of the celebration of the marriage.
References:
Family Code of the Philippines 2017th Edition by Judge Ed Vincent S. Albano
Civil Code of the Philippines Annotated 16thEdition by Edgardo Paras
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