RULE 107 – ABSENTEES  Consequence: Presumed dead for purposes of

Jaelein Nicey A. Monteclaro opening absentee’s succession.

TWO KINDS OF PETITION THAT MAY BE FILED Section 1. Appointment of Representative

UNDER RULE 107
A petition for the appointment of an absentee’s
a) Appointment of Representative representative may be initiated by the following:
b) Declaration of Absence
1. Any interested party;
Period of absence that must first lapse before
2. Absentee’s relative; or
proceedings under Rule 107 may be commenced:
3. Absentee’s friend.
TWO YEARS
When is a petition under rule 107 proper?
 Consequence
- When the absentee left properties that
(1) Petition for appointment of representative
need to be administered by a
under Rule 107, except if the absentee left an
representative.
administrator to manage his property
Section 2. Declaration of absence; who may petition
(2) Present spouse may remarry if the
circumstances mentioned in (1) next slide are After the lapse of two (2) years from his
present. disappearance and without any news about the
absentee or since the receipt of the last news, or of five
FOUR YEARS
(5) years in case absentee has left a person in charge of
 Consequence the administration of his property, the declaration of
his absence and appointment of a trustee or
(1) Presumed dead for all purposes, including
administrator may be applied for by any of the
succession:
following:
a) Person on board a vessel lost during a sea
a) The spouse present;
voyage, or an aeroplane which is missing, who has
not been heard of for 4 years since the loss of the b) The heirs instituted in a will, who may present
vessel or aeroplane; an authentic copy of the same;

b) Person in the armed forces who has taken c) The relatives who would succeed by intestacy;
part in war, and has been missing for 4 years; and

c) Person who has been in danger of death d) Those who have over the property of the
under other circumstances and his existence has absentee some right subordinated to the
not been known for 4 years. condition of his death.

(2) Present spouse may remarry 💡 No petition for declaration of presumptive death
FIVE YEARS Lukban vs. RP
 Consequence Petitioner filed a petition to declare her husband
presumptively dead due to his absence for around 20
(1) Petition for declaration of absence under Rule
years.
107
SC: “A judicial pronouncement to that effect, even if
(2) Presumed dead for all purposes, including the
final and executory, would still be a prima facie
opening of succession, if the absentee
presumption only. It is still disputable. It is for that
disappeared after the age of 75 years old.
reason that it cannot be the subject of a judicial
SEVEN YEARS pronouncement or declaration, if it is the only
question or matter involved in a case, or upon which a
 Consequence: Presumed dead for all purposes,
competent court has to pass. It is, therefore, clear that
except for the purpose of succession
a judicial declaration that a person is presumptively
TEN YEARS dead, because he had been unheard from in 7 years,
being a presumption juris tantum only, subject to
contrary proof, cannot reach the stage of finality or 4) PUBLICATION once a week for 3 consecutive
become final.” weeks in a newspaper of general circulation
5) OPPOSITION - State the grounds in writing
General Rule
and serve a copy to the petitioner & other
There is no such thing as an independent action for interested parties on or before hearing
declaration of presumption of death. The presumption 6) HEARING
may arise and be invoked in an action or special Proof of Hearing:
proceeding. a) Petitioner must show compliance with
Sec. 4,
Exception b) Upon satisfactory proof of allegations in
For purposes of REMARRIAGE the petition, court shall issue an order
granting it & appointing a
- Under Article 41 of the Family Code, for the representative/trustee/administrator.
purpose of the present spouse contracting a
second marriage, he or she must file a - The judge shall take the necessary measures to
summary proceeding for declaration of safeguard the rights and interests of the
presumptive death of the absentee, without absentee and shall specify the powers,
prejudice to the latter’s reappearance. obligations and remuneration of his
- Intended to protect the present spouse from representative, trustee or administrator,
criminal prosecution for bigamy. regulating them by the rules concerning
guardians.
💡 Remedy against fraudulently obtained judgment - In case of declaration of absence, the same
declaring presumptive death shall not take effect until six (6) months after its
publication in a newspaper of general
Santos vs. Santos
circulation designated by the court and in the
SC: “For the purpose of not only terminating the Official Gazette.
subsequent marriage but also of nullifying the effects
Section 7. Who may be appointed
of the declaration of presumptive death and the
subsequent marriage, mere filing of an affidavit of 1. Spouse present is preferred when there is no
reappearance would not suffice. Celerina's choice to legal separation;
file an action for annulment of judgment will,
2. Any competent person may be appointed by
therefore, lie.”
the court.
Section 3. Contents of Petition
Section 8. Termination of Administration
a) The jurisdictional facts;
The trusteeship or administration of the property of
b) The names, ages, and residences of the heirs the absentee shall cease upon order of the court in any
instituted in a will, copy of which shall be of the following cases:
presented, and of the relatives who would
a) When the absentee appears personally or by
succeed by the law of intestacy;
means of an agent;
c) The names and residences of creditors and
b) When the death of the absentee is proved and
others who may have any adverse interest
his testate or intestate heirs appear;
over the property of the absentee;
c) When a third person appears, showing by a
d) The probable value, location and character of
proper document that he has acquired the
the property of the absentee.
absentee’s property by purchase or other title.
Section 4-6. PROCEDURE
In these cases, the trustee or administrator
1) FILING of Petition (Appointment of shall cease in the performance of his office, and the
Representative/Declaration of Absence) property shall be placed at the disposal of whose may
2) Court FIXES date and place of hearing have a right thereto.
3) Service of the NOTICE at least TEN days
before the day of the hearing upon known
heirs, creditors & other interested parties
 Article 387. An administrator of the absentee's property
shall be appointed in accordance with article 383.

Article 388. The wife who is appointed as an administratrix

Pertinent Civil Code provisions on Absence of the husband's property cannot alienate or encumber the
husband's property, or that of the conjugal partnership,
TITLE XIV : ABSENCE
without judicial authority.
Chapter 1 – Provisional Measures in Case of Article 389. The administration shall cease in any of the
Absence following cases:
Article 381. When a person disappears from his domicile, (1) When the absentee appears personally or by means of an
his whereabouts being unknown, and without leaving an agent;
agent to administer his property, the judge, at the instance
of an interested party, a relative, or a friend, may appoint a (2) When the death of the absentee is proved and his testate
person to represent him in all that may be necessary. or intestate heirs appear;

This same rule shall be observed when under similar (3) When a third person appears, showing by a proper
circumstances the power conferred by the absentee has document that he has acquired the absentee's property
expired. by purchase or other title.

Article 382. The appointment referred to in the preceding In these cases the administrator shall cease in the
article having been made, the judge shall take the necessary performance of his office, and the property shall be at
measures to safeguard the rights and interests of the the disposal of those who may have a right thereto.
absentee and shall specify the powers, obligations and
Summary Judicial Proceedings under the Family
remuneration of his representative, regulating them,
Code
according to the circumstances, by the rules concerning
guardians. Article 238 of the Family Code, under Title XI:
Article 383. In the appointment of a representative, the SUMMARY JUDICIAL PROCEEDINGS IN THE FAMILY
spouse present shall be preferred when there is no legal LAW, sets the tenor for cases covered by these rules,
separation. to wit:
If the absentee left no spouse, or if the spouse present is a “Art. 238. Until modified by the Supreme
minor, any competent person may be appointed by the Court, the procedural rules provided for in this
court. Title shall apply as regards separation in fact
Chapter 2 – Declaration of Absence between husband and wife, abandonment by
one of the other, and incidents involving
Article 384. Two years having elapsed without any parental authority.”
news about the absentee or since the receipt of the last
news, and five years in case the absentee has left a person Chapter 2 – Separation in Fact
in charge of the administration of his property, his absence
Art. 239. When a husband and wife are separated in fact, or
may be declared.
one has abandoned the other and one of them seeks judicial
Article 385. The following may ask for the declaration of authorization for a transaction where the consent of the
absence: other spouse is required by law but such consent is withheld
or cannot be obtained, a verified petition may be filed in
(1) The spouse present;
court alleging the foregoing facts.
(2) The heirs instituted in a will, who may present an
The petition shall attach the proposed deed, if any,
authentic copy of the same;
embodying the transaction, and, if none shall describe in
(3) The relatives who may succeed by the law of intestacy; detail the said transaction and state the reason why the
required consent thereto cannot be secured. In any case,
(4) Those who may have over the property of the absentee the final deed duly executed by the parties shall be
some right subordinated to the condition of his death. submitted to and approved by the court.
Article 386. The judicial declaration of absence shall not Art. 240. Claims for damages by either spouse, except costs
take effect until six months after its publication in a of the proceedings, may be litigated only in a separate
newspaper of general circulation. action.
Chapter 3 – Administration of the Property of the Art. 241. Jurisdiction over the petition shall, upon proof of
Absence notice to the other spouse, be exercised by the proper court
authorized to hear family cases, if one exists, or in the
regional trial court or its equivalent sitting in the place 1. The petition shall be verified, to assure its
where either of the spouses resides. truthfulness.
Art. 242. Upon the filing of the petition, the court shall 2. Notice of the filing of the petition should
notify the other spouse, whose consent to the transaction is always be sent to the respondent at his or her
required, of said petition, ordering said spouse to show
last known address, as part of due process.
cause why the petition should not be granted, on or before
the date set in said notice for the initial conference. The 3. No periods are set, and it is up to the judge to
notice shall be accompanied by a copy of the petition and determine the period within which the
shall be served at the last known address of the spouse respondent should answer the petition and
concerned.
the hearing thereof, which should be very
Art. 243. A preliminary conference shall be conducted by short, considering that the proceedings are
the judge personally without the parties being assisted by summary.
counsel. After the initial conference, if the court deems it
useful, the parties may be assisted by counsel at the 4. There is a preliminary conference wherein
succeeding conferences and hearings. lawyers are excluded, since in some cases,
they are only obstructions to a compromise
Art. 244. In case of non-appearance of the spouse whose
between the parties.
consent is sought, the court shall inquire into the reasons for
his failure to appear, and shall require such appearance, if 5. The appearance of the trial fiscal of the court
possible. is not required since he might just be absent or
Art. 245. If, despite all efforts, the attendance of the non- come unprepared.
consenting spouse is not secured, the court may proceed ex
6. The preliminary conference should be
parte and render judgment as the facts and circumstances
conducted personally by the judge in the
may warrant. In any case, the judge shall endeavor to
protect the interests of the non-appearing spouse. nature of an inquisitional hearing.

Art. 246. If the petition is not resolved at the initial 7. The proceeding can be decided on the basis of
conference, said petition shall be decided in a summary affidavits or other documentary evidence
hearing on the basis of affidavits, documentary evidence or because of its summary nature, and oral
oral testimonies at the sound discretion of the court. If testimonies of witnesses will be required only
testimony is needed, the court shall specify the witnesses to when needed and at the discretion of the court.
be heard and the subject-matter of their testimonies,
directing the parties to present said witnesses. 8. The case shall be decided in the most
expeditious manner and without regard to
Art. 247. The judgment of the court shall be immediately
technical rules.
final and executory.
9. The judgment of the court shall be
Art. 248. The petition for judicial authority to administer or
encumber specific separate property of the abandoning immediately final and executory.
spouse and to use the fruits or proceeds thereof for the
💡 Judgment in summary proceedings not appealable
support of the family shall also be governed by these rules.

Chapter 3 – Incidents Involving Parental Authority

Republic vs. Cantor

Art. 249. Petitions filed under Articles 223, 225 and 235 of SC: “The Family Code was explicit that the court’s
this Code involving parental authority shall be verified.. (n) judgment in summary proceedings, such as the
declaration of presumptive death of an absent spouse
Art. 250. Such petitions shall be verified and filed in the
under Article 41 of the Family Code, shall be
proper court of the place where the child resides. (n)
immediately final and executory.
Art. 251. Upon the filing of the petition, the court shall
notify the parents or, in their absence or incapacity, the
With the judgment being final, it is necessarily follows
individuals, entities or institutions exercising parental that it is no longer subject to an appeal, the
authority over the child. (n) dispositions and conclusions therein having become
immutable and unalterable not only as against the
Art. 252. The rules in Chapter 2 hereof shall also govern parties but even as against the courts. Modification of
summary proceedings under this Chapter insofar as they
the court’s ruling, no matter how erroneous is no
are applicable.
longer permissible. The final and executory nature of
Characteristics of summary proceedings in the this summary proceeding thus prohibits resort to
Family Code appeal.”
Republic vs. Bermudez-Lorino

SC: “In Summary Judicial Proceedings under the

Family Code, there is no reglementary period within
within which to perfect an appeal, precisely because
judgments rendered thereunder, by express provision
of Article 247, Family Code are ‘immediately final
and executory.’”

Certiorari is the proper remedy

Republic vs. Tango

SC: “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
in a 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 the 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, eve if the Court’s
original jurisdiction to issue a writ of certiorari is
concurrent with the RTCs and the CA in certain cases,
such concurrence does not sanction an unrestricted
freedom of choice of court forum.”

Strict standard approach to protect and strengthen

marriage

Republic vs. Cantor

SC: “The Court, fully aware of the possible collusion

of spouses in nullifying their marriage, has
consistently applied the ‘strict standard’ 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.”