Republic vs. Nolasco

Persons and Family Relations
Professor: Atty. Estolloso

Ponente:
G.R. No. 94053
Republic vs. Nolasco March 17, 1993 Submitted by: Submitted on:
ONIA, John Arjay July 11, 2019
1st Year, Juris Doctor
Petitioners: Respondents:
Republic of the Philippines Gregorio Nolaso
NATURE OF PETITION:
On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of Antique, Branch
10, a petition for the declaration of presumptive death of his wife Janet Monica Parker, invoking Article 41
of the Family Code. The petition prayed that respondent's wife be declared presumptively dead or, in the
alternative, that the marriage be declared null and void.
FACTS:
Respondent Gregorio Nolasco (seaman-respondent), first met his wife Janet Monica Parker (British
subject) in a bar in England during one of his ship’s port calls.
Janet and Nolasco then lived together on his ship for six (6) months until they returned to respondent’s
hometown in San Jose, Antique on November 19, 1980, after his seaman’s contract expired.
After marriage celebration, he obtained another employment contract as seaman, then left his wife with
his parents in San Jose Antique.
Sometime in January 1983, while working overseas, respondent received letter from his mother informing
him that Janet had given birth to his son. Same letter informed him that Janet left Antique. Respondent
claimed he then immediately asked permission to leave his ship and arrived home in November 1983.
Respondent further testified that his efforts to look for her himself whenever his ship docked in England
proved fruitless. Also, he stated that all letters he had sent to missing spouse at No. 38 Ravena Road,
Allerton, Liverpool, England, address of bar where they first met, were all returned to him.
He also claimed that he inquired among friends, but they too had no news of Janet.
On cross-examination, respondent stated they lived together and later married, despite his lack of
knowledge of her family background, and insisted that his wife refused to give him such information.
He also testified that he did not report the matter of disappearance of his wife to Philippine government
authorities.
Respondent presented his mother, Alicia Nolasco, as witness. She testified that Janet had expressed a
desire to return to England even before she had given birth to Gerry Nolaso on December 7, 1982.
When asked why, she replied that Janet never got used to the rural way of life in San Jose, Antique. She
also said that she tried to dissuade Janet Monica from leaving as she had given birth to her son just 15
days before, but failed to do so, and gave Janet P22, 000.00 for expense before she left on December 22,
1982 for England. She further claimed that she had no information as to the missing present
whereabouts.
The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the dispositive portion of
which reads:
Wherefore, under Article 41, paragraph 2 of the Family Code of the Philippines (Executive Order No.
209, July 6, 1987, as amended by Executive Order No. 227, July 17, 1987) this Court hereby declares
as presumptively dead Janet Monica Parker Nolasco, without prejudice to her reappearance.
Republic then appealed to CA contending that trial court erred in declaring Janet presumptively dead
because respondent Nolasco had failed to show that there existed a well founded belief for such
declaration.
CA affirmed trial court’s decision, holding respondent sufficiently established a basis to form a belief that
his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this Court on a Petition for Review where the
following allegations are made:
1. The Court of Appeals erred in affirming the trial court's finding that there existed a well-founded belief
on the part of Nolasco that Janet Monica Parker was already dead; and
2. The Court of Appeals erred in affirming the trial Court's declaration that the petition was a proper
case of the declaration of presumptive death under Article 41, Family Code.
Issues Ruling
NO
Whether or not Nolasco has a well-founded belief that his wife is already dead?
RULING:
NO, Nolasco doesn’t have a well-founded belief that his wife was already dead.
Under Article 41 of the Family Code, the four requisites for the declaration of presumptive death are
the following: (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 absentee.
In the case at the bar, the court believes that respondent Nolasco failed to conduct a search for his
missing wife with such diligence as to give rise to a "well-founded belief" that she is dead.
Court citing United States v. Biasbas, is instructive as to degree of diligence required in searching for
a missing spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy.
He set-up the defense of a good faith belief that his first wife had already died. The Court held that
defendant had not exercised due diligence to ascertain the whereabouts of his first wife, noting that:
While the defendant testified that he had made inquiries concerning the whereabouts of his wife, he
fails to state of whom he made such inquiries. He did not even write to the parents of his first wife,
who lived in the Province of Pampanga, for the purpose of securing information concerning her
whereabouts. He admits that he had a suspicion only that his first wife was dead. He admits that the
only basis of his suspicion was the fact that she had been absent
In the case at the bar, the Court considers that the investigation allegedly conducted by respondent
in his attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a
reasonable or well-founded belief that she was already dead. When he arrived in San Jose, Antique
after learning of Janet Monica's departure, instead of seeking the help of local authorities or of the
British Embassy, he secured another seaman's contract and went to London, a vast city of many
millions of inhabitants, to look for her there.
The Court also views respondent's claim that Janet Monica declined to give any information as to her
personal background even after she had married respondent too convenient an excuse to justify his
failure to locate her. The same can be said of the loss of the alleged letters respondent had sent to
his wife which respondent claims were all returned to him. Respondent said he had lost these
returned letters, under unspecified circumstances.
Neither can this Court give much credence to respondent's bare assertion that he had inquired from
their friends of her whereabouts, considering that respondent did not identify those friends in his
testimony. The Court of Appeals ruled that since the prosecutor failed to rebut this evidence during
trial, it is good evidence. But this kind of evidence cannot, by its nature, be rebutted. In any case,
admissibility is not synonymous with credibility. As noted before, there are serious doubts to
respondent's credibility. Moreover, even if admitted as evidence, said testimony merely tended to
show that the missing spouse had chosen not to communicate with their common acquaintances,
and not that she was dead.
By the same token, the spouse should not be allowed, by the simple expedient of agreeing that one
of them leave the conjugal abode and never to return again, to circumvent the policy of the laws of
marriage. The court notes that respondent even tried to have his marriage annulled before the trial
court in the same preceeding.
The circumstances of Janet Monica's departure and respondent's subsequent behavior make it very
difficult to regard the claimed belief that Janet Monica was dead a well-founded one.
Disposition
WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the trial court's
decision declaring Janet Monica Parker presumptively dead is hereby REVERSED and both Decisions
are hereby NULLIFIED and SET ASIDE. Costs against respondent.

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Persons and Family Relations

Professor: Atty. Estolloso

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