Article
382. The appointment referred to in the preceding article having been made, the
judge shall take the necessary measures to safeguard the rights and interests
of the absentee and shall specify the powers, obligations and remuneration of
his representative, regulating them, according to the circumstances, by the
rules concerning guardians. (182)
by: Kristia
Capio
It is necessary that the
appointment of a representative of an absentee be made by
way of a court order, and it
must be noted that a spouse must likewise file an
application for appointment
with the courts with respect to the properties of his or
her very own absent spouse.
If there is no legal separation, the spouse present
shall be preferred.
Article 383. In the appointment of
a representative, the spouse present shall be preferred when there is no
legal separation.
If the absentee left no
spouse, or if the spouse present is a minor, any competent person may be
appointed by the court. (183a)
If the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court. (183a)
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.
by: Evita Teope
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:
Family Code of the Philippines 2017th Edition by Judge Ed Vincent S. Albano
Civil Code of the Philippines Annotated 16thEdition by Edgardo Paras
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:
Family Code of the Philippines 2017th Edition by Judge Ed Vincent S. Albano
Civil Code of the Philippines Annotated 16thEdition by Edgardo Paras
Article 385. The following may ask for the declaration of absence:
(1) The spouse present;
(2) The heirs instituted in a will, who may present an authentic copy of the same;
(3) The relatives who may succeed by the law of intestacy;
(4) Those who may have over the property of the absentee some right subordinated to the condition of his death. (185)
Article 386. The judicial declaration of absence shall not take effect until six months after its publication in a newspaper of general circulation. (186a)
CHAPTER 3
ADMINISTRATION OF THE PROPERTY OF THE ABSENTEE
Article 387. An administrator of the absentee’s property shall be appointed in accordance with Article 383. (187a)
Article 388. The wife who is appointed as an administratrix of the husband’s property cannot alienate or encumber the husband’s property, or that of the conjugal partnership, without judicial authority. (188a)
Article 389. The administration shall cease in any of the following cases:
(1) When the absentee appears personally or by means of an agent;
(2) When the death of the absentee is proved and his testate or intestate heirs appear;
(3) When a third person appears, showing by a proper document that he has acquired the absentee’s property by purchase or other title.
CHAPTER 3
PRESUMPTION OF DEATH
Article 390. After an absence of seven years, it shall be known whether or not the absentee still lives, he shall be presumed dead for all purposes except for those of succession.
The absentee shall not be presumed dead for the purpose of opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n)
by: Rose Ann Villanueva
The present spouse shall file a summary proceeding for the declaration of presumptive death.
If the absent spouse disappeared at the age of 75 years, the estates left by the absent spouse can be inherited after the lapse of five years.
Article 391. The
following shall be presumed dead for all purposes, including the division of
the estate among the heirs:
(1)
A person on board a vessel lost during a sea voyage, or an aeroplane which is
missing, who has not been heard of for four years since the loss of the vessel
or aeroplane;
(2)
A person in the armed forces who has taken part in war, and has been missing
for four years;
(3)
A person who has been in danger of death under other circumstances and his
existence has not been known for four years. (n)
by: Aneleth Anjolyn
Valencia
There
are two kinds of absence namely Ordinary Absence and Qualified Ordinary
absence. In ordinary absence, death is presumed to have occurred on the last
day of the period. While in Extraordinary absence, death is presumed to have
occurred at the beginning of the period.
Article 392. If the absentee appears, or without appearing his existence is proved, he shall recover his property in the condition in which it may be found, and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rents. (194)
by: Kristia Capio
RECOVERY OF PROPERTY BY ABSENTEE
This gives the right to recover. This is because succession has not really taken place. However, extraordinary prescription (real property — 30 years; personal property — 8 years; counted from the time the heir is in possession in the concept of owner) may prevent recovery. In other words, the heir may have acquired the property not by succession but by prescription.
NON-RETURN OF FRUITS OR RENTS
The fruits or rents are not to be returned, since the recipient is supposed to have been a possessor in good faith.
CHAPTER 5
EFFECTS OF ABSENCE UPON THE CONTINGENT RIGHTS OF THE ABSENTEE
Article 394. Without prejudice to the provision of the preceding article, upon the opening of a succession to which an absentee is called, his share shall accrue to his coheirs, unless he has heirs, assigns, or a representative. They shall all, as the case may be, make an inventory of the property. (196a)
Article 395. The provisions of the preceding article are understood to be without prejudice to the action of petition for inheritance or other rights which are vested in the absentee, his representatives or successors in interest. These rights shall not be extinguished save by lapse of time fixed for prescription. In the record that is made in the Registry of the real estate which accrues to the co-heirs, the circustance of its being subject to the provisions of this article shall be stated.
These Articles are related to the rules on succession. As a rule, if an absentee is called upon to inherit, his share shall accrue to his co-heirs.
An example in Article 394 is:
If a man, Y, died, and his heirs X and S, X, however, have been declared an absentee or, for that matter, he may have already been presumed dead under the law. Who will get the share of X in the estate of Y?
Answer: The share of X will accrue to S, unless the heirs of X, or the assigns or representatives of X, will claim such property. If they do this, whoever gets the property that should have gone to X must make an inventory of such property.
On the other hand an example in Article 395 is:
In hid will, a testator gave a parcel of land to X, Y, and Z. When the testator died, X was absent, but X himself has a child R. Rin the meantime got X's share. In default of R, the other heirs or devisees, Y and Z, can have the land registered in their name. If X turns out to be alive, his share can still be recovered from Y and Z, unless X losses the right by prescription.
References:
Family Code of the Philippines 2017th Edition by Judge Ed Vincent S. Albano
An example in Article 394 is:
If a man, Y, died, and his heirs X and S, X, however, have been declared an absentee or, for that matter, he may have already been presumed dead under the law. Who will get the share of X in the estate of Y?
Answer: The share of X will accrue to S, unless the heirs of X, or the assigns or representatives of X, will claim such property. If they do this, whoever gets the property that should have gone to X must make an inventory of such property.
On the other hand an example in Article 395 is:
In hid will, a testator gave a parcel of land to X, Y, and Z. When the testator died, X was absent, but X himself has a child R. Rin the meantime got X's share. In default of R, the other heirs or devisees, Y and Z, can have the land registered in their name. If X turns out to be alive, his share can still be recovered from Y and Z, unless X losses the right by prescription.
References:
Family Code of the Philippines 2017th Edition by Judge Ed Vincent S. Albano
Civil Code of the Philippines Annotated 16thEdition by Edgardo Paras
Article 396. Those who may have entered upon the inheritance shall appropriate the fruits received in good faith so long as the absentee does not appear, or while his representatives or successors in interest do not bring the proper actions. (198)
TITLE XV
CIVIL REGISTER
CIVIL REGISTER
CHAPTER 1
REQUISITES OF MARRIAGE
Article 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. (325a)
Article 408. The following shall be entered in the civil register:
(1) Births;
(2) marriages;
(3) deaths;
(4) legal separations;
(5) annulments of marriage;
(6) judgments declaring marriages void
from the beginning;
(7) legitimations;
(8) adoptions;
(9) acknowledgments
of natural children;
(10) naturalization;
(11) loss, or (12) recovery of citizenship;
(13) civil interdiction;
(14) judicial determination
of filiation;
(15) voluntary emancipation of a minor; and
(16) changes of name. (326a)
Article 409. In cases of legal separation, adoption, naturalization and other judicial orders mentioned in the preceding article, it shall be the duty of the clerk of the court which issued the decree to ascertain whether the same has been registered, and if this has not been done, to send a copy of said decree to the civil registry of the city or municipality where the court is functioning. (n)
Article 410. The books making up the civil register and all documents relating thereto shall be considered public documents and shall be prima facie evidence of the facts therein contained. (n)
Article 411. Every civil registrar shall be civilly responsible for any unauthorized alteration made in any civil register, to any person suffering damage thereby.
However, the civil registrar may exempt himself from such liability if he proves that he has taken every reasonable precaution to prevent the unlawful alteration. (n)
Article 412. No entry in a civil register shall be changed or corrected, without a judicial order. (n)
Article 413. All other matters pertaining to the registration of civil status shall be governed by special laws. (n)
by: Rose Ann Villanueva
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