LUKBAN vs.
REPUBLIC OF THE PHILIPPINES
Topic: F. Voidable marriages (7. Marriage when spouse is absent)
Doctrines:
1. A judicial pronouncement to that effect, even if final and executory, would still be a prima facie
presumption only. It is still disputable. It is for that reason that it cannot be the subject of a judicial
pronouncement or declaration, if it is the only question or matter involved in a case, or upon which a
competent court has to passw. It is, therefore, clear that a judicial declaration that a person is
presumptively dead, because he had been unheard from in seven years, being a presumption juris
tantum only, subject to contrary proof, cannot reach the stage of finality or become final.
2. For the purposes 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 provisions of the Civil
Code has for its sole purpose to enable the taking of the necessary precautions for the administration of
the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the
former spouse has been absent for seven consecutive years at the time of the second marriage, that the
spouse present does not know his or her former spouse to be living, that each former spouse is generally
reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.
Facts:
Lourdes G. Lukban, Petitioner herein, contracted marriage with Francisco Chuidian on December 10,
1933 in Manila.
On December 27, of the same year, Francisco left Lourdes after a violent quarrel and since then he has
not been heard from despite diligent search made by her. She also inquired about him from his parents
and friends but no one was able to indicate his whereabouts. She has no knowledge if he is still alive, his
last known address being Calle Merced, Paco, Manila. She believes that he is already dead because he
had been absent for more than twenty years, and because she intends to marry again, she desires that
her civil status be defined in order that she may be relieved of any liability under the law.
Petitioner filed a petition with the CFI of Rizal for a declaration that she is a widow of her husband
Chuidian who is presumed to be dad and has no legal impediment to contract a subsequent marriage.
The trial court dismissed the petition.
Contention of both parties: The Solicitor General opposed the petition on the ground that the same is
not authorized by law.
Ruling of:
RTC: The court sustained the opposition and dismissed the petition.
CA: Not stated.
Issue/s:
Whether or not petition filed by petitioner for a declaration that she is a widow of her husband who is
presumed to be dead and has no legal impediment to contract a subsequent marriage may be
entertained.
Ruling of SC:
No. In the case of Nicolai Szartraw, wherein it was held that a petition for judicial declaration
that Petitioner’s husband is presumed to be dead cannot be entertained because it is not authorized by
law, and if such declaration cannot be made in a special proceeding similar to the present, much less can
the court determine the status of Petitioner as a widow since this matter must of necessity depend upon
the fact of death of the husband. This the court can declare upon proper evidence, but not to decree that
he is merely presumed to be dead.
The philosophy behind the ruling that such judicial pronouncement cannot be made in a proceeding of
this nature is well expressed in the case above-cited. Thus, we there said that “A judicial pronouncement
to that effect, even if final and executory, would still be a prima facie presumption only. It is still disputable.
It is for that reason that it cannot be the subject of a judicial pronouncement or declaration, if it is the only
question or matter involved in a case, or upon which a competent court has to pass. It is, therefore, clear
that a judicial declaration that a person is presumptively dead, because he had been unheard from in
seven years, being a presumption juris tantum only, subject to contrary proof, cannot reach the stage of
finality or become final.”
Appellant claims that the remedy she is seeking for can be granted in the present proceedings because in
the case of Hagans vs. Wislizenus, 42 Phil., 880, it was declared that a special proceeding is “an
application or proceeding to establish the status or right of a party, or a particular fact”; but, as already
said, that remedy can be invoked if the purpose is to seek the declaration of death of the husband, and
not, as in the present case, to establish a presumption of death. If it can be satisfactorily proven that the
husband is dead, the court would not certainly deny a declaration to that effect as has been intimated in
the case of Nicolas Szartraw, supra.
Appellant also claims that the present petition can be entertained because article 349 of the Revised
Penal Code, in defining bigamy, provides that a person commits that crime if he contracts a second
marriage “before the absent spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings” and, it is claimed, the present petition comes within the purview of
this legal provision. The argument is untenable for the words “proper proceedings” used in said article can
only refer to those authorized by law such as those which refer to the administration or settlement of the
estate of a deceased person (Articles 390 and 391, new Civil Code). That such is the correct
interpretation of the provision in question finds support in the case of Jones vs. Hortiguela, wherein this
Court made the following comment:
“For the purposes 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 provisions of the Civil
Code has for its sole purpose to enable the taking of the necessary precautions for the administration of
the estate of the absentee. For the celebration of civil marriage, however, the law only requires that the
former spouse has been absent for seven consecutive years at the time of the second marriage, that the
spouse present does not know his or her former spouse to be living, that each former spouse is generally
reputed to be dead and the spouse present so believes at the time of the celebration of the marriage.”
