Dear PAO,

I had a falling out with my husband years ago. Because of this, I secured the services of a lawyer and had him declared presumptively dead. I wanted to be rid of him so I could eventually marry my new boyfriend, since an annulment case would just take too long.

Years later, our three kids needed money for their exclusive private school, so I decided to file a VAWC case against my former husband. This made him mad. When he discovered that I had him declared presumptively dead, he wanted to file a perjury case against me. Can he actually do that?

Trampi

Dear Trampi,

Unfortunately, your spouse may file a perjury case against you. From what you just narrated, it seems that you did indeed commit this crime.

First, the Supreme Court, speaking through Associate Justice Jose Reyes Jr., in the case of Edwin L. Saulo vs. People of the Philippines, et al. (GR 242900, June 8, 2020), defined what perjury means:

“The elements of perjury under Article 183 of the Revised Penal Code (RPC) are (a) that the accused made a statement under oath or executed an affidavit upon a material matter; (b) that the statement or affidavit was made before a competent officer, authorized to receive and administer oath; (c) that in the statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; and (d) that the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose.”

Secondly, your petition for the declaration of presumptive death of your spouse is discussed by the Supreme Court, speaking through Associate Justice Alfredo Benjamin Caguioa, in the case of Republic of the Philippines v. Remar A. Quiñonez (GR 237412, Jan. 6, 2020), which states the following:

“Article 41 of the Family Code provides the requirements for a declaration of presumptive death, thus:

“ART. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two years shall be sufficient. xxx

“Culled from this provision, the essential requisites for a declaration of presumptive death for the purpose of remarriage are:

“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 the absentee. (Emphasis in the original) xxx

“In Cantor, the Court en banc clarified the meaning of well-founded belief by comparing the language of Article 41 to its Civil Code counterpart. The Court held:

“Notably, Article 41 of the Family Code, compared to the old provision of the Civil Code which it superseded, imposes a stricter standard. It requires a ‘well-founded belief’ that the absentee is already dead before a petition for declaration of presumptive death can be granted. Xxx

“Thus, mere absence of the spouse (even for such period required by the law), lack of any news that such absentee is still alive, failure to communicate or general presumption of absence under the Civil Code would not suffice. This conclusion proceeds from the premise that Article 41 of the Family Code places upon the present spouse the burden of proving the additional and more stringent requirement of ‘well-founded belief’ which can only be discharged upon a showing of proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouse’s whereabouts but, more importantly, that the absent spouse is still alive or is already dead.”

Here, you knew fully well that your spouse never died, yet you had him declared dead via a petition for presumptive death. Such a petition is required to be verified, meaning it must be under oath. (Article 238 and Article 253 of the Family Code, in relation to Section 4, Rule 7 of the Rules of Civil Procedure, as amended) Hence, you knowingly lied under oath, and even filed it in court. Such actions are considered as perjury.

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]