Law Dictionary

Question A.2, Civil Law, 2019 Bar Exam

Notice: The following suggested answers simulate those that a bar examinee may provide as an answer to a bar exam question. Thus, specific citations (i.e., republic acts, articles/sections, jurisprudence, etc.) are not provided because it is not required in the bar exam. For purposes other than answering the bar exam, please be reminded that proper referencing or legal citation is required.

Question A.2, Civil Law, 2019 Bar Exam

H and W were married in 1990. H, being a member of the Armed Forces of the Philippines (AFP), was deployed to a rebel-infested area in 1992. Since then, W has not heard from her husband, H.

One day, the AFP informed W that H had been declared missing since 1995. In consequence, W diligently pursued all available means to ascertain her husband’s whereabouts, but to no avail.

Firmly believing that H had already died, W filed a claim before the AFP in 2008 for the death benefits of the missing serviceman. However, the AFP, despite being cognizant of H’s status, would not act on the claim, contending that H could not be presumed dead unless a judicial declaration to this effect is issued by the proper court.

In what instance/s is a judicial declaration of presumptive death necessary? In this case, is the contention of the AFP correct? Explain. (3%)

Suggested Answer:

1) For the second question: Under the jurisprudence, a judicial declaration of presumptive death is necessary if the resolution of a controversy relates to the absence of a person which may be presumed dead. This includes re-marriage, succession, among others. A presumption of death cannot be the lone subject of an independent action or proceeding, as the presumption is merely one of the evidence that may be invoked in any action or proceeding.

2) For the second question:

No. Answer

Under jurisprudence, the AFP can decide claims of death benefits of a missing soldier without requiring the claimant to first produce a court declaration of the presumptive death of such soldier. For purposes of succession, a person is presumed dead if his absence has lasted 10 years. Rule

In the case at bar, it is undisputed that W was married to H. Further, H was an AFP member deployed at a rebel-infested area. For over 13 years, H had been missing or absent and despite W’s diligent efforts to ascertain her husband’s whereabouts. Apply

Thus, the AFP’s contention is not correct. Conclusion

Disclaimer: All information is for educational and general information only. These should not be taken as professional legal advice or opinion. Please consult a competent lawyer to address your specific concerns. Any statements or opinions of the author are solely his own and do not reflect that of any organization he may be connected.

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