Articles 381 to 383 of the Civil Code

THE CIVIL CODE

RA. No. 386

TITLE XIV

Absence

CHAPTER 1

Provisional Measures in Case of Absence

ART 381. When a person disappears from his domicile, his whereabouts being unknown, and without leaving an agent to administer his property, the judge, at the instance of an interested party, a relative, or a friend, may appoint a person to represent him in all that may be necessary.

This same rule shall be observed when under similar circumstances the power conferred by the absentee has expired. (181a)

ART 382. The appointment referred to in the preceding Art 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)

ART 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)

          These articles provide provisional measures in case of absence. Article 381 provides the requisites for the declaration of the absence of a person. These are: When a person

1.           disappears from domicile;
2.           his/her whereabouts being unknown; and
3.           he or she has no appointed administrator of his/her properties.

          Apparently, when a person has no property to administer, judicial declaration of absence is not necessary.

          Article 381 provides “Who may petition for representation of a person who disappears” These are:

          1. an interested party

          2. a relative

          3. a friend

          To protect the rights of parties such as creditors and heirs, one may seek judicial declaration of the absence of a person in behalf whom a representative may be appointed by the court.

          Article 381 also provides that “The same rule shall be observed when under similar circumstances the power conferred by the absentee has expired.”

          This provision applies when the absentee has appointed a representative but the conferment is already beyond its period or time of effectivity has lapsed.

          Article 382 provides the reason why judicial declaration of the absence of a person is necessary – that is to protect the rights of the absentee and it is the duty of the court do so. Specifically, Article 382 directs the judge to take the necessary measures to

          1. safeguard the rights and interests of the absentee

          2. specify the powers, obligations & remuneration of his representative

          Under Article 383, any person “In the appointment of a representative, the spousepresent shall be preferred when there is no legal separation.” This means that, as long as there is no judicial dissolution of marriage or when the spouses are not legally separated, the present spouse should be appointed as the representative of the absent spouse. However, if the absentee left no spouse, or if the spouse present is a minor, any competent person may be appointed by the court.

          Note that the Family Code renders the phrase “if the spouse present is a minor” ineffective since the minimum age required to capacitate a person to marry is 18 years.

Case Digest

Reyes vs. Alejandro

G.R. No. L-32026, January 16, 1986

Facts:

            Erlinda Reynoso Reyes were married to Roberto Reyes on March 20, 1960. On October 25, 1969 Erlinda filed a petition for the declaration of the absence of Roberto. She alleged in her petition that Roberto had been absent from their conjugal dwelling since April 1962 and since then, his whereabouts were unknown. Also stated in the same petition is the fact that Roberto left no will nor any property in his name nor any debts.

Issue:

            Whether or not Erlinda’s petition should be dismissed.

Ruling:

            Yes. Erlinda’s petition should be dismissed.

The Supreme Court upheld the ruling of the Court of First Instance of Cavite dismissing Erlinda’s petition. Applying Articles 381 to 384 of the New Civil Code, the Court held that “the need to have a person judicially declared an absentee is when he has properties which have to be taken cared of or administered by a representative appointed by the Court; the spouse of the absentee is asking for separation of property or his wife is asking the Court that the administration of a classes of property in the marriage be transferred to her.” Since Roberto left no properties to administer, there was no valid and urgent reason to grant her petition.

 The Court further explained that “the petition to declare the husband an absentee and the petition to place the management of the conjugal properties in the hands of the wife may be combined and adjudicated in the same proceedings.”

Reference:

Albano, Ed Vincent (2017). Persons and Family Relations. Central Book Supply Inc.: Manila

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by Permanent Class Number 4 in Persons and Family Relations, LSPU, First Semester, SY2019-2020

Date Last Updated: 30Nov2019