Report: Article 381-385 of Family Code of the Philippines

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)

Notice that the heading of this chapter is Provisional Measures in Case of Absence, implying that the measures here are not permanent, and that in case a person is declared absent by the courts, another procedure will have to be followed. In case therefore of the disappearance of a person from his domicile, a representative may be appointed to act in his behalf in the meantime.

Stages of Absence

(a) Provisional Absence (Art. 381)

(b) Declaration of Absence (Art. 384)

(c) Presumption of Death (Arts. 390, 391)

Art. 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)

Rule 107 of the rules of courts govern the representative of an absentee. This Article states what the judge must do in case of provisional appointments.

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)

Note that the spouse who is present is preferred, provided:

(a) She is of age.

(b) There is no legal separation between the spouses.

DECLARATION OF ABSENCE

Art. 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. (184)

There are two kind of absence first is Absence without an administrator then the absence with administrator For the first, only two years’ time would be sufficient

to elapse before a declaration of absence can be made; in the second, five years. The reason for the longer period of time is the greater probability that the estate or property

is being well-taken care of.

Art. 385. The following may ask for the declaration of absence:

The spouse present;

The heirs instituted in a will, who may present an authentic copy of the same;

The relatives who may succeed by the law of intestacy;

Those who may have over the property of the absentee some right subordinated to the condition of his death. (185)

Those mentioned in this article are presumptive heirs or have interests in the property of the absentee conditioned upon his death; hence, they are given the right to ask for a declaration of the latter’s absence.