Question A.2, 2019 Civil Law Bar Exam

A.2.

(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

..

(Notice: The suggested answers simulate those that a bar examinee may provide, and thus specific citations are not provided. Notwithstanding, in the reviewers, the bar exam question is answered under the appropriate topic which discusses the concepts and principles, as well as provide for specific citations. Accordingly, please refer to it on the reviewer or in the Library.)

Related

System-based bar exam review mentoring program to improve your bar exam preparation

© 2022 BARMENTOR.PH. All Rights Reserved.

error: Content is protected.