REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

FIRST JUDICIAL REGION
Branch 19, Bangui, Ilocos Norte
SUMMARY PROCEEDINGS FOR THE
JUDICIAL DECLARATION OF ABSENCE
AND
PRESUMPTIVE
DEATH
OF
BABYJANE M. ALIPOT (MAIDEN
NAME|) ALSO KNOWN AS BABYJANE
A. AGARPAO (MARRIED NAME)
PURSUANT TO ARTICLE 41 OF THE
FAMILY CODE
CIVIL CASE NO.2612 -19
ALSON REY V. AGARPAO
Petitioner,

x---------------------------------------------x
DECISION
This is a petition filed on February 9, 2015 by Alson Rey V. Agarpao seeking and
praying to the court that Babyjane M. Alipot be judicially declared presumptively dead in
accordance with Section 41 of the Family Code of the Philippines.
In his petition,1 petitioner asserts that she and Noli G. Peralta (herein respondent)
got married on December 27, 19882 at the Office of the Municipal Trial Judge of
Balungao, Pangasinan. She avers that her husband is an Armed Forces of the Philippines
personnel who retired on October 1, 2004 as per Extract Copy of the Order 3 dated June 8,
2004. After her husbands retirement, he engaged into driving a Public Utility Jitney
(PUJ) for hire to augment his pension for their family sustenance. Out of their marital
union, they were able to have three (3) progenies namely: Noni Joy, James Leoneil and
Rhinoa Andrea all surnamed Peralta. On May 31, 2012, on or about 4:30 in the morning,
her husband had his chore as a jitney driver. Not long thereafter, a passenger called her to
inform that Noli, her husband, was forcibly taken by some men. Alarmed with what she
came to know, she called her husbands cellular phone but all her calls were not received.
On the same day, Leilanie reported the said incident to their barangay as evidenced by a
Barangay Blotter4 and the following day, June 1, 2012, she reported it to the Rosales
1 Exhibit A, pages 1-2
2 Rollo, page 5
3 Exhibit I, page 6
4 Exhibit J, page 7

Police Station, Rosales, Pangasinan which has jurisdiction considering that the abduction
took place in said municipality as evidenced by an Extract Copy of Police Blotter.5 She
likewise informed the relatives of her husband in their locality and to places where he has
a relative regarding his disappearance/abduction by four (4) men wearing bonnet. She
avows that all her efforts in finding the respondent became futile and in vain since he
vanished up to the present and his whereabouts remained unknown and unascertained.
She states that her absentee spouse has never returned and not once heard of him since he
was abducted. Fearing for life and limb together with her family members, they
transferred residence for their safety. Leilanie posits that she and her husband have no
conjugal properties. She asserts that it has been more than two (2) years since she last
saw her husband and with all she had done in finding him, she cannot do anything but to
conclude that her husband may have already died. Thus, she had decided to give-up
looking for her husband and to comply with the requirements of the Armed Forces of the
Philippines (AFP) retirement benefits considering that she is the dependent of the
respondents retirement benefits and to give herself a chance of marrying another man in
the future.
Upon finding the petition to be sufficient in form and substance, an Order 6 was issued on
December 11, 2014 setting the case for hearing on January 29, 2015 at 8:30 oclock in the
morning. The said Order was required to be published in a newspaper of general
circulation in the Province of Ilocos Norte so that any person may be given notice to
appear and to show cause why the petition should not be granted. A copy of the petition
with its annexes was furnished to the Office of the Solicitor General who entered its
appearance7 on December 12, 2014 and to the Provincial Prosecutor of Ilocos Norte who
was deputized8 by the Solicitor General to assist in the case.
When the case was called during the initial hearing, nobody came forward to
contest the petition. Neither was there any written opposition filed. Thus, after proving
compliance with the jurisdictional requirements, especially the publication of the Order
for three (3) consecutive weeks in the ILOCOS SENTINEL, a newspaper of general
circulation in the City of Laoag and the Province of Ilocos Norte in its December 15-21,
2014,9 December 22-28, 201410 and December 29, 2014-January 4, 201511 issues. The
court through an Order12 set the initial presentation of evidence on February 19, 2015 but

5 Exhibit K, page
6 Exhibit B, pages 22-23
7 Exhibit G, page 19
8 Exhibit G-1, page 20
9 Exhibit C, page 28 back portion
10 Exhibit D, page 33
11 Exhibit E, page 37
12 Rollo, page 40

it was re-set to March 2, 2015 because February 19, 2015 was officially declared a
holiday.
The assertions of Leilanie in her petition were completely reiterated and confirmed in her
Judicial Affidavit.13
On cross examination by the trial prosecutor, petitioner asserts she and the
respondent got married on December 27, 1988 and lived in Ilocos Norte wherein the
latter was then assigned after their wedding. She states that her husband is a retired
soldier. They lived together as spouses until her husband was abducted on May 31, 2012
in Rosales, Pangasinan. She was not able to witness the abduction of her husband but one
of his passengers called her about it. She posits it was on May 31, 2012 that she last saw
and communicated with her husband. When informed of the abduction of her husband,
she contends that she reported the incident to their barangay officials and to the Police
Station Rosales, Pangasinan. Her brother-in-law had it broadcast over the radio and they
looked for him in every town. She avows that the alleged abductors never communicated
to her for any ransom or any amount to be raise in connection to the incident or any
person/group claiming to be responsible for it. She states that it was only her husband
who was forcibly abducted by persons who are not his passengers.
When asked by the court, Leilanie avers that her husband was already a retired
soldier at the time of his abduction on May 31, 2012. She had her last personal
communication with him on the same date at 4 oclock in the morning. She asserts that
based on the investigation conducted by the police, it appears that they were not able to
identify and find out who were responsible. She imparts that when her husband was still
active in the service being in the communication division he was assigned in Ilocos Norte
and was transferred to Manila. She contends that her husband was about to carry a sack
of fertilizer of one of his passengers when four (4) men went near him snatched and
boarded him in a car and sped towards Carmen, Pangasinan. Someone was able to get the
plate number of the car used in the incident but it was found out that it is not registered
and considered to be a bogus plate number. She contends that before the abduction of her
husband, he did not tell her any death threat or any enemy that may in the future will
cause him harm. She could not even suspect if the abductors were New Peoples Army
(NPA) considering that her husband is a former soldier. Thus, the police investigators of
Rosales, Pangasinan were point in time blank as to the people who could have been
responsible in the abduction of her husband. It has been almost three (3) years that her
husband is missing and no communication at all. She avers that her husband did not have
any mistress/girlfriend or a family aside from them.
Arsenio G. Peralta, (Arsenio for brevity) the petitioners collateral informant bear
witness in his Judicial Affidavit14 that Noli G. Peralta, herein respondent, is his younger
brother. He avows that he had personally caused the relaying of the information about his
younger brother who was allegedly abducted on May 31, 2012 in the morning by armed
men at Rosales, Pangasinan to their relatives and his friends who happened to be his coretirees in the Armed Forces of the Philippines (AFP) with branch of service in the Army.
He likewise had it aired in the Bombo Radyo based in Dagupan City, Pangasinan in order
to determine the whereabouts of his missing brother. From time to time, he made followups to his relatives, co-retirees and friends in the Army concerning the disappearance of
his brother but all turned out to be negative. Arsenio asserts that he is also a retired
Armed Forces of the Philippines enlisted personnel in the Army. He posits that it has been
13 Rollo, pages 42-45
14 Rollo, pages 48-49

more than two (2) years since he last saw his brother and he cannot do anything but to
conclude that her brother is dead already.
During the cross examination by the State Prosecutor, he deposes that Noli G.
Peralta is his brother who disappeared and can no longer locate him. He had exerted
efforts in order to find or discover him and informed all their relatives but they were not
able to locate him. He moreover sought the assistance of the police authorities and the
media particularly the Bombo Radyo Dagupan to air and disseminate the disappearance.
It has been almost three (3) years since the disappearance of his brother reason why at
this point he had completely lost hope that his younger brother is still alive.
Petitioner prays to this court that her husband Noli G. Peralta be judicially
declared an absentee-spouse and presumed dead in accordance with Section 41 of the
Family Code of the Philippines.
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 wellfounded 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 provision of Article 391 of the Civil Code, an absence of only
two years shall be sufficient. (Emphasis ours)
For the purpose of contracting the subsequent marriage under the
preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of
the absent spouse.
Before a judicial declaration of presumptive death can be obtained, it must be
shown that the prior spouse had been absent for four consecutive years and the present
spouse had a well-founded belief that the prior spouse was already dead. Under Article 41
of the Family Code, there are four (4) essential requisites for the declaration of
presumptive death:
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.15
In the case of Guidangen versus Wooden, 16 the Supreme Court states that the
burden of proof rests on the present spouse to show that all the requisites under Article 41
15 Republic of the Philippines vs. Maria Fe Espinosa Cantor G.R. No. 184621,
December 10, 2013 citing Republic vs. Nolasco, G.R. No. 94053, March 17, 1993, 220
SCRA 20.

of the Family Code are present. Since it is the present spouse who, for purposes of
declaration of presumptive death, substantially asserts the affirmative of the issue, it
stands to reason that the burden of proof lies with him. He who alleges a fact has the
burden of proving it and mere allegation is not evidence.
In the case at bar, it is worthy to note that the petitioner was presented and was
able to asserts that upon being informed about the abduction of her husband by four (4)
men wearing bonnet, she called her husbands cellular phone but unable to speak to him.
Thus, she reported it to their barangay officials and to the Philippine National Police and
informed her husbands relatives but all her efforts ends-up futile and vain. She likewise
presented her brother-in-law as her witness who in turn relayed the information to their
relatives and his friends/co-retirees in the Armed Forces of the Philippines, Army
Division. Her brother-in-law moreover caused the airing in the Bombo Radyo based in
Dagupan, Pangasinan about the abduction of his brother by unidentified armed men.
Hence, to the court the petitioner was able established and adhere to the
requirements provided for by Article 41 of the Family Code particularly that her absent
spouse has been missing for four (4) consecutive years or two (2) consecutive years if the
disappearance occurred under circumstances where there is danger of death based on
Article 391 of the Civil Code and that she has a well-founded belief that her absent
spouse is dead.
The Supreme Court rules in Republic of the Philippines versus Court of Appeals
and Alegro17 that belief is a state of the mind or condition prompting the doing of an overt
act. It may be proved by direct evidence or circumstantial evidence which may tend, even
in a slight degree, to elucidate the inquiry or to assist to a determination probably founded
in truth. Any fact or circumstance relating to the character, habits, conditions,
attachments, prosperity and objects of life which usually control the conduct of men, and
are the motives of their actions, was, so far as it tends to explain or characterize their
disappearance or throw light on their intentions, competence evidence on the ultimate
question of his death.
The belief of the present spouse must be the result of proper and honest to
goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and
whether the absent spouse is still alive or is already dead. Whether or not the spouse
present acted on a well-founded belief of death of the absent spouse depends upon the
inquiries to be drawn from a great many circumstances occurring before and after the
disappearance of the absent spouse and the nature and extent of the inquiries made by the
present spouse.
In this case, Leilanies efforts are considered competent pursuit in ascertaining the
whereabouts of her missing husband. First, she reported and sought the help of the police
and barangay officials concerning the abduction of her husband. Second, she asked the
help of her brother-in-law who is, like her husband, a retired personnel of the Armed
Forces of the Philippines and presented him in court. And lastly, she actively took part in
looking her missing husband.
The instances surrounding the disappearance of the petitioners husband due to
forcible abduction by unidentified armed men as corroborated by witnesses during the
incident, the fact that he was a former member of the Armed Forces of the Philippines
and the absence of any contact from the abductors for a possible ransom, to the belief of
16 G.R. No. 174445, February 15, 2012, 666 SCRA 119, 131
17 513 Phil. 391 (2005)

the court are signs that Noli G. Peralta was then under the danger of death and that at
present basis to consider him presumed dead.
Thus, the court finds the petition to be impressed with merit. The petitioner was
able to prove her allegations that her husband should be considered presumptively dead
and absentee spouse based on the encased circumstances.
IN VIEW OF THE FOREGOING, the petition is hereby GRANTED as
judgment is hereby rendered declaring NOLI G. PERALTA presumptively dead pursuant
to Article 41 of the Family Code.
Upon finality of this Decision, a copy shall be furnished each to the Office of the Civil
Registrar of Balungao, Pangasinan where the marriage was solemnized and the National
Census and Statistics Office, Manila for their appropriate action consistent with this
Decision. A copy of the dispositive portion shall be published in a newspaper of general
circulation at least once. The Decree of Absolute Nullity shall be issued upon finality
hereof.
SO ORDERED.
Given in chamber this 7th day of April, 2013 at Bangui, Ilocos Norte.

ROSEMARIE V. RAMOS
Presiding Judge
Copy furnished:
1.
2.
3.
4.
5.
6.

Atty. Josephus Nerez

Leilanie M. Peralta
Local Civil Registrar, Balungao, Pangasinan
National Statistics Office, Manila
Provincial Prosecutor of Ilocos Norte
Solicitor General