SYSTEM OF ABSOLUTE COMMUNITY: PROPERTY RELATIONS IN MARRIAGEBy: Atty.Fred | September 28, 2007 in Family Law, Property/Estate Law5 Replies | Related posts at the bottom of article

We previously noted that we are breaking down the discussion on the property relations of the spouses during marriage, as follows: (1) Prenuptial agreements and introduction to property relations between husband and wife; (2) The system of absolute community; (3) Conjugal partnership of gains; (4) Complete separation of property; (5) Donations by reason of marriage; and (6) Comparison of the various types of property relations between spouses. This post is Part 2.

What is the system of absolute community?

This is one of the regimes or systems of property relations between the spouses and the default system in the absence of a prenuptial agreement or when the agreed system is null and void. This system commences at the precise moment that the marriage is celebrated, and any stipulation for the commencement of the community regime at any other time is void.

In a nutshell, the husband and the wife are considered as co-owners of all properties they bring into the marriage (those that they owned before the marriage), as well as the properties acquired during the marriage, except for certain properties express excluded by law (listed below). The rules on co-ownership applies in all matters not provided under the Family Code.

What constitutes community property?

Unless otherwise provided by law or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. Property acquired during the marriage is PRESUMED to belong to the community, unless it is proved that it is one of those excluded therefrom.

What properties are excluded from the community property?

(1) Property acquired during the marriage by gratuitous title (by donation and by testate/intestate succession) by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property;

(2) Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community property;

(3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property.

Can a spouse waive his/her share in the community property during marriage?

No. Except in case of judicial separation of property, any waiver of rights, shares and effects of the absolute community of property during the marriage can be made.

What are the charges and obligations of the absolute community?

The absolute community of property shall be liable for:

(1) The support of the spouses, their common children, and legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of the Family Code on Support;

(2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other;

(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited;

(4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property;

(5) All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family;

(6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement;

Friday, October 07, 2011

Heirs and inheritance (Part 8): Do inherited properties belong exclusively to the spouse who inherited them or to both spouses?

Answer: It depends on what system of property relations governs the spouses, whether absolute

community of property (ACP), conjugal partnership of gains (CPG), or complete separation of

property.

For Filipinos who got married after August 3, 1988 (the date the Family Code of the Philippines

became effective), their system is most probably absolute community of property. Why? Because

most Filipinos get married without knowing that they can choose their system of property relations.

Under the system of absolute community of property, all properties belonging to the man and

woman, at the time of the celebration of their marriage, automatically become part of their

community property (seeArticle 91 of the Family Code). All properties acquired during their marriage

are also community property, with certain exceptions underArticle 92.

So, assuming that the system of property relations between you and your spouse is absolute

community of property (ACP):

If then

(1) you inherited the propertybefore the marriage …

it is part of the community property, even if:

the title to the property still remains in the name of the person from whom you inherited the property;

the title to the property has been transferred to your name; or

the property remains titled in your name all throughout your marriage.

(2) you inherited the propertyduring the marriage …

it is not part of the community property since it was acquired by gratuitous title as provided under Article 92 of the Family Code; the exception is when the testator (the person who gave you the property through a last will) expressly provided that it will be community property.

(7) Ante-nuptial debts (debts contracted before the marriage) of either spouse insofar as they have redounded to the benefit of the family;

(8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement;

(9) Ante-nuptial debts of either spouse other than those falling under No. 7 above, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and

(10) Expenses of litigation between the spouses unless the suit is found to be groundless.

If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties.

If a spouse incurs gambling loses in a casino, can he/she charge the amount to the community property?

No. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall

not be charged to the community but any winnings therefrom shall form part of the community property.

Who administers and enjoys the community property?

Both spouses jointly enjoy the administration and enjoyment of the community property. In case of disagreement, however, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration.

These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

What is the rule on disposition of properties of the spouses?

Either spouse may dispose by will of his or her interest in the community property. This is possible because the will takes effect only upon the death. However, neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress.

When is the absolute community terminated?

(1) Upon the death of either spouse;(2) When there is a decree of legal separation;(3) When the marriage is annulled or declared void; or(4) In case of judicial separation of property during the marriage.

What happens if the spouses separate in fact?

The separation in fact or separation de facto (as opposed to legal separation), between husband and wife shall not affect the regime of absolute community, except that:

(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

(2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

(3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share.

Is separation de facto different from abandonment?

Yes. In a separation de facto, the spouses may still be complying with their duty to support each other and their children. The rule in case of abandonment is provided below.

What if a spouse abandons the other?

If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family (“obligations to the family” refer to marital, parental or property relations), the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose.

A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

What is the procedure after the dissolution of the absolute community regime?

(1) An inventory shall be prepared, listing separately all the properties of the absolute community and the exclusive properties of each spouse.

(2) The debts and obligations of the absolute community shall be paid out of its assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties in accordance with the provisions of the second paragraph of Article 94 of the Family Code.

(3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.

(4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share provided in the Family Code. For purpose of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution.

(5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51 of the Family Code.

(6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there in no such majority, the court shall decide, taking into consideration the best interests of said children.

If a spouse dies, how is the community property liquidated?

Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement

proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within six months from the death of the deceased spouse.

What happens if the foregoing procedure in the immediately preceding paragraph is not carried out?

If the procedure on liquidation, as outlined above, is not followed: (a) any disposition or encumbrance involving community property by the surviving spouse shall be void; and (b) any subsequent marriage shall be governed by the mandatory regime of complete separation of property.

Marriage Settlement and Property Regimes

1.      What is a marriage settlement?A marriage settlement is an agreement executed between two parties who plan to get married, in preparation for the property regime that would govern their conjugal property during the marriage. Such agreements are also commonly known as “Pre-Nuptial Agreement”. 

“The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gain, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern.” (Article 75 of the Family Code of the Philippines) 

2.      What is a property regime?A property regime is the set of rules agreed upon by the parties, before getting married, which would govern their property relations during the course of their married life.

 

3.      What are the different kinds of property regimes in the Philippines?There are three kinds of property regimes which are recognized by the laws of the Philippines:

1. Regime of Absolute Community of Property2. Regime of Conjugal Partnership of Gains3. Regime of Complete Separation of Properties

 

4.      Explain the Regime of Absolute Community of Property.In the Regime of Absolute Community of Property, the husband and the wife become co-owners of all the properties that they bring into the marriage and those acquired by either or both of them during the course of their marriage, save for some exceptions. (Article 90 of the Family Code of the Philippines)The administration and enjoyment of the community property shall belong to both the spouses jointly. (Article 96 of the Family Code)Neither spouse may donate any community property without the consent of the other. (Article 98 of the Family Code)The Regime of the Absolute Community of Property is the default property regime that would govern the property relations of a couple who had not executed a marriage settlement prior to their marriage.

 

5.      Explain the Regime of Conjugal Partnership.In Regime of Conjugal Partnership of Gains, the husband and the wife retain ownership over their respective properties. The Parties place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance. Upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise stated in the marriage settlements. (Article 106 of the Family Code of the Philippines)The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly.(Article 124 of the Family Code of the Philippines)Neither spouse may donate any conjugal partnership property without the consent of the other.(Article 125 of the Family Code of the Philippines) 6.      Explain the Regime of Complete Separation of Properties.In the Regime of Complete Separation of Properties, each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all the earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. (Article 145 of the Family Code of the Philippines)The Parties are free to manage their respective properties without interference from the other spouse. Likewise, the Parties are also free to donate without interference of the other.

7.      What is the conjugal partnership responsible for?The conjugal partnership shall be liable for:

a)      The support of the spouse, their common children and the legitimate children of either spouse; however, the support of the illegitimate children shall be governed by the provisions on this Code on Support;

b)      All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the conjugal partnership of gains, or by both spouses, or by one of them with the consent of the other;

c)      Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have benefited;

d)      All taxes, liens, charges and expenses, including major and minor repairs upon the conjugal partnership property;

e)      All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse;

f)       Expenses to enable either spouse to commence or complete a professional, vocational or other activity for self-improvement;

g)      Antenuptial debts of either spouse insofar as they have redounded to the benefit of the family;

h)      The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational or other activity for self-improvement, and

i)        Expenses of litigation between the spouses unless the suit is found to be groundless.

 

If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties.

 

8.      Are we required to have a marriage settlement to get married?No, it is not mandatory that couples planning to get married must execute a marriage settlement. Absent of a marriage settlement, the property regime that would govern the property relations, as stated in the Family Code of the Philippines, would be “Absolute Community of Property”. 9.      When should the marriage settlement be executed by the Parties?The marriage settlement should be executed prior to the celebration of the marriage of the Parties, for the marriage settlement to be valid. (Article 76 of the Family Code of the Philippines) 

10.  What if the couple decided after their marriage to execute a marriage settlement?The marriage settlement would not be valid. For the marriage settlement to be valid, it must be executed prior to the celebration of the marriage. Any other time after the celebration of the marriage, would render the marriage settlement as void.

 

11.  What if the couple decides to modify their valid and existing marriage settlement after the celebration of their marriage?Likewise, any modifications to the marriage settlement must be done prior to the celebration of the marriage, for the modifications to be valid. Any later, after the celebration of the marriage, would render the modification to the marriage settlement as void and it would not be applied to the marriage settlement. (Article 76 of the Family Code of the Philippines) 

Post-marriage modification of marriage settlements can take place only where:

(a) The absolute community or conjugal partnership was dissolved and liquidated upon a decree of legal separation;

(b) The spouses who were legally separated reconciled and agreed to revive their former property regime;

(c) Judicial separation of property had been had on the ground that a spouse abandons the other without just cause or fails to comply with his obligations to the family;2

(d) There was judicial separation of property under Article 135; or

(e) The spouses jointly filed a petition for the voluntary dissolution of their absolute community or conjugal partnership of gains.

 

12.  When would the property regime commence?The property regimes shall commence at the precise moment that the marriage is celebrated.

 

13.  Can the Parties stipulate some other time, apart from the celebration of the marriage, for the property regime to commence?No, the property regime will only commence at the celebration of the marriage and no other time. Any stipulation contrary to this would be contrary to law which provides that any stipulation, express or implied, for the commencement of the property regime at any other time shall be void.(Article 88 of the Family Code of the Philippines) 14.  Is there a need for the marriage settlement executed by the Parties be registered in a specific government agency?No, there is no need for the Parties to register the marriage settlement in a specific government agency. Because the marriage settlement is between the Parties, it is valid because it is in the nature

of a contract. Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith. (Article 1159 of the New Civil Code of the Philippines)However, the marriage settlement shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of properties. (Article 77 of the Family Code of the Philippines) 

15.  Can the spouses mutually agree to dissolve their conjugal partnership?Yes. The husband and the wife may agree upon the dissolution of the conjugal partnership during marriage, subject to judicial approval. All the creditors of the husband and of the wife, well as of the conjugal partnership, shall be notified of any petition for judicial approval of the voluntary dissolution of the conjugal partnership, so that any such creditors may appear at the hearing to safeguard his interests. Upon approval of the petition for dissolution of the conjugal partnership, the court shall take such measures as may protect the creditors and other third persons. (Article 191 of the New Civil Code of the Philippines) 16.  What are the instances that a spouse may ask for judicial separation, as stated under Article 135?Under Article 135, a spouse may petition the court for judicial separation of property in case of the following instances below:a)      That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;

b)      That the spouse of the petitioner had been judicially declared an absentee;

c)      That loss of parental authority of the spouse of the petitioner has been decreed by the court;

d)      That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101;

e)      That the spouse granted the power of administration in the marriage settlement has abused that power;

f)       That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable.

 

17.  If I had gotten married without making any marriage settlement or pre-nuptial agreement, would there be a property regime that would govern our property relations?In the absence of a marriage settlement or a pre-nuptial agreement between the Parties, the Regime of Absolute Community of Property would govern the property relations of the Parties.

 

18.  If we did not execute any marriage settlement before our marriage, may we still change our property relations during our marriage?No, any modifications to the marriage settlement must be made before the celebration of the marriage, for the modifications and changes to be valid. (Article 76 of the Family Code of the Philippines)However, the Parties may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties during their marriage. (Article 136 of the Family Code of the Philippines) 19.  I had executed a marriage settlement with my fiancé but our marriage did not push through. What will happen to the marriage settlement agreed between us?

The marriage settlement would be rendered void because the consideration of a marriage settlement is the marriage itself. However, if there are provisions or stipulations in the marriage settlement that does not depend upon the occurrence of the marriage, those stipulations shall be valid.

 

20.  I got married to my husband on 04 January 1986, without making a pre-nuptial agreement. Which property regime would govern our property relations, considering that the Family Code had not yet been enacted?For marriages that were celebrated before the enactment of the Family Code, the marriage would fall under the Civil Code. Under the Civil Code, the default property regime, in the absence of a pre-nuptial agreement, is the “Conjugal Partnership of Gains.” 

21.  I recently married my husband, an American citizen and we executed a pre-nuptial agreement. Would the pre-nuptial agreement be binding in the Philippines, despite the fact both our marriage and the marriage settlement, was celebrated in the United States?Yes, the pre-nuptial agreement between both of you would be valid. The property relations of the spouses shall be governed by the Philippine laws, barring any contrary stipulations in the marriage settlement, regardless of the place of celebration of the marriage and the residence of the spouses.(Article 80 of the Family Code of the Philippines) 22.  I already owned a condo and a small farm when I met my husband. We did not execute a marriage settlement. What will happen to my properties?Your condo and the farm would be deemed part of the community property in the absence of any marriage settlement executed prior to the marriage. 

23.  I am a single father who has 3 children and owns a house and lot and a gas station. I recently married my new wife without executing a marriage settlement. What will happen to my properties?The house and lot as well as the gas station would be excluded from the community property.

This is because, properties acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such properties, are deemed excluded from the community properties. (Article 92(3) of the Family Code of the Philippines) 24.  In our marriage settlement, my husband and I elected to have Conjugal Partnerships of Gains as the property regime that would govern our property relations in our marriage. Which properties would belong to me exclusively?Each spouse would retain the ownership, possession, administration, and enjoyment of their exclusive properties. (Article 110 of the Family Code of the Philippines) The following are the exclusive properties of each spouse:

1. Those properties that each spouse had brought to the marriage as their own;2. Those properties which had been acquired by the spouses during the marriage by gratuitous

title;3. Those properties which had been acquired by right of redemption, by barter or by exchange

with property belonging to only one of the spouses; and4. Those properties which had been purchased with the exclusive money of the spouse.

(Article 109 of the Family Code of the Philippines) 25.  My husband and I did not execute a marriage settlement. After our wedding, my brother donated a condo to me alone. To whom would the condo belong?

The condo would belong to you alone. Property acquired during marriage by gratuitous title by either spouse is deemed executed from the community property. (Article 92 (1) of the Family Code of the Philippines) 26.  What about the debts of my husband incurred from gambling, if we have no marriage settlement?You will not be liable for the debts of your husband incurred from gambling. Whatever your husband lost during your marriage in any game of chance or in betting, sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be borne by him and shall not be charged to the properties owned in common. (Article 95 of the Family Code of the Philippines) 27.  I recently found out that my husband had taken out a huge loan. Will our conjugal properties be liable for his loan, despite the fact I had no knowledge of it nor was a party?No. The conjugal property should not be liable to the personal loan taken out by your husband. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal properties partnership except insofar as they redounded to the benefit of the family. (Article 122 of the Family Code of the Philippines) 28.  What if the loan was used for the construction of our house?If the loan was taken out for the construction of the family house, the conjugal properties may be liable, despite the fact that you had no knowledge of the loan. (Article 122 of the Family Code of the Philippines) 29.  What if my husband had been arrested and is ordered to pay a fine of Ten Thousand Pesos (PhP10,000.00), will the amount be taken out of our conjugal properties?No. The amount for the fine would not be applied to the conjugal property.

The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal properties partnerships except insofar as they redounded to the benefit of the family.

Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.(Article 122 of the Family Code of the Philippines) 30.  What happens if my husband had no other property or money apart from our conjugal property?If your husband had no other property or money apart from the conjugal property, the debt or the fine may be applied to your conjugal property.

The payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the responsibilities enumerated in the preceding Article have been covered, if the spouse who is bound should have no exclusive property or if it should be insufficient; but at the time of the liquidation of the partnership, such spouse shall be charged for what has been paid for the purpose above-mentioned.

 

31.  My fiancé had recently been imprisoned and one of his penalties is civil interdiction. Can we still execute a marriage settlement?Yes. However, the guardian, who would be appointed by the court, of the party suffering from civil interdiction shall be made a party to the written marriage settlement. (Article 79 of the Family Code of the Philippines) 32.  I had recently reconciled with my husband. However, we had been legally separated for about 10 years now. Are we allowed to revive the property regime that was subsisting during our marriage, despite the fact that we had been legally separated?

Yes. You can revive the property regime that was in existence during your marriage as your situation falls under one of the cases that a post-marriage modification may take place, specifically, “The spouses who were legally separated reconciled and agreed to revive their former property regime.”

 

33.  My partner and I had been living for some time without the benefit of marriage and we had acquired a house and lot for our family. What property regime would govern our properties?When parties who are capacitated to contract marriage live together as man and wife without the benefit of marriage or under a void marriage, they are deemed as co-owners in the equal share of their wages, salaries and properties. (Article 147 of the Family Code of the Philippines) 34.  I had been living with my girlfriend for 5 years and I am the sole breadwinner. Does she have any share in my income despite the fact we are not married?Yes. Under the law, the care and maintenance expressed by your girlfriend towards you, your family and your home are deemed as her contribution to the union between both of you.

In absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. (Article 147 of the Family Code of the Philippines) 35.  What if my partner was still married to her husband and we had acquired properties?The properties that both of you had acquired would be deemed as under a co-ownership with you and your partner as the co-owners in proportion to your respective contributions. Absent proof of actual contributions, the contributions and corresponding shares shall be deemed equal. However, since your partner still has a subsisting marriage, his share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in his marriage.

 

36.  My marriage to my ex-husband had been recently declared by the courts as void. What will happen to our properties acquired during the time of cohabitation?According to Article 147 “When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife, without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. In absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof in the former’s efforts consisted in the care and maintenance of the family and the household. xxx” This particular kind of co-ownership applies when a man and a woman, suffering no legal impediment to marry each other, so exclusively live together as husband and wife under a void marriage or without the benefit of marriage. Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall be considered as having contributed thereto jointly if said party’s “efforts consisted in the care and maintenance of the family household.” Unlike the conjugal partnership of gains, the fruits of the couple’s separate property are not included in the co-ownership. (Valdez vs. RTC, Branch 102, Quezon City, G.R. No. 122749, 31 July 1996) 37.  What if my husband knew all along that our marriage was void, what will happen to our properties?

The share of the party who is in bad faith shall be forfeited in favor of the common children. However, if the union produced no children or if the common children or their descendants waive their right to their respective share, the properties shall belong to you. (Article 147 of the Family Code of the Philippines) 

The system of Absolute Community of Property requires that all

property owned by the spouses at the time of the celebration of

the marriage or acquired thereafter shall be considered as

belonging jointly to the husband and wife, except the following:

1. Property acquired during the marriage by gratuitous title

(through donation or inheritance) by either spouse, and the

fruits as well as the income thereof, if any, unless it is

expressly provided by the donor, testator or grantor that they

shall form part of the community property;

2. Property for personal and exclusive use of either spouse.

Jewelry shall form part of the community of property.

3. Property acquired before the marriage by either spouse who

has legitimate descendants by a former marriage and all the

fruits and income, if any, of such property.

Under this system, the ownership, administration and use of the

fruits (rental income and dividends) belong to the spouses jointly.

In addition, sale, transfer and disposal of any of the community

property shall be done with the consent of both spouses.

Here are some basic rules regarding the effect of marriage to property relationship…

In case there is a pre-nuptial agreement that separates the properties of spouses, the terms and conditions within that pre-nuptial agreement shall apply.

Any property donated or inherited or given via gratuitous act to either spouse within their marriage, the receiving spouse shall exclusively own that said property.

As a general rule, spouses cannot donate, sell, mortgage, lease, or exchange properties to each other. If the spouses’ properties are separated by a pre-nuptial agreement, either spouse cannot donate more

than one-fifth (1/5) of his or her property to the other spouse. Local customs and traditions, and/or religious beliefs that govern the effects of marriage to property

relations may apply in special cases. Example: Indigenous Tribal marriage or Muslim marriage.

We often hear this phrase when pertaining to a property owned by a married couple as “That’s their CONJUGAL PROPERTY.”

But what is CONJUGAL PROPERTY? IS IT STILL APPLICABLE TODAY?

The law on CONJUGAL PARTNERSHIP OF GAINS of Properties in simple terms shall be like this…

 

Any property acquired before the husband got married shall be exclusively his. Any property acquired before the wife got married shall be exclusively hers. When the man and woman get married their exclusive properties shall be joined-together as part of

one estate within the CONJUGAL PROPERTY and the “FRUITS” of those properties shall be shared between the husband and wife for the duration of their marriage.

Any property acquired during their marriage shall be considered part of the CONJUGAL PROPERTY and shall be equally owned by the husband and wife.

Should the the husband and wife file for LEGAL SEPARATION, DIVORCE OR ANNULMENT, the exclusive property of the husband which he acquired before the marriage and all its’ fruits, shall be taken out of the CONJUGAL PROPERTY and will be again solely owned by him; and likewise the exclusive property of the wife and all it’s fruits, which she acquired before the marriage shall again be solely owned by her.

Also, in case of LEGAL SEPARATION, DIVORCE OR ANNULMENT, and the spouses filed for SEPARATION OF PROPERTIES in court, the properties acquired by both or any of the spouses during their marriage shall be considered part of  their CONJUGAL PROPERTY and shall be split in half between the husband and the wife.

In this this scenario, should there be no Judicial Separation of Properties, when the married couple get estranged, either of the spouses can sell, lease, mortgage, exchange or joint-venture their exclusive properties acquired before their marriage, even without the consent of the other spouse. If the property was acquired within the marriage, notarized written consent from both spouses is still needed to sell, mortgage, lease, exchange, donate or joint-venture the Conjugal Property.

 

EXECUTIVE ORDER 209, or THE FAMILY CODE OF THE PHILIPINES was enacted as a law by then President Corazon Aquino in July 6, 1987.

Hence, Filipinos who were married after that date are now covered by this law.

The Family Code of the Philippines states that, in the absence of a “Marriage Settlement” or what is commonly known as “Pre-nuptial agreement” that separates the properties of the spouses married after the enactment of the Family Code, their properties shall no longer be governed by the law on CONJUGAL PROPERTY but by the regime ofABSOLUTE COMMUNITY OF PROPERTY.

Absolute Community of Property in simple terms would be like this…

All properties acquired by the spouses before their marriage, and all properties acquired during their marriage shall be considered part of one whole estate of the ABSOLUTE COMMUNITY OF PROPERTY owned by both spouses.

All properties donated, inherited and/or properties given gratuitously to either of the spouse before their marriage shall also be considered as part of the ABSOLUTE COMMUNITY OF PROPERTY once they get married, and shall be owned by both spouses.

IN CASE OF LEGAL SEPARATION, DIVORCE OR ANNULMENT, the regime of ABSOLUTE COMMUNITY OF PROPERTY shall not be affected and will remain owned by both spouses, unless the spouses FILED FOR JUDICIAL SEPARATION OF PROPERTIES

In case the spouses filed Judicial Separation of Properties, the properties within the Absolute Community of Properties shall be split in half between the husband and the wife.

 

In this scenario all properties acquired before and during the marriage of either and both spouses shall be considered as part of one whole estate of the Absolute Community of Property. Therefore, notarized written consent from both spouses shall be needed in order to sell, mortgage, lease, exchange, donate and joint-venture any real property that belongs to the ABSOLUTE COMMUNITY OF PROPERTY.

 

Unless there is a Judicial Separation of Property, even if the spouses get estranged, separated, divorced or their marriage annulled, it will not affect the regime of absolute community of property, hence notarized written consent from both spouses shall be needed to sell, mortgage, lease, exchange, donate and/or joint-venture the said property.

 

What if the Filipino was married to foreigner?

Read more details about it here —>CAN FOREIGNERS OWN PHILIPPINE PROPERTIES?

 

I encountered so many cases wherein certain properties could not be sold, mortgaged, exchanged, donated or joint-ventured simply because the spouses got estranged, and/or the other spouse is no where to be found, or the spouses would not want to speak to each other anymore.

 

We often hear lovers always say that they would give their life and their all to their loved one. But in many cases, after the separation, divorce or annulment, spouses wouldn’t want to give half of what they own to their estranged partner!

My advice to engaged couples about to be married are these:

1. Put aside P200,000.00 in a secured savings bank in case the couple separated, they’ll have money to spend for their annulment proceedings.

2. Both parties should agree to a marriage settlement, that clearly defines “who-owns-what”, to avoid more trouble in case they be separated, divorced or annulled in the future.

3. Make sure to prepare a notarized will before any of the spouse dies so that the heirs would know exactly what to do with the inheritance left by the deceased partner.

 

What if one or both spouses died? —>WHO INHERITS WHAT? - info on inheritance laws and inheritance taxes in the Philippines.

Read more:http://www.philippinesangeles.com/who-owns-the-property-the-husband-or-the-wife/#ixzz3q87wLVTX