c. Property Regimes

Commencement of Property Regime

A property regime commences at the precise moment of the celebration of the marriage (i.e. actual time the marriage is celebrated on a certain date).

Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. (FC, Art. 88)

Exceptions:

• When a separation of property was agreed upon in the marriage settlement (Art. 1490)
• When there has been a judicial separation of property under the Family Code (FC, Arts. 134–136; see also Civil Code, Art. 1490)

The sale of conjugal property by a spouse without the other's consent is void. All subsequent transferees of the conjugal property acquire no rights whatsoever from the conjugal property's unauthorized sale. (Malabanan v. Malabanan, Jr., G.R. No. 187225, 2019)

Property Relation Governing the Donation

GR: Absolute Community Property. (FC, Art. 75)

Revival of previous property regime after reconciliation

Reconciliation does not automatically revive the former property regime of the spouses. If the spouses want to revive the previous property regime, they must execute an agreement to revive the former property regime, which agreement shall be submitted in court, together with a verified motion for its approval. (FC, Art. 67)

The agreement to revive must be under oath and specify:

• The properties to be contributed anew to the restored regime;
• Those to be retained as separated properties of each spouse; and
• The names of all their known creditors, their addresses and the amounts owing to each. (Pineda, 2008)

Laws that govern the absolute community of property:

• Family Code
• Civil Code provisions on co-ownership

Properties excluded in the Absolute Community

• Property acquired during the marriage by gratuitous title and its fruits as well as income thereof, unless the grantor expressly provides that they shall form part of the community property; (FC, Art. 92)
• Property for personal and exclusive use of either spouse but jewelries shall form part of the ACP because of their monetary value; (FC, Art. 92)
• Property acquired before the marriage by one with legitimate descendants by former marriage and its fruits and income, if any; (FC, Art. 92)
• Property excluded from the community by the marriage settlements. (FC, Art. 91)

Insufficiency of the community property to cover liabilities

GR: The spouses shall be solidarily liable for the unpaid balance with their separate properties.

XPN: Those falling under paragraph 9 of Art. 94. of the Family Code (Ante-nuptial debts, support of illegitimate children, liabilities incurred by spouse by reason of a crime or quasi-delict) – in which case the exclusive property of the spouse who incurred such debts will be liable. However, if the exclusive property is insufficient, payment will be considered as advances to be deducted from share of debtor- spouse. (FC, Art. 94 [9])

OWNERSHIP, ADMINISTRATION, ENJOYMENT AND DISPOSITION OF THE ABSOLUTE COMMUNITY PROPERTY

Administration of Community Property

GR: The administration of community property belongs to both spouses jointly.

Separation in fact between husband and wife (FC, Art. 100)

GR: Such separation does not affect the regime of absolute community.

DISSOLUTION OF ABSOLUTE COMMUNITY REGIME

Dissolution of Absolute Community Property

Absolute Community Property is terminated by: (FC, Art. 99)

• Death of either spouse; NOTE: If the surviving spouse contracts another marriage without compliance with the foregoing requirement, a mandatory regime of complete separation shall govern the property relations of the subsequent marriage. If, upon the lapse of one year from the death of a spouse, no liquidation has been made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. (FC, Art. 103)The reason for the law is that, the law seeks to protect the children's interest in the first marriage. (Albano, 2013)
• Legal separation;
• Annulment;
• When the marriage is declared void;
• Judicial separation of property during marriage. (FC, Art. 99)

NOTE: The absolute community of property or the conjugal partnership is considered dissolved only upon the issuance of the judicial decree of separation, not at the moment when the parties enter into a compromise agreement in the course of the proceedings for separation of property. (Albano, 2013)

Consequences of failure to liquidate within 1 year

• Failure to liquidate the community property within 1 year from the death of the deceased spouse contrary to Art. 103 of the Family Code, would render any disposition or encumbrance involving community property of the terminated marriage void.
• If the surviving spouse contracts a subsequent marriage without compliance with the foregoing requirements, the subsequent marriage shall be governed, mandatorily, by a regime of complete separation of property. (Rabuya, 2006)

Conjugal Partnership of Gains Regime – Family Code, arts. 105- 133

Art. 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership gains shall govern their property relations during marriage, the provisions in this Chapter shall be of supplementary application.

The provisions of this Chapter shall also apply to conjugal partnerships of gains already established between spouses before the effectivity of this Code, without prejudice to vested rights already acquired in accordance with the Civil Code or other laws, as provided in Article 256. (n)

Art. 106. Under the regime of conjugal partnership of gains, the husband and wife 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, and, 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 agreed in the marriage settlements. (142a)

Art. 107. The rules provided in Articles 88 and 89 shall also apply to conjugal partnership of gains. (n)

Art. 108. The conjugal partnership shall be governed by the rules on the contract of partnership in all that is not in conflict with what is expressly determined in this Chapter or by the spouses in their marriage settlements. (147a)

Section 2. Exclusive Property of Each Spouse

Art. 109. The following shall be the exclusive property of each spouse:

(1) That which is brought to the marriage as his or her own;

(2) That which each acquires during the marriage by gratuitous title;

(3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and

(4) That which is purchased with exclusive money of the wife or of the husband. (148a)

Art. 110. The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties.

Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place the property is located. (137a, 168a, 169a)

Art. 111. Either spouse may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property. (as amended by R.A. 10572, dated May 24, 2013)

Art. 112. The alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse. (n)

Art. 113. Property donated or left by will to the spouses, jointly and with designation of determinate shares, shall pertain to the donee-spouses as his or her own exclusive property, and in the absence of designation, share and share alike, without prejudice to the right of accretion when proper. (150a)

Art. 114. If the donations are onerous, the amount of the charges shall be borne by the exclusive property of the donee spouse, whenever they have been advanced by the conjugal partnership of gains. (151a)

Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall be governed by the rules on gratuitous or onerous acquisitions as may be proper in each case. (n)

Section 3. Conjugal Partnership Property

Art. 116. All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved. (160a)

Art. 117. The following are conjugal partnership properties:

(1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses;

(2) Those obtained from the labor, industry, work or profession of either or both of the spouses;

(3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse;

(4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found;

(5) Those acquired through occupation such as fishing or hunting;

(6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and

(7) Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loser-spouse. (153a, 154a, 155, 159)

Art. 118. Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership. (n)

Art. 119. Whenever an amount or credit payable within a period of time belongs to one of the spouses, the sums which may be collected during the marriage in partial payments or by installments on the principal shall be the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal partnership. (156a, 157a)

Art. 120. The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following rules:

When the cost of the improvement made by the conjugal partnership and any resulting increase in value are more than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership, subject to reimbursement of the value of the property of the owner-spouse at the time of the improvement; otherwise, said property shall be retained in ownership by the owner-spouse, likewise subject to reimbursement of the cost of the improvement.

In either case, the ownership of the entire property shall be vested upon the reimbursement, which shall be made at the time of the liquidation of the conjugal partnership. (158a)

Section 4. Charges Upon and Obligations of the Conjugal Partnership

Art. 121. The conjugal partnership shall be liable for:

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

(2) 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;

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

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

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

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

(7) Antenuptial debts 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; and

(9) 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. (161a)

Art. 122. The payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership 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.

However, 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. (163a)

Art. 123. Whatever may be lost during the 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 the loser and shall not be charged to the conjugal partnership but any winnings therefrom shall form part of the conjugal partnership property. (164a)

Section 5. Administration of the Conjugal Partnership Property

Art. 124. The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, 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 conjugal 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. (165a)

Art. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress. (174a)

Section 6. Dissolution of Conjugal Partnership Regime

Art. 126. The conjugal partnership terminates:

(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 under Articles 134 to 138 (175a)

Art. 127. The separation in fact between husband and wife shall not affect the regime of conjugal partnership, 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 conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon 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. (178a)

Art. 128. If a spouse without just cause abandons the other or fails to comply with his or her obligation to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the conjugal partnership property, subject to such precautionary conditions as the court may impose.

The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations.

A spouse is deemed to have abandoned the other when he 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. (167a, 191a)

Section 7. Liquidation of the Conjugal Partnership Assets and Liabilities

Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply:

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

(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof.

(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership.

(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal 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 second paragraph of Article 121.

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

(6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any.

(7) The net remainder of the conjugal partnership properties shall constitute the profits, 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 or forfeiture of such share as provided in this Code.

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

(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, 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 is no such majority, the court shall decide, taking into consideration the best interests of said children. (181a, 182a, 183a, 184a, 185a)

Art. 130. Upon the termination of the marriage by death, the conjugal partnership 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 conjugal partnership property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n)

Art. 131. Whenever the liquidation of the conjugal partnership properties of two or more marriages contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and income of each partnership shall be determined upon such proof as may be considered according to the rules of evidence. In case of doubt as to which partnership the existing properties belong, the same shall be divided between the different partnerships in proportion to the capital and duration of each. (189a)

Art. 132. The Rules of Court on the administration of estates of deceased persons shall be observed in the appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in this Chapter. (187a)

Art. 133. From the common mass of property support shall be given to the surviving spouse and to the children during the liquidation of the inventoried property and until what belongs to them is delivered; but from this shall be deducted that amount received for support which exceeds the fruits or rents pertaining to them. (188a)

It is the property relation formed by the husband and the wife by placing in a common fund: (FC, Art. 106)

• The proceeds, product, fruits and income of their separate properties;
• Those acquired by either or both of them through:
• Effort – an activity or undertaking which may or may not be rewarded;
• Chance – activities like gambling or betting.

Only inchoate right over conjugal property

The interest of the spouses in the conjugal properties is only inchoate or a mere expectancy and does not ripen into title until it appears the dissolution and liquidation of the partnership that there are net assets. (Sempio-Diy, 1995)

Q: Melinda is the widow of Jose. In December 18, 1984, they acquired a 310-square meter lot. Subsequently, a TCT was issued to "Jose, married to Melinda," covering the disputed property. Melinda discovered that the TCT had long been canceled through a string of transactions, and that the property was registered under the name of Spouses Montano. Jose claimed that he acquired the property by gratuitous title during marriage, that it was therefore excluded from the conjugal partnership of gains, and that, as his exclusive property, he could dispose of it without Melinda's consent. Is the property in dispute a conjugal property?

A: YES, it is a conjugal property. The circumstances here transpired prior to the effectivity of the Family Code on August 3, 1988. Thus, petitioner and Jose's marriage and property relations are governed by the Civil Code.

Under Articles 153 and 160 of the Civil Code, property acquired during marriage is presumed to be conjugal. What must be established is that the property was acquired during marriage. Here, its acquisition during marriage was established, but Jose's asserted acquisition by gratuitous title was not established. Only through "clear, categorical, and convincing" proof to the contrary will it be considered the paraphernal property of one (1) of the spouses. (Melinda M. Malabanan V. Francisco Malabanan, Jr., Spouses Ramon and Prescila Malabanan, and Spouses Dominador III And Guia Montano, G. R. No. 187225, March 06, 2019, as penned by J. Leonen)

What are considered exclusive properties of the spouses under the CPG (Art. 109, FC):

• Those brought into the marriage as his/her own;

NOTES:

• A property purchased before the marriage and fully paid during the marriage remains to be a separate property of either spouse. (Lorenzo v. Nicolas, G.R. No. L-4085, July 30, 1952)
• The net fruits of either spouse's exclusive property shall be included in the conjugal partnership (Art. 117(3), FC).
• Those designated as separate property in the marriage settlements under the rules governing marriage settlements and the conjugal partnership of gains (Arts. 75 and 109, FC);
• Those acquired during the marriage by gratuitous title;

NOTES:

• Pensions will not form part of the conjugal partnership of gains when it is given to him voluntarily and he is not entitled as a matter of right such as a fruit of industry or labor.
• Proceeds of life insurance policy will not form part of the conjugal partnership of gains when the beneficiary of the life insurance is the estate and the premiums are sourced from the separate property of the spouse.
• Retirement Benefits will not form part of the conjugal partnership of gains when it is given to him voluntarily and he is not entitled as a matter of right such as a fruit of industry or labor.
• Those acquired by right of redemption, barter or exchange with exclusive property;

NOTE: In right of redemption, for it to form part of the exclusive property of the spouse, the ownership over such property must still pertain to the said spouse.

• That purchased with exclusive money of either spouse.

NOTE: The controlling factor is the source of the money used, or the money promised to be paid.

Presumption of inclusion of property in the Conjugal Partnership of Gains

GR: All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal.

XPN: Unless the contrary is proved.

Composition of CPG under Art. 117, FC:

• Those acquired by onerous title during the marriage with conjugal funds;

Requisites:

• Acquisition is made during the marriage,
• Thru onerous title,
• At the expense of common fund;
• Livestock in excess of what was brought to the marriage;
• Those acquired by chance such as winnings from gambling or betting;
• Those obtained from labor, industry, work or profession of either or both spouses;
• Fruits of conjugal property due or received during the marriage and net fruits of separate property; NOTE: Net fruits refer to the remainder of the fruits after deducting the amount necessary to cover the expenses of administration of said exclusive property.
• Share of either spouse in hidden treasure; and
• Those acquired through occupation such as hunting or fishing. (FC, Art. 117)

Property bought through installment (FC, Art. 118)

Requisites:

• Property bought on installments and paid partly from exclusive funds and partly from conjugal funds belongs to the buyer or buyers if full ownership vested before the marriage.
• If full ownership vested during the marriage, it belongs to the conjugal partnership. In either case, amounts advanced by the conjugal partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership (Family Code, Art. 118).

Effect if properties were registered during the marriage

The fact that the properties were registered in the name of the spouses is no proof that the properties were acquired during the marriage. It is well-settled that the registration does not confer title but merely confirms one already existing. (Jocson v. CA, G.R. No. L-55322, February 16, 1989)

Q: H & W got married on October 1926. H subsequently cohabited with X. During the cohabitation of H with X, H acquired certain properties and places his status as single. What is the nature of said properties?

A: THEY ARE CONJUGAL PROPERTIES. Whether a property is conjugal is determined by law and not by the will of one of the spouses. No unilateral declaration by one spouse can change the character of conjugal property. The clear intent of H in placing his status as single is to exclude W from her lawful share in the conjugal property. The law does not allow this. The cohabitation of a spouse with another person, even for a long period, does not sever the tie of a subsisting previous marriage H and X’s cohabitation cannot work to the detriment of W as the legal spouse. The marriage of H and W continued to exist regardless of the fact that H was already living with X. Hence, all property acquired from the date of their marriage until the death of W are presumed conjugal. It was neither claimed nor proved that any of the subject properties was acquired outside or beyond this period. (Villanueva v. CA, G.R. No. 143286, April 14, 2004)

Q: Suppose a property was acquired by one spouse while they were living separately, is this property conjugal or not?

A: It is presumed to be conjugal. All property acquired during the marriage regardless of whether the spouses are living together or not, are presumed to be conjugal property. (Flores v. Escudero, G.R. No. L-5302, March 11, 1953)

CHARGE UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP OF GAINS (CPG)

• Support of the spouses, their common children and the legitimate children of either spouse;
• Debts and obligation by one without the consent of the other to the extent of the family benefited;
• 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;
• Taxes, liens, charges, expenses, including major or minor repairs upon conjugal property;
• Taxes and expenses for mere preservation made during the marriage of separate property;
• Expenses for professional, vocational or self-improvement courses of either spouse;
• Ante-nuptial debts to the extent the family has been benefited;
• Value of what is donated or promised by both spouses to their common legitimate children exclusively for commencing or completing a professional or vocational course or another activity for self-improvement; and
• Expenses of litigation between the spouses unless the suit is found to be groundless. (FC, Art. 121)

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

Charges against the Separate Property that may be charged upon the CPG

Disagreement in the administration of the CPG

In case of disagreement, the decision of the husband shall prevail subject to recourse to the court by the wife for proper remedy.

NOTE: Prescriptive period for recourse is 5 years from the date of the contract implementing such decision.

Conjugal partnership is terminated by:

• Death of either spouse;
• Legal separation;
• Annulment or Declaration of Nullity;
• Judicial separation of property during marriage. (FC, Art. 126)

Retroactive application of Art. 148 of the Family Code

Although the adulterous co-habitation of the parties or the acquisition of the property occurred before the effectivity of the Family Code on August 3, 1988, Article 148 applies because the said provision was intended precisely to fill up the hiatus in Article 144 of the NCC. Before Article 148 of the Family Code was enacted, there was no provision governing property relations of couples living in a state of adultery or concubinage. (Atienza v. De Castro, G.R. No. 169698, November 29, 2006)

Judicial Separation of Property – Family Code, arts. 134-142

Art. 134. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause. (190a)

Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property:

(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;

(2) That the spouse of the petitioner has been judicially declared an absentee;

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

(4) 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;

(5) That the spouse granted the power of administration in the marriage settlements has abused that power; and

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

In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property. (191a)

Art. 136. The spouses 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.

All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouses, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest. (191a)

Art. 137. Once the separation of property has been decreed, the absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code.During the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children. (192a)

Art. 138. After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply. (191a)

Art. 139. The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries and registries of property. (193a)

Art. 140. The separation of property shall not prejudice the rights previously acquired by creditors. (194a)

Art. 141. The spouses may, in the same proceedings where separation of property was decreed, file a motion in court for a decree reviving the property regime that existed between them before the separation of property in any of the following instances:

(1) When the civil interdiction terminates;

(2) When the absentee spouse reappears;

(3) When the court, being satisfied that the spouse granted the power of administration in the marriage settlements will not again abuse that power, authorizes the resumption of said administration;

(4) When the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other;

(5) When parental authority is judicially restored to the spouse previously deprived thereof;

(6) When the spouses who have separated in fact for at least one year, reconcile and resume common life; or

(7) When after voluntary dissolution of the absolute community of property or conjugal partnership has been judicially decreed upon the joint petition of the spouses, they agree to the revival of the former property regime. No voluntary separation of property may thereafter be granted.

The revival of the former property regime shall be governed by Article 67. (195a)

Art. 142. The administration of all classes of exclusive property of either spouse may be transferred by the court to the other spouse:

(1) When one spouse becomes the guardian of the other;

(2) When one spouse is judicially declared an absentee;

(3) When one spouse is sentenced to a penalty which carries with it civil interdiction; or

(4) When one spouse becomes a fugitive from justice or is in hiding as an accused in a criminal case.

If the other spouse is not qualified by reason of incompetence, conflict of interest, or any other just cause, the court shall appoint a suitable person to be the administrator. (n)

Sufficient causes for Judicial Separation of Property

• Civil interdiction of the spouse of petitioner;
• Judicial declaration of absence;
• Loss of parental authority as decreed by the court;
• Abandonment or failure to comply with family obligation; (2003 BAR)
• The spouse granted the power of administration in the marriage settlements has abused that power; and NOTE: In case such spouse abuses his or her powers of administration, judicial separation of property may be availed of by the aggrieved spouse to avoid further depletion of his or her interest in the properties. (Sta. Maria, 2019)
• Separation in fact for one year, and reconciliation is highly improbable. (Art. 135, FC)

NOTE: In cases provided in 1, 2 and 3, the presentation of the final judgment against the guilty or absent spouse shall be enough bases for the grant of the decree of judicial separation of property.

Effects of Judicial Separation of Property between Spouses

• The ACP or CPG is dissolved;
• The spouses shall be solidarily liable, with their separate properties, to creditors of the absolute community or conjugal partnership (Family Code, Art. 146(2));
• Mutual obligation to support each other continues except when there is legal separation; and
• Rights previously acquired by creditors are not prejudiced.

In case of voluntary agreement for the separation of property, the law does not require specific reasons to justify the Court in approving the same. The law leaves the matter to the discretion of the court. (Sempio-Diy, 1995) (2005 BAR)

Property Regime of Unions Without Marriage – Family Code, arts. 147- 148

Art. 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 the 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 if the former's efforts consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a)

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith. (144a)

Presumption if there is no proof that property is acquired by only one of them

In the absence of any proof to the contrary, properties acquired during their cohabitation shall be presumed to have been obtained by their joint efforts, work or industry and shall be owned in equal shares. A party who did not participate in the acquisition of the property shall be deemed to have contributed in the acquisition thereof, if the efforts contributed consisted in the care and maintenance of the family and household. (Pineda, 2011)

Prohibition to Dispose by Acts Inter Vivos

A party cannot, without the consent of the other dispose of or encumber by acts inter vivos his or her share in the property acquired during the cohabitation and which is owned in common until the termination of the cohabitation. However, disposition can be made by acts mortis causa such as through a will. (Pineda, 2011)

No Provision on Wages and Salaries

There is no provision concerning wages and salaries of the parties unlike in Art. 147. Art. 148 applies to cohabitation outside Art. 147, whether because of a legal impediment to marriage or because the parties do not live exclusively with each other. A party’s valid marriage to another is only one possible situation, in which case, his or her wages or salaries form part of the conjugal or community property with his or her lawful spouse. (Pineda, 2011)

XPNs: The only exceptions would be when they are:

• Legally separated (for then the conjugal or community property is dissolved); or
• they are governed by a regime of absolute separation of property.