Lecture
No. 5
CIVIL LAW REVIEW I
LECTURE SERIES
Articles 88 to 148, Family Code of
the Philippines
For: University of
San Agustin School of Law
General Luna Street,
Iloilo City
SY 2016-2017, 1st
Semester
By: Atty. Eduardo T. Reyes, III
Chapter 3. System of Absolute Community
Section 1. General Provisions
Art. 88. The absolute
community of property between spouses shall commence at the precise moment that
the marriage is celebrated. Any stipulation, express or implied, for the
commencement of the community regime at any other time shall be void. (145a)
Art. 89. No waiver of
rights, shares and effects of the absolute community of property during the
marriage can be made except in case of judicial separation of property.
When the waiver takes
place upon a judicial separation of property, or after the marriage has been
dissolved or annulled, the same shall appear in a public instrument and shall
be recorded as provided in Article 77. The creditors of the spouse who made
such waiver may petition the court to rescind the waiver to the extent of the
amount sufficient to cover the amount of their credits. (146a)
Art. 90. The
provisions on co-ownership shall apply to the absolute community of property
between the spouses in all matters not provided for in this Chapter. (n)
Section 2. What Constitutes Community Property
Art. 91. Unless otherwise provided in this Chapter 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. (197a)
Comment:
1. See Article 1782,
New Civil Code. “Persons who are
prohibited from giving each other any donation or advantage cannot enter into
universal partnership.”
Art. 1777- “A universal partnership may refer to all
the present property or to all the profits”.
v “Partnership Between Husband and Wife. – There is a clear
division among writers on whether husband and wife can enter into a partnership
with each other. Those who believe that they cannot, maintain that the same
principle which forbids donations and sales by one to the other also
invalidates a partnership between them. The better view, however, which is more
in consonance with the principles of our new Code emancipating married women,
is that such partnership is perfectly valid, so long as it does not violate
fundamental provisions on conjugal partnerships, and so long as the partnership
is not universal, for this is prohibited by Article 1782”[1].
Art. 92. The following
shall be excluded from the community property:
(1) Property acquired
during the marriage by gratuitous title 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. (201a)
Comment:
a. Compared with
Exclusions from Conjugal Partnership of Gains
Absolute Community
of Property
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Conjugal Partnership
of Gains
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(1) Property acquired during the
marriage by gratuitous title
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. (201a)
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(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)
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1. “Gratuitous title”
applies to both. Presumed that the donor or grantor, knowing that one spouse is
married still conveys gratuitously in favour of only one spouse, then the
intention becomes unequivocal that the grant is only in favour of one spouse.
2. “Legitimate
descendants by a former marriage”. Recall Article 54 Family Code. “Children conceived or born before the
judgment of annulment or absolute nullity of the marriage under Article 36 has
become final and executory, shall be considered legitimate. Children conceived
or born of the subsequent marriage under Article 53 shall likewise be
legitimate”.
3. Hypothetical.
During the marriage, X, the husband, was bestowed a Deed of Donation involving
a brand new Toyota Prius from his own parents because they disliked Y, his
wife. Since the donation is by “gratuitous title”, the Toyota Prius is
considered as separate property of X. Now, what if subsequently, X sells the
Toyota Prius and from the proceeds therefrom, buys a Toyota Camry. Is the
Toyota Camry common or exclusive property?
3.1. What if X barters or exchanges
the Toyota Prius with a Toyota Camry of his friend?
XOXO
Art. 93. Property
acquired during the marriage is presumed to belong to the community, unless it
is proved that it is one of those excluded therefrom. (160)
Section 3. Charges and Obligations of the Absolute
Community
Art. 94. 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 this 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;
(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;
(9)
Antenuptial debts of either spouse other than those falling under paragraph (7)
of this Article, 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. (161a, 162a, 163a, 202a-205a)
Comments:
a. Distinctions as to
Charges and Obligations
Absolute Community
of Property (Art. 94)
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Conjugal Partnership
of Gains (Art. 121)
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(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 this 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;
(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;
(9) Antenuptial debts of
either spouse other than those falling under paragraph (7) of this Article,
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. (161a, 162a, 163a, 202a-205a)
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The support of the spouse,
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 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)
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1. Only para. 9 of
Art. 94 does not have a counterpart provision. Instead, it is in Art. 122 that
personal debts and liabilities of a spouse in a regime of conjugal partnership
of gains can be found. Thus,
Absolute Community
of Property (Par. 9, Art. 94)
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Conjugal Partnership
of Gains (Art. 122)
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(9) Antenuptial debts of either spouse other
than those falling under paragraph (7) of this Article, 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
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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 properties 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.
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1. Read Spouses Boado v. Court of Appeals[2]
2. Personal debts,
fines and indemnities.
ACP. 1.Separate Properties are insufficient.
CPG.
1. ALL LIABILITIES & OBLIGATIONS under Art. 121 must
be satisfied.
2. Separate Properties must be insufficient.
3. For personal debts, the same must have been contracted before the marriage.
CPG has no duty to make advance payments. It is only confined to obligations enumerated in Article 121.
This is the reason why there is no counterpart provision for par. 9 of Art. 94 in Article 121. Instead, Personal debts, fines and indemnities in CPG is embodied in a separate provision which is Art. 122 and not among those enumerated in Art. 121.
[1] P.
322 Tolentino, Civil Code of the Philippines Vol. V 1992
[2]
G.R. No. 145222, April 24, 2009
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