Articles 55 to 87,
the Family Code of the Philippines
Lecture No. 4
CIVIL LAW REVIEW
I
LECTURE SERIES
Articles 55 to 87, Family Code of the
Philippines
For: University of
San Agustin School of Law
General Luna
Street, Iloilo City
SY 2017-2018, 1st Semester
By: Atty. Eduardo
T. Reyes, III
LEGAL SEPARATION
Art. 55. A petition for legal separation may be filed on any of the following grounds:
(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;
(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;
(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;
(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the respondent;
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;
(8) Sexual infidelity or perversion;
(9) Attempt by the respondent against the life of the petitioner; or
(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.
For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a)
Comments:
Ø Known as “relative divorce”
Ø Grounds are exclusive
Ø REPEATED Physical Violence or GROSSLY abusive conduct
Ø On child of respondent-spouse with another person?
Ø Repeated= Frequency
Ø Grossly- Characterized by severity, single incident suffices
Ø Mere “attempt” to corrupt or induce or lure into prostitution is enough
Ø “Sexual infidelity or perversion” includes all acts which are short of adultery or concubinage
Art. 56. The petition for legal separation shall be denied on any of the following grounds:
(1) Where the aggrieved party has condoned the offense or act complained of;
(2) Where the aggrieved party has consented to the commission of the offense or act complained of;
(3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation;
(4) Where both parties have given ground for legal separation;
(5) Where there is collusion between the parties to obtain decree of legal separation; or
(6) Where the action is barred by prescription. (100a)
Comments:
Ø “Condonation” may be express or implied
Ø Recrimination or equal guilt. The bad faith of one cancels the bad faith of the other
Ø Prescription. 5-years. What is the reckoning point? From time of commission or from discovery by the innocent spouse?
Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102)
Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (103)
Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n)
Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed. (101a)
Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. (104a)
Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. (105a)
Art. 63. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;
(2) The absolute community or the conjugal partnership shall be dissolved and liquidated but the offending spouse shall have no right to any share of the net profits earned by the absolute community or the conjugal partnership, which shall be forfeited in accordance with the provisions of Article 43(2);
(3) The custody of the minor children shall be awarded to the innocent spouse, subject to the provisions of Article 213 of this Code; and
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. (106a)
Comments:
1. See Brigido B. Quiao v. Rita C. Quiao[1], etc. on meaning of “Net Profits Earned”. – refer to all the fruits of the separate properties of the spouses and the products of their labor and industry.
2. 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 dissolution.
3. ACP- Market value at the time of dissolution less debts and obligations = NET ASSETS OR NET REMAINDERS
4. CPG- Complete separation of capitals
5. Forfeiture- ACP- All the capitals before the marriage plus the NET ASSETS are forfeited
6. CPG- Only the Net Remainder
7. See Arts. 147-148 on forfeiture; Compare
3. ACP- Market value at the time of dissolution less debts and obligations = NET ASSETS OR NET REMAINDERS
4. CPG- Complete separation of capitals
5. Forfeiture- ACP- All the capitals before the marriage plus the NET ASSETS are forfeited
6. CPG- Only the Net Remainder
7. See Arts. 147-148 on forfeiture; Compare
“The net profits of the conjugal partnership of gains are
all the fruits of the separate properties of the spouses and the products of
their labor and industry.
The
petitioner inquires from us the meaning of net profits earned by the conjugal
partnership for purposes of effecting the forfeiture authorized under Article
63 of the Family Code.He insists that since there is no other provision under
the Family Code, which defines net profits earned subject of forfeiture as a
result of legal separation, then Article 102 of the Family Code applies.
What
does Article 102 of the Family Code say? Is the computation of net profits
earned in the conjugal partnership of gains the same with the computation of
net profits earned in the absolute community?
Now,
we clarify.
First
and foremost, we must distinguish between the applicable law as to the property
relations between the parties and the applicable law as to the definition of
net profits. As earlier discussed, Article 129 of the Family Code applies as to
the property relations of the parties. In other words, the computation and the
succession of events will follow the provisions under Article 129 of the said
Code. Moreover, as to the definition of net profits, we cannot but refer to
Article 102(4) of the Family Code, since it expressly provides that for
purposes of computing the net profits subject to forfeiture under Article 43,
No. (2) and Article 63, No. (2), Article 102(4) applies. In this provision, net
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.[72] Thus,
without any iota of doubt, Article 102(4) applies to both the dissolution of
the absolute community regime under Article 102 of the Family Code, and to the
dissolution of the conjugal partnership regime under Article 129 of the Family
Code. Where lies the difference? As earlier shown, the difference lies in the
processes used under the dissolution of the absolute community regime under
Article 102 of the Family Code, and in the processes used under the dissolution
of the conjugal partnership regime under Article 129 of the Family Code.
Let us
now discuss the difference in the processes between the absolute community
regime and the conjugal partnership regime.
On
Absolute Community Regime:
When a
couple enters into a regime of absolute community, the husband and
the wife becomes joint owners of all the properties of the marriage.
Whatever property each spouse brings into the marriage, and those acquired
during the marriage (except those excluded under Article 92 of the Family Code)
form the common mass of the couple's properties. And when the couple's marriage
or community is dissolved, that common mass is divided between the spouses, or
their respective heirs, equally or in the proportion the parties have
established, irrespective of the value each one may have originally owned.[73]
Under
Article 102 of the Family Code, upon dissolution of marriage, an inventory is
prepared, listing separately all the properties of the absolute community and
the exclusive properties of each; then the debts and obligations of the
absolute community are paid out of the absolute community's assets and if the
community's properties are insufficient, the separate properties of each of the
couple will be solidarily liable for the unpaid balance. Whatever is left of
the separate properties will be delivered to each of them. The net remainder of
the absolute community is its net assets, which shall be divided between the
husband and the wife; and for purposes of computing the net profits subject to
forfeiture, 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.[74]
Applying
Article 102 of the Family Code, the net profits requires that we first find the
market value of the properties at the time of the community's
dissolution. From the totality of the market value of all the properties,
we subtract the debts and obligations of the absolute community and this result
to the net assets or net remainder of the properties of the absolute community,
from which we deduct the market value of the properties at the time of
marriage, which then results to the net profits.[75]
Granting
without admitting that Article 102 applies to the instant case, let us see what
will happen if we apply Article 102:
(a)
According to the trial court's finding of facts, both husband and wife have no
separate properties, thus, the remaining properties in the list above are all
part of the absolute community. And its market value at the time of the
dissolution of the absolute community constitutes the market value at
dissolution.
(b)
Thus, when the petitioner and the respondent finally were legally separated,
all the properties which remained will be liable for the debts and obligations
of the community. Such debts and obligations will be subtracted from the
market value at dissolution.
(c)
What remains after the debts and obligations have been paid from the total
assets of the absolute community constitutes the net remainder or net
asset. And from such net asset/remainder of the petitioner and
respondent's remaining properties, the market value at the time of marriage
will be subtracted and the resulting totality constitutes the net profits.
(d) Since
both husband and wife have no separate properties, and nothing
would be returned to each of them, what will be divided equally between them is
simply the net profits. However, in the Decision dated October 10, 2005,
the trial court forfeited the half-share of the petitioner in favor of his
children. Thus, if we use Article 102 in the instant case (which should
not be the case), nothing is left to the petitioner since both parties entered
into their marriage without bringing with them any property.
On
Conjugal Partnership Regime:
Before
we go into our disquisition on the Conjugal Partnership Regime, we make it
clear that Article 102(4) of the Family Code applies in the instant case for
purposes only of defining net profit. As earlier explained, the
definition of net profits in Article 102(4) of the Family Code applies to both
the absolute community regime and conjugal partnership regime as provided for
under Article 63, No. (2) of the Family Code, relative to the provisions on
Legal Separation.
Now,
when a couple enters into a regime of conjugal partnership of gains under
Article 142 of the Civil Code, the husband and the wife place in common fund
the fruits of their separate property and income from their work or industry,
and divide equally, upon the dissolution of the marriage or of the partnership,
the net gains or benefits obtained indiscriminately by either spouse during the
marriage.[76] From
the foregoing provision, each of the couple has his and her own property and
debts. The law does not intend to effect a mixture or merger of those
debts or properties between the spouses. Rather, it establishes a complete
separation of capitals.[77]
Considering
that the couple's marriage has been dissolved under the Family Code, Article
129 of the same Code applies in the liquidation of the couple's properties in
the event thatthe conjugal partnership of gains is dissolved, to wit:
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 provisions of paragraph (2) 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.
In the
normal course of events, the following are the steps in the liquidation of the
properties of the spouses:
(a) An
inventory of all the actual properties shall be made, separately listing the
couple's conjugal properties and their separate properties.[78] In
the instant case, the trial court found that the couple has no
separate properties when they married.[79] Rather,
the trial court identified the following conjugal properties, to wit:
1. coffee mill in Balongagan, Las Nieves, Agusan del Norte;
2. coffee mill in Durian, Las Nieves, Agusan del Norte;
3. corn mill in Casiklan, Las Nieves, Agusan del Norte;
4. coffee mill in Esperanza, Agusan del Sur;
5. a parcel of land with an area of 1,200 square meters
located in Tungao, Butuan City;
6. a parcel of agricultural land with an area of 5 hectares
located in Manila de Bugabos, Butuan City;
7. a parcel of land with an area of 84 square meters located
in Tungao, Butuan City;
8. Bashier Bon Factory located in
Tungao, Butuan City.[80]
(b)
Ordinarily, the benefit received by a spouse from the conjugal partnership
during the marriage is returned in equal amount to the assets of the conjugal
partnership;[81] and
if the community is enriched at the expense of the separate properties of
either spouse, a restitution of the value of such properties to their
respective owners shall be made.[82]
(c)
Subsequently, the couple's conjugal partnership shall pay the debts of the
conjugal partnership; while the debts and obligation of each of the spouses
shall be paid from their respective separate properties. But if the
conjugal partnership is not sufficient to pay all its debts and obligations,
the spouses with their separate properties shall be solidarily liable.[83]
(d)
Now, what remains of the separate or exclusive properties of the husband and of
the wife shall be returned to each of them.[84] In
the instant case, since it was already established by the trial
court that the spouses have no separate properties,[85] there
is nothing to return to any of them. The listed properties above
are considered part of the conjugal partnership. Thus, ordinarily, what
remains in the above-listed properties should be divided equally between the
spouses and/or their respective heirs.[86] However,
since the trial court found the petitioner the guilty party, his share from the
net profits of the conjugal partnership is forfeited in favor of the common
children, pursuant to Article 63(2) of the Family Code. Again, lest we be
confused, like in the absolute community regime, nothing will be returned to
the guilty party in the conjugal partnership regime, because there
is no separate property which may be accounted for in the guilty party's favor.
In the
discussions above, we have seen that in both instances, the petitioner is not
entitled to any property at all. Thus, we cannot but uphold the Decision
dated October 10, 2005 of the trial court. However, we must clarify, as we
already did above, the Order dated January 8, 2007.
WHEREFORE, the
Decision dated October 10, 2005 of the Regional Trial Court, Branch 1 of Butuan
City is AFFIRMED. Acting on the Motion for Clarification dated
July 7, 2006 in the Regional Trial Court, the Order dated January 8, 2007 of
the Regional Trial Court is hereby CLARIFIED in accordance
with the above discussions.
SO
ORDERED.”
Art. 64. After the finality of the decree of legal separation, the innocent spouse may revoke the donations made by him or by her in favor of the offending spouse, as well as the designation of the latter as beneficiary in any insurance policy, even if such designation be stipulated as irrevocable. The revocation of the donations shall be recorded in the registries of property in the places where the properties are located. Alienations, liens and encumbrances registered in good faith before the recording of the complaint for revocation in the registries of property shall be respected. The revocation of or change in the designation of the insurance beneficiary shall take effect upon written notification thereof to the insured.
The action to revoke the donation under this Article must be brought within five years from the time the decree of legal separation become final. (107a)
Comments:
1. “Notification thereof to the insured”?
2. 5-year prescriptive period.
3. See Article 87 Family Code in rel. to Art. 739, New Civil Code. VOID donations.
Art. 65. If the spouses should reconcile, a corresponding joint manifestation under oath duly signed by them shall be filed with the court in the same proceeding for legal separation. (n)
Art. 66. The reconciliation referred to in the
preceding Articles shall have the following consequences:
(1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and
(2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime.
The court's order containing the foregoing shall be recorded in the proper civil registries. (108a)
Art. 67. The agreement to revive the former
property regime referred to in the preceding Article shall be executed under
oath and shall specify:
(1)
The properties to be contributed anew to the restored regime;
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts owing to each.
(2) Those to be retained as separated properties of each spouse; and
(3) The names of all their known creditors, their addresses and the amounts owing to each.
(2)
The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties.
The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim. (195a, 108a)
Comments:
1. “Revival of former property regime”.
2. See Articles 88 & 107 FC. ABP & CPG “shall commence at the precise moment of the celebration of the marriage. Any stipulation, express or implied, for the commencement of the community property regime at any other time, shall be void.
3. See Secs. 23 ( e ) and 24, SC En Banc Resolution A.M. No. 02-11-12 effective March 15, 2003.
4. “x x x ( e ) In case of paragraphs (b), ( c ), and (d), if the reconciled spouses choose to adopt a regime of property relations different from that which they had prior to the filing of the petition for legal separation, the spouses shall comply with Section 24 hereof.
The agreement of revival and the motion for its approval shall be filed with the court in the same proceeding for legal separation, with copies of both furnished to the creditors named therein. After due hearing, the court shall, in its order, take measure to protect the interest of creditors and such order shall be recorded in the proper registries of properties.
The recording of the ordering in the registries of property shall not prejudice any creditor not listed or not notified, unless the debtor-spouse has sufficient separate properties to satisfy the creditor's claim. (195a, 108a)
Comments:
1. “Revival of former property regime”.
2. See Articles 88 & 107 FC. ABP & CPG “shall commence at the precise moment of the celebration of the marriage. Any stipulation, express or implied, for the commencement of the community property regime at any other time, shall be void.
3. See Secs. 23 ( e ) and 24, SC En Banc Resolution A.M. No. 02-11-12 effective March 15, 2003.
4. “x x x ( e ) In case of paragraphs (b), ( c ), and (d), if the reconciled spouses choose to adopt a regime of property relations different from that which they had prior to the filing of the petition for legal separation, the spouses shall comply with Section 24 hereof.
5. “Section 24. Revival of property regime or
adoption of another. x x x” .
6. 1st View- “Take-it-or-leave-it basis”; 2nd View- Hybrid; 3rd View- Only ANY OTHER PROPERTY REGIME but not ACP or CPG.
6. 1st View- “Take-it-or-leave-it basis”; 2nd View- Hybrid; 3rd View- Only ANY OTHER PROPERTY REGIME but not ACP or CPG.
7. DISINHERITANCE. “Reconciliation restores
ipso jure the guilty spouse as qualified heir of the innocent spouse for
purposes of intestate succession only. Family Code has no ipso jure provision
to cure the revocation of provisions in a will pursuant to Art. 63 par. 4.
TITLE III
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
TITLE III
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
Art. 68. The husband and wife are obliged to
live together, observe mutual love, respect and fidelity, and render mutual
help and support. (109a)
Art. 69. The husband and wife shall fix the
family domicile. In case of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (110a)
The court may exempt one spouse from living with the other if the latter should live abroad or there are other valid and compelling reasons for the exemption. However, such exemption shall not apply if the same is not compatible with the solidarity of the family. (110a)
Art. 70. The spouses are jointly responsible
for the support of the family. The expenses for such support and other conjugal
obligations shall be paid from the community property and, in the absence
thereof, from the income or fruits of their separate properties. In case of
insufficiency or absence of said income or fruits, such obligations shall be
satisfied from the separate properties. (111a)
Art. 71. The management of the household shall
be the right and the duty of both spouses. The expenses for such management
shall be paid in accordance with the provisions of Article 70. (115a)
Art. 72. When one of the spouses neglects his
or her duties to the conjugal union or commits acts which tend to bring danger,
dishonor or injury to the other or to the family, the aggrieved party may apply
to the court for relief. (116a)
Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds.
Art. 73. Either spouse may exercise any legitimate profession, occupation, business or activity without the consent of the other. The latter may object only on valid, serious, and moral grounds.
In case of disagreement, the court shall
decide whether or not:
(1) The objection is proper, and
(2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (117a)
Comments:
1. May specific performance be availed of to compel a spouse who refuses to perform marital duties?
2. Article 73. “The exercise by a spouse of a legitimate profession, occupation, business or activity is always considered to redound to the benefit of the family. But an isolated transaction of a spouse such as being a guarantor for a third person’s debt is not per se considered as redounding to the benefit of the family, and therefore, to hold the absolute community property or the conjugal partnership property liable for any loss resulting from such isolated activity, proofs showing a direct benefit to the family must be presented” .
3. “Article 73, second paragraph, item number 2, however provides that “if the benefit accrued prior to the objection, the resulting obligation shall be enforced against the community property. If the benefit accrued thereafter, such obligation shall be enforced against the separate property of the spouse who has not obtained consent”. Hence, in case of professions which are seriously invalid and immoral, the separate property of the erring spouse shall be liable for all obligations relating to such exercise of profession even if benefits accrued in favour of the family provided that such benefits accrued after the objection. Clearly therefore, Article 73, 2nd paragraph, item number 2 in relation to accruing-benefits after the objection, is an exception to the general rule that, for as long as the obligations inured to the benefit of the family, the absolute or conjugal property shall be liable” .
TITLE IV
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
Chapter 1. General Provisions
(1) The objection is proper, and
(2) Benefit has occurred to the family prior to the objection or thereafter. If the benefit accrued prior to the objection, the resulting obligation shall be enforced against the separate property of the spouse who has not obtained consent.
The foregoing provisions shall not prejudice the rights of creditors who acted in good faith. (117a)
Comments:
1. May specific performance be availed of to compel a spouse who refuses to perform marital duties?
2. Article 73. “The exercise by a spouse of a legitimate profession, occupation, business or activity is always considered to redound to the benefit of the family. But an isolated transaction of a spouse such as being a guarantor for a third person’s debt is not per se considered as redounding to the benefit of the family, and therefore, to hold the absolute community property or the conjugal partnership property liable for any loss resulting from such isolated activity, proofs showing a direct benefit to the family must be presented” .
3. “Article 73, second paragraph, item number 2, however provides that “if the benefit accrued prior to the objection, the resulting obligation shall be enforced against the community property. If the benefit accrued thereafter, such obligation shall be enforced against the separate property of the spouse who has not obtained consent”. Hence, in case of professions which are seriously invalid and immoral, the separate property of the erring spouse shall be liable for all obligations relating to such exercise of profession even if benefits accrued in favour of the family provided that such benefits accrued after the objection. Clearly therefore, Article 73, 2nd paragraph, item number 2 in relation to accruing-benefits after the objection, is an exception to the general rule that, for as long as the obligations inured to the benefit of the family, the absolute or conjugal property shall be liable” .
TITLE IV
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
Chapter 1. General Provisions
Art. 74. The property relationship between
husband and wife shall be governed in the following order:
(1)
By marriage settlements executed before the marriage;
(2) By the provisions of this Code; and
(3) By the local custom. (118)
(2) By the provisions of this Code; and
(3) By the local custom. (118)
Art. 75. The future
spouses may, in the marriage settlements, agree upon the regime of absolute
community, conjugal partnership of gains, 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. (119a)
Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. (121)
Art. 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They 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. (122a)
Comments:
1. Marriage settlements are CIRCUMSCRIBED as follows:
a. ACP or CPG can only start at the PRECISE MOMENT of celebration of marriage
b. parties cannot stipulate that they can make in the future any substantial donation to each other because such is void under Article 87.
2. Family Code went further than Rule on Statute of Frauds. Art. 1403 (2c) of the New Civil Code considers as merely unenforceable an agreement in consideration of marriage which requires the same to be in writing for purposes of validity.
3. MODIFICATIONS. Gen Rule: Any modifications must be made before the celebration of the marriage, in writing, and signed by the parties. Exceptions: Art. 66- reconciliation; Art. 67- Revival of former property regime; Art. 128- Judicial Separation of Property on the ground of Abandonment; Art. 136 & 136- Sufficient cause for Voluntary Dissolution
Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136. (121)
Art. 77. The marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They 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. (122a)
Comments:
1. Marriage settlements are CIRCUMSCRIBED as follows:
a. ACP or CPG can only start at the PRECISE MOMENT of celebration of marriage
b. parties cannot stipulate that they can make in the future any substantial donation to each other because such is void under Article 87.
2. Family Code went further than Rule on Statute of Frauds. Art. 1403 (2c) of the New Civil Code considers as merely unenforceable an agreement in consideration of marriage which requires the same to be in writing for purposes of validity.
3. MODIFICATIONS. Gen Rule: Any modifications must be made before the celebration of the marriage, in writing, and signed by the parties. Exceptions: Art. 66- reconciliation; Art. 67- Revival of former property regime; Art. 128- Judicial Separation of Property on the ground of Abandonment; Art. 136 & 136- Sufficient cause for Voluntary Dissolution
Art. 78. A minor who
according to law may contract marriage may also execute his or her marriage settlements,
but they shall be valid only if the persons designated in Article 14 to give
consent to the marriage are made parties to the agreement, subject to the
provisions of Title IX of this Code. (120a)
Art. 79. For the
validity of any marriage settlement executed by a person upon whom a sentence
of civil interdiction has been pronounced or who is subject to any other
disability, it shall be indispensable for the guardian appointed by a competent
court to be made a party thereto. (123a)
Art. 80. In the
absence of a contrary stipulation in a marriage settlement, the property
relations of the spouses shall be governed by Philippine laws, regardless of
the place of the celebration of the marriage and their residence.
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. (124a)
This rule shall not apply:
(1) Where both spouses are aliens;
(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and
(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. (124a)
Art. 81. Everything
stipulated in the settlements or contracts referred to in the preceding articles
in consideration of a future marriage, including donations between the
prospective spouses made therein, shall be rendered void if the marriage does
not take place. However, stipulations that do not depend upon the celebration
of the marriages shall be valid. (125a)
Chapter 2. Donations by Reason of Marriage
Chapter 2. Donations by Reason of Marriage
Art. 82. Donations by
reason of marriage are those which are made before its celebration, in
consideration of the same, and in favor of one or both of the future spouses.
(126)
Art. 83. These donations
are governed by the rules on ordinary donations established in Title III of
Book III of the Civil Code, insofar as they are not modified by the following
articles. (127a)
Art. 84. If the future
spouses agree upon a regime other than the absolute community of property, they
cannot donate to each other in their marriage settlements more than one-fifth
of their present property. Any excess shall be considered void.
Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (130a)
Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills. (130a)
Art. 85. Donations by
reason of marriage of property subject to encumbrances shall be valid. In case
of foreclosure of the encumbrance and the property is sold for less than the
total amount of the obligation secured, the donee shall not be liable for the
deficiency. If the property is sold for more than the total amount of said
obligation, the donee shall be entitled to the excess. (131a)
Art. 86. A donation by
reason of marriage may be revoked by the donor in the following cases:
(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in bad faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied with;
(6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a)
Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (133a)
Comments:
1. Requisites for validity of “donations propter nuptias”
a. there must be a valid marriage settlement;
b.the marriage settlement must stipulate a property regime OTHER than the absolute community property;
c.the donation contained in the marriage settlement must not be more than one-fifth of his or her present property;
d.the donation must be accepted by the would-be spouse; and,
e. the donation must comply with the requisites established in Title III of Book III of the Civil Code on donations” .
2. Prior to the marriage, would-be husband donates to his fiancée deed of donation, not in a marriage settlement, MORE THAN ONE-FIFTH of his present property, what are the legal ramifications:
• If parties agree on ACP
• Separate Deed of Donation, not in the marriage settlement
3. General Rule: The IMPETUS or DRIVING FORCE is the “celebration of the marriage”. If no marriage celebration takes place, is Donation propter nuptias deemed void by operation of law?
• If contained in separate deed of donation?
• If embodied in marriage settlement?
4. VOID MARRIAGE. What if the marriage is void ab initio?
• Gen. Rule: There must be JUDICIAL DECLARATION of nullity of marriage. Otherwise, donation propter nuptias remains valid and binding.
• Exceptions:
• 1.Void marriage under Art. 40 in rel to Arts 52 and 53- revoked by operation of law
• 2.Terminated marriage under Art. 41- revoked by operation of law
(1) If the marriage is not celebrated or judicially declared void ab initio except donations made in the marriage settlements, which shall be governed by Article 81;
(2) When the marriage takes place without the consent of the parents or guardian, as required by law;
(3) When the marriage is annulled, and the donee acted in bad faith;
(4) Upon legal separation, the donee being the guilty spouse;
(5) If it is with a resolutory condition and the condition is complied with;
(6) When the donee has committed an act of ingratitude as specified by the provisions of the Civil Code on donations in general. (132a)
Art. 87. Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage. (133a)
Comments:
1. Requisites for validity of “donations propter nuptias”
a. there must be a valid marriage settlement;
b.the marriage settlement must stipulate a property regime OTHER than the absolute community property;
c.the donation contained in the marriage settlement must not be more than one-fifth of his or her present property;
d.the donation must be accepted by the would-be spouse; and,
e. the donation must comply with the requisites established in Title III of Book III of the Civil Code on donations” .
2. Prior to the marriage, would-be husband donates to his fiancée deed of donation, not in a marriage settlement, MORE THAN ONE-FIFTH of his present property, what are the legal ramifications:
• If parties agree on ACP
• Separate Deed of Donation, not in the marriage settlement
3. General Rule: The IMPETUS or DRIVING FORCE is the “celebration of the marriage”. If no marriage celebration takes place, is Donation propter nuptias deemed void by operation of law?
• If contained in separate deed of donation?
• If embodied in marriage settlement?
4. VOID MARRIAGE. What if the marriage is void ab initio?
• Gen. Rule: There must be JUDICIAL DECLARATION of nullity of marriage. Otherwise, donation propter nuptias remains valid and binding.
• Exceptions:
• 1.Void marriage under Art. 40 in rel to Arts 52 and 53- revoked by operation of law
• 2.Terminated marriage under Art. 41- revoked by operation of law
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