Articles 88 to 148, Family Code
of the Philippines PART I
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 2017-2018, 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
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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
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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,
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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.
3. The Rule is
that prior to liquidation, the
respective shares of the spouses over the common properties are INCHOATE or
ABSTRACT. Thus, no one spouse can
segregate a definite portion of the common property yet.
4. Thus, for
purposes of making “advances” from the common properties, here are the rules:
ACP. Only one
(1) requisite to compel common properties to “advance” the payment prior to
liquidation.
ü 1.Separate
Properties are insufficient.
In turn, for
CPG, three (3) requisites must concur.
ü 1.ALL
LIABILITIES & OBLIGATIONS under Art. 121 must be satisfied.
ü 2. Separate
Properties must be insufficient.
ü 3. For
personal debts, the same must have been contracted before the marriage.
v In ACP, parties have fewer separate
properties. Thus, ACP automatically must advance payment of personal debts,
liabilities and fines.
v CPG has no duty to make advance payments. It
is only confined to obligations enumerated in Article 121.
v 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.
4. But whether
the property regime is ACP or CPG, the common properties that belong to the
regime, whether they qualify as a Family Home or not, shall not be levied upon,
let alone, sold at public auction, for an obligation contracted by only one
spouse without the consent of the other, nor has redounded to the benefit of
the family.
In the very recent
2016 case of Anita U. Lorenzana v. Rodolfo Lelina[1],
the Supreme Court was emphatic on this point, to wit:
“x x x
Money judgments are enforceable only
against property unquestionably belonging to the judgment debtor alone. If
property belonging to any third person is mistakenly levied upon to answer for
another man’s indebtedness, the Rules of Court gives such person all the
right to challenge the levy through any of the remedies provided for under the
rules, including an independent “separate action” to vindicate his or her claim
of ownership and/ or possession over the foreclosed property.
X x x
“As a rule, if at the time of levy and sale by the sheriff, the property
did not belong to the conjugal partnership, but was paraphernal property, such
property may not be answerable for the obligations of the husband which
resulted in the judgment against him in favor of another person the levied
property being the exclusive property of Ambrosia, and Ambrosia not being a
party to the collection case, the levied property may not answer for Aquilino’s
obligations. Even assuming that the levied property belonged to the conjugal
partnership of Ambrosia and Aquilino, it may still not be levied upon because
petitioner did not present proof that the obligation redounded to the benefit
of the family. More importantly, Aquilino’s interest over a portion of the levied
property is merely inchoate prior to the liquidation of the conjugal
partnership.
Thus, we find that the levied property
may not answer for the obligations of Aquilino because the latter does not own
it at the time of the levy. Hence the Deed of Final Conveyance and TD No.
11-21367-A were correctly cancelled for being the outcome of an invalid levy”.
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