Articles 88 to 148,
Family Code of the Philippines PART II
(Note: Part I of Art 88 to 148 and Lecture outline No. 4 on Art. 55 to 87 may be searched from Older Posts)
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
Art. 95. Whatever may
be lost during the marriage in any game of chance, betting, sweepstakes, or any
other kind of gambling, whether permitted or prohibited by law, shall be borne
by the loser and shall not be charged to the community but any winnings
therefrom shall form part of the community property. (164a)
Section 4. Ownership,
Administrative, Enjoyment and Disposition of the Community Property
Art. 96. The
administration and enjoyment of the community property 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 common properties, the other spouse may assume sole
powers of administration. These powers do not include disposition or
encumbrance without authority of the court or the written consent of the other
spouse. In the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be construed as a
continuing offer on the part of the consenting spouse and the third person, and
may be perfected as a binding contract upon the acceptance by the other spouse
or authorization by the court before the offer is withdrawn by either or both
offerors. (206a)
Art. 97. Either spouse
may dispose by will of his or her interest in the community property. (n)
Art. 98. Neither
spouse may donate any community property without the consent of the other.
However, either spouse may, without the consent of the other, make moderate
donations from the community property for charity or on occasions of family
rejoicing or family distress. (n)
Section 5.
Dissolution of Absolute Community Regime
Art. 99. The absolute
community 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 Article 134 to 138.
(175a)
Art. 100. The
separation in fact between husband and wife shall not affect the regime of
absolute community except that:
(1) The spouse who
leaves the conjugal home or refuses to live therein, without just cause, shall
not have the right to be supported;
(2) When the consent
of one spouse to any transaction of the other is required by law, judicial
authorization shall be obtained in a summary proceeding;
(3) In the absence of
sufficient community property, the separate property of both spouses shall be
solidarily liable for the support of the family. The spouse present shall, upon
proper petition in a summary proceeding, be given judicial authority to
administer or encumber any specific separate property of the other spouse and
use the fruits or proceeds thereof to satisfy the latter's share. (178a)
Art. 101. If a spouse
without just cause abandons the other or fails to comply with his or her
obligations 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 absolute community, 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 her or she has left the conjugal dwelling without
intention of returning. The spouse who has left the conjugal dwelling for a
period of three months or has failed within the same period to give any
information as to his or her whereabouts shall be prima facie presumed to have
no intention of returning to the conjugal dwelling. (178a)
Comments:
1. Sale or disposition
of Absolute Community Property Assets
Rule: Any alienation
or encumbrance must have the written consent of the other spouse or the
authority of the court.
Exception: Even if
the disposition or encumbrance is VOID, 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
the offerors.(Art. 96, Art. 124).
2. Thus, the rule in
ordinary contracts that a void contract cannot be ratified is inapposite in
family code.
3. “Consent” may be
implicit. See Pelayo v. Perez , wife affixed her signature on deed as witness.
See also, Aggabao v. Parulan , “buyers must show that they inquired not only
into the TITLE of the seller but also into the seller’s CAPACITY TO SELL. Thus,
the buyers of conjugal property must observe two kinds of requisite diligence,
namely: a) the diligence in verifying the VALIDITY OF THE TITLE covering the
property; and (b) the diligence in inquiring into the AUTHORITY of the
transacting spouse to sell conjugal property in behalf of the other spouse”.
4. See Flores v.
Lindo , subsequent execution of SPA by wife was deemed as “acceptance”.
5. “Art.
101. If a spouse without just cause abandons the other or fails to comply with
his or her obligations 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 absolute community, subject to such
precautionary conditions as the court may impose”.
6. See Uy v. CA ,
What if spouse suffers from stroke and becomes devoid of mental and motor
faculties? Or slipped into a coma?
7. Revisit Art. 99 on
termination of Absolute Community Property Regime.
(Counter-part
provision in CPG)
“ Art. 99. The absolute community 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 (pursuant to Art. 40 only per Valdez v CA ruling);
or
(4) In case of
judicial separation of property during the marriage under Article 134 to 138.
(175a)
(5) terminated
marriage on account of re-appearance of absentee spouse.(Per Par.2, Art. 43).
Section 6.
Liquidation of the Absolute Community Assets and Liabilities
Art. 102. Upon
dissolution of the absolute community regime, the following procedure shall
apply:
(1) An inventory
shall be prepared, listing separately all the properties of the absolute
community and the exclusive properties of each spouse.
(2) The debts and
obligations of the absolute community shall be paid out of its assets. In case
of insufficiency of said assets, the spouses shall be solidarily liable for the
unpaid balance with their separate properties in accordance with the provisions
of the second paragraph of Article 94.
(3) Whatever remains
of the exclusive properties of the spouses shall thereafter be delivered to
each of them.
(4) The net remainder
of the properties of the absolute community shall constitute its net assets,
which shall be divided equally between husband and wife, unless a different
proportion or division was agreed upon in the marriage settlements, or unless
there has been a voluntary waiver of such share provided in this Code. For
purpose of computing the net profits subject to forfeiture in accordance with
Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in
value between the market value of the community property at the time of the
celebration of the marriage and the market value at the time of its
dissolution.
(5) The presumptive
legitimes of the common children shall be delivered upon partition, in
accordance with Article 51.
(6) Unless otherwise
agreed upon by the parties, in the partition of the properties, the conjugal
dwelling and the lot on which it is situated shall be adjudicated to the spouse
with whom the majority of the common children choose to remain. Children below
the age of seven years are deemed to have chosen the mother, unless the court
has decided otherwise. In case there in no such majority, the court shall
decide, taking into consideration the best interests of said children. (n)
Art. 103. Upon the
termination of the marriage by death, the community property shall be
liquidated in the same proceeding for the settlement of the estate of the
deceased.
If no judicial
settlement proceeding is instituted, the surviving spouse shall liquidate the
community property either judicially or extra-judicially within six months from
the death of the deceased spouse. If upon the lapse of the six months period,
no liquidation is made, any disposition or encumbrance involving the community
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. 104. Whenever
the liquidation of the community 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 community
shall be determined upon such proof as may be considered according to the rules
of evidence. In case of doubt as to which community the existing properties
belong, the same shall be divided between the different communities in
proportion to the capital and duration of each. (189a)
Comments:
1. Both marriages
PRIOR to effectivity of Family Code, “divided between the different communities
in proportion to the capital and duration of each”.
2. Previous marriage
before FC and subsequent marriage during the AEGIS or AUSPICES of FC. Legal
safeguards-
a) There are
LEGITIMATE DESCENDANTS- Art. 92 (3) provides that properties before the
subsequent marriage are EXCLUDED from ACP
b) No legitimate
descendants from former marriage- Per 3rd Par. Art. 103- Subsequent marriage is
governed by Mandatory Regime of Complete Separation of Property
c) No Legitimate
descendants from former marriage, no prior liquidation and termination of
previous marriage which was terminated NOT by DEATH, but by declaration of
nullity pursuant to Article 40 , or by annulment, marriage is void for being
contrary to public policy See Articles 52 and 53 FC
3. LIQUIDATION,
according to Diño v. Diño , need not be done in the same family Court which
declared the marriage void for reasons OTHER than Article 40. Instead, civil
code provisions apply. Partition and liquidation may be done either
extra-judicially or judicially. Decree of Nullity of Marriage need not wait for
liquidation, partition and distribution of dissolved co-ownership under 147 or
148.
4. Sec. 21, Rule on
Declaration of Absolute Nullity of Void Marriages and Annulment of Voidable
Marriages.
“Liquidation,
partition, and distribution, custody, support of common children and delivery
of their presumptive legitimes. – Upon entry of the judgment granting the
petition, or, in case of appeal, upon receipt of the entry of judgment of the
appellate court granting the petition, the Family Court, on motion of either
party, shall proceed with the liquidation, partition and distribution of the
properties of the spouses, including custody, support of common children and
delivery of their presumptive legitimes pursuant to Articles 50 and 51 of the
Family Code unless such matters had been adjudicated in previous judicial
proceedings.”
Chapter 4. Conjugal
Partnership of Gains
Section 1. General
Provisions
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. A spouse of
age may mortgage, encumber, alienate or otherwise dispose of his or her
exclusive property, without the consent of the other spouse, and appear alone
in court to litigate with regard to the same. (n)
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 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)
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.
(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 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. (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)
Chapter 5. Separation
of Property of the Spouses and Administration of Common Property by One Spouse
During the Marriage
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 spouse, 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)
Chapter 6. Regime of
Separation of Property
Art. 143. Should the
future spouses agree in the marriage settlements that their property relations
during marriage shall be governed by the regime of separation of property, the
provisions of this Chapter shall be suppletory. (212a)
Art. 144. Separation
of property may refer to present or future property or both. It may be total or
partial. In the latter case, the property not agreed upon as separate shall
pertain to the absolute community. (213a)
Art. 145. Each spouse
shall own, dispose of, possess, administer and enjoy his or her own separate
estate, without need of the consent of the other. To each spouse shall belong
all earnings from his or her profession, business or industry and all fruits,
natural, industrial or civil, due or received during the marriage from his or
her separate property. (214a)
Art. 146. Both
spouses shall bear the family expenses in proportion to their income, or, in
case of insufficiency or default thereof, to the current market value of their
separate properties.
The liabilities of
the spouses to creditors for family expenses shall, however, be solidary.
(215a)
Comments:
Query: When can
separation of property govern the property relations of spouses who married
during the aegis of the Family Code:
a) If agreed upon in
marriage settlement
b) By judicial order
(Art. 134)
c) Judicial
Separation for Sufficient Cause (Art. 135)
d) Revival of
Previous Property Regime
e) Transfer of
Administration of Exclusive Property to Another Spouse During the Marriage pursuant
to Art. 110
f) Termination of
Marriage by DEATH and the surviving spouse remarries without liquidating assets
of previous marriage (Art. 103 for ACP and Art. 130 for CPG.
Chapter 7. Property
Regime of Unions Without Marriage
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 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 both faith.
(144a)
Comments:
Seven (7) scenarios
that may be carved out of Arts. 147 & 148
1. Man & woman
legally capacitated or living under a void marriage, live exclusively with each
other = co- ownership; equal
2. Woman or party
merely stays at home in order to provide care and maintenance of family and
household. (This was derived from Canadian common law in a dissent by Justice
L’ Heuren X-Dube, he stated that: “constructive trust should allow for the
recognition of the right of a spouse who contributes to family property through
unpaid labor, to share in the same property upon divorce”.)
3. One party in bad
faith, his ENTIRE SHARE is forfeited
4. Not legally
capacitated to marry or not living exclusively= co-ownership only with respect
to ACTUAL JOINT CONTRIBUTION OF MONEY, PROPERTY or INDUSTRY
5. Art. 148 and one
party in BF IS MARRIED TO ANOTHER= Entire share goes to ACP or CPG
6. 148 BF party in BF
is not married to another= ENTIRE SHARE goes to common children, surviving
descendants or innocent party
7. If both parties in
BF, shares forfeited only in favour of common children or surviving descendants
ONLY because there is no innocent spouse to speak of. However, because of the
rule that BF of one neutralizes or cancels the BF of the other, still in the
absence of common
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