Persons and Family: FAMILY CODE OF THE PHILIPPINES (Title II, Section 6

SECTION 6

LIQUIDATION OF THE ABSOLUTE COMMUNITY ASSETS AND LIABILITIES

Article 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 as provided in this Code. For purposes 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

by: Aneleth Valencia

Separate listing of:

Ø Absolute community

Ø Exclusive properties of each spouse

Payment of Debts and Obligations of the Absolute Community

Ø Absolute community assets; and

Ø If insufficient, the separate properties (solidarily)

The rule of forfeiture is that the absolute community of property or the conjugal partnership, as the case may be, shall be dissolved and liquidated, but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the community property or conjugal partnership property shall be forfeited in favor of the common children or, if there are none, the children of the guilty spouse by a previous marriage or in default of children, the innocent spouse.

Another rule is that 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 63(2) of the Family Code.

Article 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 one year from the death of the deceased spouse. If upon the lapse of the said 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)

by: Kristia Capio

DUTY OF THE SURVIVING SPOUSE

The law dictates that the surviving spouse should liquidate the community property upon termination of the marriage by death. This is normally done in the settlement of the estate of the deceased, whether testate or intestate. If no judicial settlement proceeding is established, the surviving spouse must liquidate the community property within one (1) year from the death of the deceased. If he/she does not comply with this requirement, and he/she sells properties of the community property, the same is void.

EFFECT OF FAILURE TO COMPLY WITH DUTY TO LIQUIDATE

When the surviving spouse fails to comply with the liquidation requirement within one year from the death of the deceased, and he/she gets married, the succeeding marriage shall be governed by the regime of mandatory complete separation of property. The reason for this is to prevent any bias to the compulsory heirs of the first marriage and to prevent fraud to creditors.

The law inflicts upon the following marriage the regime of mandatory complete separation of property if the spouse, whose community of property has been terminated, did not liquidate the same. This is an exception to Article 75 of the Family Code which says that in the absence of marriage settlements, or when the regime agreed upon is void, the system of absolute community of property shall govern.

EXAMPLE

Mr. A and Mrs. B are husband and wife but unfortunately they involved in a car accident that both of them died therefore their conjugal property shall be liquidated according to their testate or intestate proceedings but if Mr. A luckily survive the community property shall be administered by the estate or intestate proceedings of the deceased spouse.

Article 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 existing properties belong, the same shall be divided between the different communities in proportion to the capital and duration of each.

by: Janine May Gumangol

Applicability of the Article

Only to those marriages contracted BEFORE the effectivity of the Family Code.

Procedure in Liquidation of the Community Properties in case of Two or More Marriages where it is being carried out simultaneously

1. Adduce proof as determined by the rules of evidence

a. Determine the respective capital of each community property then the fruits and income as may be proven.

Evidence must be presented to prove that one property belongs to or was acquired during the existence of one or the other marriage.

2. In case of doubt, get the proportion of capital and duration of each marriage.

Case Digest

Dorotea Ocampo Vda Delizo versus Delizo

Fact:

Nicolas Delizo married Nicolas Villasfer in 1981. She died in 1907. He remarried. the second marriage with Dorotea de Ocampo lasted 46 years (1911-1957) until Nicolas' death. The act of partition was filed by Nicolas' two children from his first marriage and the heirs of her other deceased child (also from the first marriage). Then the lower court divided the properties in the following way: One-half (1/2) for the three children of the first marriage; One-fourth (One-fourth) for Dorotea; and One-fourth (1/4) for the children of both marriage (divided into 13 parts).

The Court of Appeal's point of contention was the Canaawan lands in Nueva Ecija. Other lands belong to second marriage:

* No proof of property owned by second marriage

* Testimony of Dorotea not persuasive

* Moises Patricio places acquisition sometime after the revolution: Rosa was still at this time.

Lower Court: the Conjugal partnership of first marriage transformed into co-ownership by Nicolas and his children, thus fruits belong to co-ownership.

Court of Appeals disagrees with the Lower Court; however, it was Dorotea and Nicolas who cultivated the land, hence the fruits of the land should go to the second marriage.

Dorotea elevated the case to SC. According to her, Canaawan properties were not part of his first marriages as Conjugal partnership of Gains as lands were homesteads. First marriage has possessory rights, but second marriage had exclusive right over it as it was during the second marriage that it was registered pursuant to Act 926.

Issue: To which Conjugal Partnership of Gains does the Canaawan lands belong to?

Held: Property belongs to the CPG of the second marriage as the land was only registered during second marriage. The Supreme Court held that if one marriage lasted for 18 years and the other for 46 years, the properties should be divided in the proportion of 18 to 46, if the capital of either marriage or the contribution of each spouse cannot be determined with mathematical certainty.

Principle: Deciding factor where homestead belongs to the time of registration NOT when homestead patent is issued as registration is the only time all requirements have been fulfilled.

CHAPTER 4

CONJUGAL PARTNERSHIP OF GAINS

SECTION 1

GENERAL RROVISIONS

Article 105. In case the future spouses agree in the marriage settlements that the regime of conjugal partnership of 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 partnership 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 255. (n)

Article 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)

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

Article 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)

by: Kristia Capio

In case the spouses agree upon the regime of conjugal partnership of gains, they shall place in a common fund the fruits of their separate properties and the income from their work or industry. Therefore, it has been held that fruits of paraphernal properties, which is the term used under the Civil Code to describe the separate property of the wife, form part of the assets of the conjugal partnership and are therefore subject to the payment of the debts and expenses of the spouses, but not to the payment of the personal obligation of the husband, unless it be proved that such obligations were productive of some benefit to the family.

No unilateral declaration by one spouse can change the character of a conjugal property. The conjugal nature of a property is determined by law and not by the will of one of the spouses.

Upon the dissolution of the marriage, the net gains or benefits obtained shall be divided equally between the spouses unless they have stipulated another proportion in their marriage settlement.

WHEN THE CONJUGAL PARTNERSHIP SHALL COMMENCE

The spouses should agree upon the conjugal partnership of gains, its application shall commence at the precise moment when the marriage ceremony is celebrated. What is considered is the hour and not the date of the marriage.

PROHIBITION ON WAIVER

No waiver of rights, interests, shares, and effects of the conjugal partnership of gains can be made during the marriage except upon judicial separation of property.

SPECIAL TYPE OF PARTNERSHIP

The conjugal partnership shall be governed by the rules on the contract of partnership in all that are not in conflict with what is expressly determined by the spouses in their marriage settlements. In case of conflict between the Civil Code on the rules on partnership and the provisions of the Family Code on the conjugal partnership of gains, the latter shall prevail.

SECTION 2

EXCLUSIVE PROPERTY OF EACH SPOUSE

Article. 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)

by: Janine May Gumangol

Example: a house brought by a wife into the marriage

Question: Prior to a woman's marriage, she purchased a piece of land on an installment basis and the balance was paid during the marriage. All receipts were issued in the name of the wife. Is the land exclusive or conjugal?

Answer: Exclusive since it was purchased even prior to the marriage; however, she must reimburse the conjugal partnership for whatever amount was used for the payment of the balance.

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

a. Property inherited during the marriage

b. Remissions and donations

Exception: Those acquired by occupation like fishing and hunting.

Gratuities and Pensions (Separate Property)

Unearned increment (increase in the value of exclusive property) belongs to the spouse concerned.

In case of Damage Caused by Accident

Physical or Moral Damage will be outsourced from exclusive funds

Hospitalization Expenses will be outsourced from conjugal funds

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

by: Evita Teope

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)

Exclusive properties are those mentioned in Article 109 of the Family Code. 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.

As the owner of his or her exclusive property, a spouse of age may mortgage, encumber, alienate, dispose of his or her exclusive property without obtaining the consent of the other. But the owner-spouse may transfer the administration of his or her exclusive properties to that of the other spouse in a public instrument.

Administration shall include entering into contracts, engaging in litigation, the collection of fruits, profits, and income arising from the property.

The owner spouse may, during the marriage, transfer the administration of his or her property to the spouse provided that the proper recording in the civil registry is made.

Even there is a transfer of administration, the owner spouse may still donate, encumber or alienate the property. He or she may also transfer administration to a stranger even without the consent of the other spouse.

Case: Naguit vs. Court of Appeals

Facts: The exclusive property of the wife was sold upon execution by the sheriff for the satisfaction of a particular decision finding her husband liable for a personal obligation.

Issue: May the wife file a separate action to annul the sale?

Ruling: The wife whose exclusive property was wrongfully levied upon can be considered a third person and is deemed a 'stranger to the action wherein the writ of execution was issued and is therefore justified in bringing an independent action to vindicate her right of ownership over the subject property.

Article 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)

Article 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)

Article 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)

Article 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)

Article 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)

Article 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

Article 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 provided. (160a)
by: Rose Ann Villanueva

The presumption only applies when the acquisition was during the marriage. Proof of acquisition during the coverture is essential for the operation of the presumption in favour of the conjugal ownership.

Balcodero v. CA

227 SCRA 303. October 23, 1993

Facts:

Aloy Bosing and Juliana Oday are spouses with three children but sometime in 1946, he left the conjugal home and started to live with Josefa Rivera with whom he sires one child named Josephine, herein petitioner. During their cohabitation, Aloy Bosing purchased a parcel of land in 1949, which he indicated that his civil status as married to Josefa. He even married said common law wife while his marriage with Oday was still subsisting.

Josefa and Josephine executed an extrajudicial partition and sale in favor of the latter and a Transfer of Certificate Title was issued in 1974.

In 1980, the real wife of Bosing and their children filed a petition for reconveyance of property.

Issue:

Whether or not the property remained as a conjugal property of Aloy and Juliana.

Ruling:

Yes. The presumption of conjugal ownership applies when the acquisition of the property occurred during the marriage. In the instant case, even if Josefa asserts that the subject property was under her name, the legal wife still has the rightful ownership over the property since there was no judicial separation of property regime was conducted.

Article 117. The following are conjugal partnership properties:

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;

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

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;

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;

Those acquired through occupation such as fishing or hunting;

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

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, 154, 155, 159)

by: Aneleth Anjolyn Valencia

In Flores vs. Flores, 48 Phil. 288, a man married three (3) times. During the second marriage, he bought a parcel of land with some conjugal funds. He was able to register the land after his second wife died. Under this situation, the land belongs to the partnership of the second marriage.

Flores and Flores v. Flores

G.R No. 24173, November 24, 1925

FACTS: A man was married three times. During his second marriage, he bought some land with conjugal funds. After the second wife died, the husband registered the land under his own name in the Torrens System. Later, he married for the third time. Who owns the land?

HELD: The conjugal partnership of the second marriage is the owner of the land. In Sec. 70 of the Land Registration Act (No. 496) it is among other things, expressly declared that nothing in that Act shall be construed to relieve registered land or the owners thereof from any rights incident to the relation of husband and wife... except as otherwise provided in the Act. Property acquired during the marriage with conjugal funds pertain to the conjugal partnership regardless of the form in which the title is then or thereafter taken.

Article 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)

by: Evita Teope

by

This provision contemplates the situation where a property is bought on an installment basis, and is paid partly prior to and ended during the marriage.

In this situation, the ownership of the said property is determined by the time when the title is vested.

- Before the marriage, the ownership is vested to those exempted from the conjugal partnership under paragraph 1 of Article 109 as the property is brought to the marriage by the spouses.

- After the marriage (ceremony), it is part of the Community Partnership Gains (CPG), in which the buy-spouse who contracted the purchase is entitled to be reimbursed by the partnership.

Also, this provision contemplates a reimbursement upon liquidation of the partnership. Liquidation of the partnership is the process of closing the partnership and distributing its assets. The reason for this necessity is that there can be no absolute sharing until after liquidation.

Article 119. Whenever an amount or credit payable within a period of time belong 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)

by: Kristia Capio

In a situation where one of the spouses has a credit payable in installments or a credit which will be fully paid during the marriage, all payments made on the principal during that marriage shall belong exclusively to the spouse who owns the credit. Interest on the principal falling due during marriage shall belong to the conjugal partnership, as interest is considered a fruit derived from a particular property.

Article 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

Article 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)

Article 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)

Article 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)

by: Evita Teope

This provision stipulates that the winnings can be considered as an income to the
common property and to the separate property; therefore, it makes it a part of
the conjugal partnership of gains.

The conjugal partnership property must not be put to risk, hence, losses shall be
borne to the loser only and shall not be chargeable to the conjugal partnership
property.

Gambling is never allowed by the law. In case of losses incurred by one of the
spouses, he/she shall answer the same with his/her exclusive properties.This is
to discourage it as it tends to dissipate or squander the properties of the family.
If a spouse however wins, the winnings would form part of the of the absolute
community of properties, because it is considered as earnings or properties
acquired during the marriage.

It pays to repeat that the purpose of the law is to punish the gambler-spouse, for
gambling, as a rule, dissipates the community of properties.

SECTION 5

ADMINISTRATION OF THE CONJUGAL PARTNERSHIP PROPERTY

Article 124. The administration and enjoyment of the conjugal

partnership shall belong to both spouses jointly. In case ofdisagreement,

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)

Article 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

Article 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)

Article 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)

by: Rose Ann Villanueva

The regime of conjugal partnership shall remain even if there is separation in fact between the husband and wife.

Article 128. 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 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)

by: Aneleth Anjolyn Valencia

Explanation:

The article above deals with unjust abandonment (which we have discussed in Article 100 of this Code) of one spouse by the other spouse.

Again, as stated and discussed in Article 100 and the above article, if a spouse abandons another without just cause, he or she may petition the court for receivership, judicial of property or for authority to be the sole administrator of the conjugal partnership property.

SECTION 7

LIQUIDATION OF THE CONJUGAL PARTNERSHIP OF ASSETS AND LIABILITIES

Article 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 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)

by: Aneleth Anjolyn Valencia

Note:

* In the dissolution of the conjugal partnership regime, it is necessary in the inventory to separate the listing of the conjugal and the separate assets.

* In reference with the provision number three, if one of the spouses owns a lot where a building was built with conjugal funds, on the assumption that the value of the building is more than that of the land, the conjugal partnership shall reimburse the spouse owning the land during the liquidation of the partnership. This is so because, it is only when the value of the land has been paid to the spouse that ownership shall be vested in the partnership.

Article 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 proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property shall be liquidated either judicially or extra judicially within one year from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumberance involving the conjugal partnership property of the terminated marriage shall be void.

by: Rose Ann Villanueva

The community property after the death of the spouse shall be inventoried, administered and liquidated, and the debts or liabilities incurred for the sake of the family shall be paid by the testate and intestate proceedings of the deceased spouse.

Extra-judicial partition by the surviving spouse and the heirs of the deceased spouse can be done provided that there are no debts and that all concerned are of legal age and in the case of minors they must be duly represented by their judicial guardians.

It must be made in a public instrument filed in the office of the register of deeds.

An ordinary judicial action for partition can be filed since the liquidation of the conjugal partnership is already implied.

Article 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)
by: Rose Ann Villanueva

The liquidation of the assets during the first marriage should be done after the death of the spouse of the first marriage in cases where the surviving spouse remarries.

If the first marriage lasted for 10 years and the second marriage lasted for only 5 years, and the values of the respective separate property have been approximately equal, the first marriage will have double those of the second.

Article 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)
by: Rose Ann Villanueva

Article 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)
by: Rose Ann Villanueva

The actual property remaining determines the assets. (After the support for family during the liquidation have been deducted)

When the liabilities exceed the assets no support can be given to the spouse who had no paraphernal property. Simply because there is no property to be partitioned.

The sale of conjugal property by the surviving spouse as to the share of the deceased spouse is void except when the property that is sold is inherited by the surviving spouse.

CHAPTER 5:

SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON PROPERTY BY ONE SPOUSE DURING MARRIAGE

Article 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)
by: Rose Ann Villanueva

Melecio Domingo vs Spouses Molina, et al.

G.R. No. 20274. April 20, 2016

Brion, J.

Facts:

     A parcel of land was bought by the spouses Domingo on June 15, 1951 with Original Certificate of Title (OCT) No. 16354.  Anastacio Domingo has always borrowed money from the respondents Molina.

     Ten years after Flora Domingo’s death, Anastacio sold his interest over the land to spouses Molina in payment for his debts. In 1986, Anastacio died. The entire one-half undivided portion of the said land with Transfer Certificate of Title was transferred to the spouses Molina.

     A Complaint for the Annulment of Title and Recovery of Ownership against the spouses Molina as filed on May 17, 1999 by Melecio Domingo, herein petitioner. He alleged that the subject property served as collateral for the money borrowed and his father Anastacio could not have sold the property because his father did not obtain his mother’s consent. Melecio claims that Genaro Molina must have falsified the document transferring Anastacio and Flora’s one-half undivided interest over the land. He further declares that he has been occupying the said property from the time of Anastacio’s death until the time he filed the complaint.

     The spouses Molina countered the petitioner’s claim stating that Anastacio surrendered the property in return for his debts and that petitioner was aware of the disputed sale. The respondents also asserted that the subject property has been with their possession before it was even registered in their names and have religiously paid the property’s real property taxes.

     The RTC and the CA ruled in favor of the respondents.

Issue:

     Whether or not consent is necessary to dispose a conjugal property by the surviving spouse to answer for conjugal liabilities.

Ruling:

     No. Under Article 130 of the Family code upon termination of the marriage by death, conjugal property shall be liquidated in the same proceeding for the settlement of the estate of the deceased, without prejudice to the vested rights already acquired in accordance with the civil code or other laws.

     Anastacio as co-owner had the right to freely sell and dispose of his undivided interest, but not the interest of the co-owners.

Article 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 settlement has abused that power; and
(6) That at the time of the petition, the spouses have been separated in fact for at least one (1) year and reconciliation is highly improbable.

In the cases provided for in nos. 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)

by: Kristia Capio

CIVIL INTERDICTION

Civil interdiction deprives the offender during the time of his or her sentence of the rights of parental authority, or guardianship, the right to manage his property and of the right to dispose of such property by any act.

DECLARATION OF ABSENCE

Two years having elapsed without any news about the absentee or since the receipt of the last news, and five years in case the absentee has left a person in charge of the administration of his property, his absence may be declared (Article 384, Civil Code).
The final decision of the court declaring the spouse absent is enough for the court to approve a judicial separation of property in this case.

LOSS OF PARENTAL AUTHORITY

Loss of parental authority under Article 135(3) refers to the loss of such authority over the common child, whether legitimate or illegitimate, of the spouse of the petitioner and the petitioner, or over the child, whether legitimate or illegitimate, of the spouse of the petitioner with another person.

Moreover, in the event that loss of parental authority has been judicially decreed against a spouse in connection with his or her legitimate child by a previous marriage, or an illegitimate child with another person, it is but proper to allow the other spouse to immediately ask for a judicial separation of property so that his or her share and interest in the absolute community property or the conjugal partnership property can be immediately allocated to her.

ABANDONMENT AND FAILURE TO COMPLY WITH OBLIGATIONS TO THE FAMILY

A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning and with an intent to absolutely forego his or her family duties.

ABUSE OF ADMINISTRATION

For “abuse” to exist, it is not enough that the spouse decided the power of administration does an act or acts prejudicial to the other spouse nor if he or she commits acts injurious to the community of property or the conjugal partnership property, for these may be the result only of negligent administration.

In case such spouse abuses his or her powers of administration, judicial separation of property may be availed by the aggrieved spouse to avoid additional reduction of his or her interest in the properties.

SEPARATION IN FACT

At the time of the petition, the spouses must have been separated in fact for at least one year and reconciliation is highly improbable.

CASE

DAVID A. NOVERAS vs LETICIA T. NOVERAS

G.R. No. 188289. August 20, 2014.

PEREZ, J.

Facts:

David and Leticia Noveras are US citizens who acquired properties in the USA and in the Philippines during the marriage. They have two children. According to Leticia, sometime in September 2003, David abandoned his family and lived with his mistress. Furthermore, she claimed that they executed a joint affidavit where he renounced all his rights and interest in the conjugal and real properties situated in the Philippines.

After learning of David’s extra-marital affair, Leticia filed a petition for divorce before the Superior Court of California. Divorce was granted and judgment was duly entered on June 29, 2005. The California court granted to Leticia the custody of her two children, as well as all the couple’s properties in the USA.

Leticia then filed a petition for Judicial Separation of Conjugal Property before the RTC of Baler, Aurora. She relied on joint affidavit and David’s failure to comply with his obligation under the same. David demanded that the conjugal partnership properties, which also include the USA properties, be liquidated since a divorce decree was already entered.

On appeal, the Court of Appeals modified the decision and directed the equal division of the Philippine properties between the spouses and both should pay their children the amount of 520,000.00 pesos.

In the present petition, David insisted that Court of Appeals should have recognized the California judgment which awarded the Philippine properties to him and allowing Leticia to share in the Philippine properties is tantamount to unjust enrichment considering that she was already granted all US properties by the California court.

Issue:

Whether or not the filing of the judicial separation of property is proper in accordance with the Family Code.

Ruling:

Yes. Art 135 of the Family Code provides that any of the following shall be considered sufficient cause for judicial separation of property: (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.

The records of this case are replete with evidence that both parties had indeed separated for more than a year and that reconciliation is highly improbable. First, it is undisputed that the spouses had been living separately since 2003 when David decided to go back to the Philippines to set up his own business. Second, Leticia heard from her friends that David has been cohabiting with Estrellita Martinez, who represented herself as Estrellita Noveras. Editha Apolonio, who worked in the hospital where David was once confined, testified that she saw the name of Estrellita listed as the wife of David in the Consent for Operation form. Third and more significantly, they had filed for divorce and it was granted by the California court in June 2005.

Having established that Leticia and David had actually separated for at least one year, the petition for judicial separation of absolute community of property should be granted.

Article 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.
by: Janine May Gumangol

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.

Article 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.
by: Janine May Gumangol

Note that when the separation of property is decreed, the absolute community or the conjugal partnership shall be liquidated.

Liability for support during the pendency of the proceedings for separation of property. Support for the spouses and their children shall be taken from the absolute community or from the conjugal partnership.

Article 138. After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply.
by: Janine May Gumangol

Article 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.
by: Janine May Gumangol

Article 140 The separation of property shall not prejudice the rights previously acquired by creditors.
by: Janine May Gumangol

Article 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.
by: Janine May Gumangol

Article 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.
by: Janine May Gumangol

CHAPTER 6

REGIME OF SEPARATION OF PROPERTY

Article 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)

Article 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)

Article 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)

Article 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 liability of the spouses to creditors for family expenses shall, however, be solidary. (215a)

by: Aneleth Anjolyn Valencia

One of the advantages of Article 143 is that there will be little trouble in terms of personal expenses, except of course the "family expenses", as each spouse should proportionately bear it. Aside from the system of complete separation of property, there can also be a partial separation of property. In the latter case, it can be said that the conjugal partnership of gains or the absolute community exist.

If in the marriage settlement the future spouses agreed on the system of complete separation of property, this cannot later on be converted during the marriage into the conjugal partnership of gains. There is no provision of law authorizing this. On the other hand, the law expressly provides that the absolute community of property between spouses shall commence at the precise moment the marriage is celebrated. Any stipulation, express or implied for the commencement of the community regime at any other time shall be void.

System of Separation of Property - it is the matrimonial property regime agreed upon in the marriage settlement by the future spouses whereby each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate and earnings without the consent of the other, with each spouse proportionately bearing the family expenses, proportionate to their earnings and profits of their respective property.

Kinds of Separation of Property Systems:

a. Separation of Property may refer to:

1) present property

2) future property

3) both

b. Separation may also be:

1) total

2) partial

ry. (215a)

CHAPTER 7

PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE

Article 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 or of 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)

by: Kristia Capio

Article 147 of the Family Code speaks of a situation where the man and the woman who live together as husband and wife without the benefit of marriage are capacitated to live as husband and wife or marry each other. If the man is married, or if the woman is married, the law does not apply because they are not capacitated to marry each other due to the legal impediment to marry.

APPLICABILITY

1. man and woman
2. living together as husband and wife
3. with capacity to marry (Art.5 without any legal impediment)
a. at least 18 years old
b. not Art. 37 (incestuous void marriage)
c. not Art. 38 (void marriage by reason of public policy)
d. not bigamous
4. other void marriages due to absence of formal requisite

SALARIES AND WAGES

Their salaries and wages shall be owned in equal shares.

Example:
If both of them are working, their salaries and wages are owned in equal shares. So that if X, the man, has a salary of P10,000.00 per month, and Y, the woman, has a salary of P8,000.00 per month, the law considers them as owning their salaries in equal shares or P9,000.00 each.

PRESUMPTION OF CO-OWNERSHIP

Even if the man is the only one employed and the properties which were acquired during their coverture came from the salaries or wages of the man, the law presumes that the parties are co-owners of the said properties.

FORFEITURE

When only one of the parties is in good faith, the share of the party in bad faith shall be forfeited:
1. In favor of their common children
2. 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
3. In the absence of such descendants, such share belongs to the innocent party

CASE

FRANCISCO VS. MASTER IRON WORKS CONSTRUCTION CORPORATION

G.R. No. 151967, February 16, 2005.

CALLEJO, SR., J.

Facts:

Josefina Castillo was 24 years old when she and Eduardo Francisco got married on January 1983. The latter was then employed as Vice President in a Private Corporation. Josefina acquired two parcels of land where Imus Bank executed a deed of absolute sale in favor of Josefina, married to Eduardo. An affidavit of waiver was executed by Eduardo where he declared that prior to his marriage with Josefina, the latter purchased the land with her own savings and that he waived whatever claims he had over the property. When Josefina mortgaged the property for a loan, Eduardo affixed his marital conformity to the deed. In 1990, Eduardo who was then a General Manager, bought bags of cement from defendant but failed to pay the same. The latter filed a complaint for recovery and trial court rendered judgment against Eduardo. The court then issued a writ of execution and the sheriff issued a notice of levy on execution over the alleged property of Josefina for the recovery of the balance of the amount due under the decision of the trial court. Petitioner filed a third party claim over the 2 parcels of land in which she claimed as her paraphernal property.

Issue:

Whether or not the subject property is the conjugal property of Josefina and Eduardo.

Ruling:

The Court ruled that petitioner failed to prove that she acquired the property with her personal funds before her cohabitation with Eduardo and that she was the sole owner. The Deed of Absolute Sale on record showed it was issued after her marriage. Their case fall under Article 148 and since they got married before the Family Code, the provision, pursuant to Art 256, can be applied retroactively if it does not prejudice vested rights. Petitioner likewise failed that she had any vested right.

Where the parties are in a void marriage due to a legal impediment that invalidates such marriage, Art 148 should be applied. In the absence of proof that the wife/husband has actually contributed money, property, or industry to the properties acquired during such union the presumption of co-ownership will not arise.

The petition was denied for lack of merit. The decision of CA that the property was conjugal was affirmed.

Article 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 evidence 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 a valid marriage. If the party who acted in bad faith is not validly married to another, his or hers shall be forfeited in the manner provided in the last paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith. (144a) If any of the requirements under Article 147 is absent, Article 148 shall apply.
by: Evita Teope

The parties are deemed co-owners of the property acquired during the cohabitation only upon proof of actual contribution to its acquisition. In the absence of proof, the co-ownership cannot rise.

There are relations contemplated under Article 148. These include (1.) that man and woman living together as husband and wife but are not capacitated to marry; (2.) adulterous relationship even if it occurred prior to the effectivity of the Family Code; (3.) bigamous or polygamous marriage; (4.) incestuous void marriages under Article 37; and (5.) void marriages by reason of public policy under Article 38.

Under the new FC, if the said property were bought through a joint contribution of money, property, or industry by both parties to the bigamous relationship, the share of the bigamous husband shall accrue to the absolute community property or conjugal partnership existing in his or her legitimate marriage.

In case both parties acted in bad faith, such as when a spouse and his bigamous wife who happens to be a relative by consanguinity within the first civil degree of the former, jointly contribute to their ownership while living together, with both contributing their salaries, the co-ownership shall be liquidated as follows: (a.) the share of the spouse who is obviously in bad faith shall accrue to the absolute community property or conjugal partnership of his existing valid marriage; while (b.) the share of the bigamous-cousin-wife who is also in bad faith shall be forfeited in favor of the common children.

In case of default or waiver of their common children or their descendants, each vacant share shall belong to the respective surviving descendants.

In the absence of which, share shall belong to the innocent party. Since there is no innocent party, the share of the bigamous-cousin-wife shall be given to her (the bigamous-cousin-wife).

In this regard and for purposes of the share of the bigamous-cousin-wife only in considering further that both spouses are in bad faith, they shall be considered as if they are both in good faith and therefore the share of the bigamous-cousin-wife shall be given to her.

An example of the applicability of the second paragraph of the Article is as follows:

When the marriage is bigamous.

Thus, if a husband is married to Wife no. 1, and contracts a bigamous marriage with Wife no. 2, who will own the following?

a. Php 10 million earned by the husband alone.

b. Php 30 million earned by the second wife alone, both having earned during the second marriage.

The answer is that the Php 10 million will all go to the conjugal or community property of the first wife and the husband the Php 30 million will all go to the second wife.

This rule is applicable to joint deposits of money and evidence of credit like securities and bonds.

TITLE V

THE FAMILY

CHAPTER 1

THE FAMILY AS AN INSTITUTION

Article 149. The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect. (216a, 218a)

Article 50. Family relations include those:

(1) Between husband and wife;

(2) Between parents and children;

(3) Among brothers and sisters, whether of the full or halfblood. (217a)

Article 151. No suit between members of the same family shall prosper unless it should appear from the verified complaint or petition that earnest efforts toward a compromise have been made, but that the same have failed. If it is shown that no such efforts were in fact made, the same case must be dismissed.

This rules shall not apply to cases which may not be the subject of compromise under the Civil Code. (222a)

CHAPTER 2

THE FAMILY HOME

Article 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a)

Article 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneﬁciaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a)

by: Rose Ann Villanueva

General Rule: Family home is exempt from execution, forced sale or attachment

Family home- dwelling house where they and their family reside, and the land on which it is situated.

Family home is deemed constituted on a house and land from the time it is actually occupied as a family residence.

Must be built on the property of the spouses, not on the property of another

Can a home occupied by in-laws be considered as a family home?

Yes. The law provides that the occupancy of such family home either by the owner or by any beneficiaries must be actual.

Such beneficiaries are the husband and wife, or an unmarried person who is the head of the family, their parents, ascendants, descendants, brothers and sisters, legitimate or illegitimate living in the family home. It may also include the in-laws. But the law definitely excludes maids and overseers.

What is the reason for exempting the family home from attachment, levy or forced sale?

The reason is to avoid a situation where a family shall be homeless, such that it would become a lepper or burden to society. The rule is not, however absolute, as when an obligation or liability was incurred by the owner prior to the constitution of the family home.

Florante F. Manacop vs. Court of Appeals

G.R. No. 97898. August 11, 1997

Panganiban, J.

Facts:

     Petitioner and his wife purchased a residential lot with a bungalow with Transfer ertificate Title No. 1741800 on March 10, 1972. On March 17, 1986, a complaint was filed against the petitioner and his company for having incurred a debt amounting to P 3,359,218.45. Instead of filing an answer, they entered into a compromise agreement with the private respondent.



     The trial court approved the compromise agreement on April 20, 1986. A motion for execution was filed by the respondent and was approved by the lower court on September 23, 1986. Eventually the sheriff levied on several vehicles and other personal properties of the petitioner which was auctioned and sold in partial fulfillment of the judgment debt.

     A motion to quash the alias writs of execution and to stop the sheriff from continuing to enforce them on the ground that the judgment was not yet executor was filed by the petitioner on August 1, 1989.

     Private respondent in response, alleged that the alias writ of execution had been partially implemented; petitioner and his company were in bad faith in refusing to pay their debts, notwithstanding that they had collected the total amount of P 41,664,895.56. Respondent further alleged that the property covered by TCT No. 174180 could not be considered a family home because petitioner and his family were already living abroad and having been acquired in 1972, should have been judicially constituted as a family home to exempt it from execution.

     The lower courts and the Court of Appeals ruled in favor of the respondent.

Issue:

     Whether or not a writ of execution issued before the effectivity of the Family Code can be executed on a Family home constituted under the provisions of the said Code.

Ruling:

     Yes. While it is true that under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially or extra judicially as required in the Civil Code. If the family actually resides in the premises, it is therefore, a family home as contemplated by law.

     In the present case, the residential house became a family home y operation of law under Article 153 of the Family Code. The contention of the petitioner that it should be considered as a family home from the time it was occupied by the petitioners in 1960 is untenable, since the effectivity of the code was on August 3, 1988. The debt or liability of the petitioner was incurred way before the effectivity of the Code. The money and judgment arising therefrom was rendered on January 29, 1988 and therefore does not fall und

Article 154. The beneficiaries of a family home are:

(1) The husband and wife, or an unmarried person who is the head of a family; and

(2) Their parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or illegitimate, who are living in the family home and who depend upon the head of the family for legal support. (226a)

Article 155. The family home shall be exempt from execution, forced sale or attachment except:

(1) For non-payment of taxes;

(2) For debts incurred prior to the constitution of the family home;

(3) For debts secured by mortgages on the premises before or after such constitution; and

(4) For debts due to laborers, mechanics, architects, builders, materialmen and others who have rendered service or furnished material for the construction of the building. (243a)

by: Aneleth Anjolyn Valencia

While those in numbers 1 and 2 mentioned in Article 154 are all referred to as beneficiaries, the family home is composed of the spouses or unmarried head of the family and the dependents. Also included in the beneficiaries are the grandparents and grandchildren.

Modequillo vs. Breva

G.R. No. 86355, May 31, 1990

Facts:

Judgment was rendered by the Court of Appeals ordering defendant to pay a sum of money to plaintiff. The judgment having become final and executory, a writ of execution was issued by the Regional Trial Court to satisfy the judgment on the goods and chattels of defendants. The sheriff levied on a parcel of residential land. A motion to quash the levy on execution was filed by the defendant, alleging therein that the residential land is where the family home is built since 1969 which is, prior to the commencement of the case, is exempt from execution, forced sale or attachment under Articles 152 and 153 of the Family Code. The trial court denied the motion to quash.

Held:

The residential house and lot of defendant was not constituted as a family home, whether judicially or extra-judicially under the Civil Code. It became a family home by operation of law under Article 153 of the Family Code. It is deemed constituted as a family home upon the effectivity of the Family Code on August 3, 1988.

Defendant’s contention that it should be considered as a family home from the time it was occupied by him and his family in 1969 is not well-taken. Under Article 162 of the Family Code, “The provisions of this Chapter shall also govern existing family residences insofar as said provisions are applicable.” It does not mean that Articles 152 and 153 of said Code have a retroactive effect such that all existing family residences are deemed to have been constituted as family

homes at the time of their occupation prior to the effectivity of the Family Code and are exempt from execution for the payment of obligations incurred before the effectivity of the Family Code.

Article 162 simply means that all existing family residences at the time of the effectivity of the Family Code are considered family homes and are prospectively entitled to the benefits accorded to a family home under the Family Code. Article 162 does not state that the provisions of Chapter 2, Title V have a retroactive effect. Defendant’s family home is not exempt from the execution of the money judgment. The debt or the liability, which was the basis of the judgment that arose, was incurred at the time of the vehicular accident on March 16, 1976 and the money judgment, arising therefrom rendered by the appellate court on 29 January 1988. Both preceded the effectivity of the Family Code on 3 August 1988. This case does not fall under the exemptions from execution provided in

the Family Code.

Under the Family Code, a family home is deemed constituted on a house and lot from the time it is occupied as a family residence. There is no need to constitute the same judicially as was required in the Civil Code. If the family actually resides in the premises, it is, therefore, a family home as contemplated by law. Thus, the creditors should take the necessary precautions to protect their interest before extending credit to the spouses or to the head of the family who owns the home.
er the exemptions of execution provided in the Family Code

Article 156. The family home must be part of the properties of the absolute community or the conjugal partnership, or of the exclusive properties of either spouse with the latter’s consent. It may also be constituted by an unmarried head of a family on his or her own property.

Nevertheless, property that is the subject of a conditional sale on installments where ownership is reserved by the vendor only to guarantee payment of the purchase price may be constituted as a family home. (227a, 228a)
by: Janine May Gumangol

*The property purchased under an ongoing installment plan may be constituted as a family home.

Article 157. The actual value of the family home shall not exceed, at the time of its constitution, the amount of three hundred thousand pesos in urban areas, and two hundred thousand pesos in rural areas, or such amounts as may hereafter be fixed by law.

In any event, if the value of the currency changes after the adoption of this Code, the value most favorable for the constitution of a family home shall be the basis of evaluation.

For purposes of this Article, urban areas are deemed to include chartered cities and municipalities whose annual income at least equals that legally required for chartered cities. All others are deemed to be rural areas. (231a)

Article 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter’s spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a)

by: Kristia Capio

The law only provides the value of the family home depending upon its location. The family home can be the object of a contract, like sale, assignment or donation. It can be laden as it can be used to secure the payment of an obligation. However, it must be with the written consent of the person constituting it, or his spouse, and a majority of the beneficiaries of legal age. If there is a conflict, the court shall decide for them.

Example:

On 1989 house was built in the city worth P300, 000 and was occupied. On 2005 the house was renovated and the value was increased to P900, 000. Can it be considered a family home?

Answer: Yes. It is still a family home. However, it shall not be exempted from execution, forced sale or attachment.

REQUIREMENTS FOR THE SALE, ALIENATION, DONATION, ASSIGNMENT, OR ENCUMBRANCE OF THE FAMILY HOME

1. the written consent of the person constituting it,
2. his/her spouse, and
3. majority of the beneficiaries of legal age

ALIENATION - The transfer of title or ownership of real property from one person to another by deed, lease or conveyance.

Example:

A and B sold their house in order to pay their debts. They have 4 children aging 17, 16, 14 and 13. They protested accompanied by their aunt about the selling of their house. Their contention is that, as children, they are considered as third parties. Are the children right?

Answer: No, the children are not right because there can be no further need for concurrence if all the beneficiaries are not ―of legal age.

Article 159. The family home shall continue despite the death of one or both spouses or of the unmarried head of the family for a period of ten years or for as long as there is a minor beneficiary, and the heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the family home. (238a)
by: Janine May Gumangol

This rule is applicable regardless of whoever owns the property or constituted the family home.

Art. 160. When a creditor whose claims is not among those mentioned in Article 155 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home is actually worth more than the maximum amount fixed in Article 157, he may apply to the court which rendered the judgment for an order directing the sale of the property under execution. The court shall so order if it finds that the actual value of the family home exceeds the maximum amount allowed by law as of the time of its constitution. If the increased actual value exceeds the maximum allowed in Article 157 and results from subsequent voluntary improvements introduced by the person or persons constituting the family home, by the owner or owners of the property, or by any of the beneficiaries, the same rule and procedure shall apply.

At the execution sale, no bid below the value allowed for a family home shall be considered. The proceeds shall be applied first to the amount mentioned in Article 157, and then to the liabilities under the judgment and the costs. The excess, if any, shall be delivered to the judgment debtor. (247a, 248a)

by: Evita D Teope

Under this provision, there is a need for a court decision before a judgment creditor can avail of the privilege.

Suppose a creditor has a judgment in his favor directing the debtor to pay Php 500 000.00 and said debtor owns a house worth Php 1M. The bidders cannot bid below Php 300 000.00. If the family home was sold for Php 700 000.00 only, the sheriff had to give the debtor the amount of Php 300 000.00 first then give the balance of Php 400 000.00 to the judgment creditor.

The idea that the family house is immune to Php 300 000.00 is for the debtor to be able to build a new family home in order that he or she and the family will not be homeless.

Article 161. For purposes of availing of the benefits of a family home as provided for in this Chapter, a person may constitute, or be the beneficiary of, only one family home. (n)

Artcle 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. (n)

TITLE VI

PATERNITY AND FILIATION

CHAPTER 1

LEGITIMATE CHILDREN

Article 163. The filiation of children may be by nature or by adoption. Natural filiation may be legitimate or illegitimate. (n)

Article 164. Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (55a, 258a)
by: Evita D Teope

While paternity* is the civil status relationship of the father [mother] to the child, filiation is the civil status or relationship of the child to the father or mother.

There are two (2) classifications of filiation which is filiation by nature (legitimate or illegitimate) and by adoption.

Also, there are distinctions between legitimate and illegitimate children. As to use of the surname, the legitimate child has the right to bear the surname of the father while the illegitimate ones are required to use the mother's name as provided under Article 176 of the Family Code.

On February 24, 2004, RA No. 9255 entitled "An Act Allowing Illegitimate Children To Use The Surname Of Their Father, Amending for the Purpose Article 176 of Executive Order No. 209, otherwise known as the "Family Code of the Philippines" amended Article 176 of the Family Code.

Under section 1 of RA no. 9255, illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by the father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child."

Hence, illegitimate children may now bear the surname of their father if their filiation has been expressly recognized by the father through the birth certificate or when an admission in a public document (that which is notarized) or private handwritten instrument is made by the father. Although as for the legitime, each illegitimate child shall consist of one- half (1/2) of the legitime of a legitimate child.

Is the child considered legitimate although the mother may have declared against its legitimacy?

Yes. The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (Art. 167, Family Code of the Philippines)

Article 165. Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code. (n)

Article 166. Legitimacy of a child may be impugned only on the following grounds:

(1) That it was physically impossible for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of:

(a) the physical incapacity of the husband to have sexual intercourse with his wife;

(b) the fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or

(c) serious illness of the husband, which absolutely prevented sexual intercourse;

(2) That it is proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the instance provided in the second paragraph of Article 164; or

(3) That in case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation, or undue influence. (255a)

Article 167.The child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. (256a)
by: Rose Ann Villanueva

Camelo Cabatania vs. Court of Appeals and Camelo Regodos

G.R. No. 124814. October 21, 2004

Corona, J.

Facts:

     A petition for review on certiorari under Rule 45 of the Rules of Court assailing the decision of the Court of Appeals which in turn affirmed the decision of the Regional Trial Court of Cadiz City, was filed by Camelo Cabatania.



     Florencia Regodos filed a petition for recognition and support in behalf of his minor son Camelo Regodos. Florencia stated that she met petitioner while working as a maid in the early part of 1981. Respondent claimed that she had sexual intercourse with petitioner and that petitioner promised to support her if she got pregnant. She further claims that after that she found out that she was pregnant, the sexual intercourse was repeated in March 1982.  Petitioner’s wife sent her home on suspicion that she was pregnant. She delivered her child on September 9, 1982 on a house allegedly rented by the petitioner.

     In response, the petitioner asserted that he hired Florencia as a servant at home and that during the course of her employment, she would often go home to her husband in the afternoon and return to work the following morning which displeased the petitioner’s wife and later on sent her home and was told to look for another job. Petitioner admitted having sexual intercourse with Florencia but argued that Florencia was already pregnant with the child of her husband at that time.

     The RTC and CA ruled in favor of the respondent, hence this appeal.

Issue:

     Whether or not the child can be recognized as an illegitimate son of the petitioner when in fact the child was born within a valid marriage.

Ruling:

     No. In the case at bar, respondent provided insufficient evidence that may be considered in asserting the child’s filiation with the petitioner and since respondent has a valid subsisting marriage, under Article 167 of the Family Code, the child shall be considered legitimate although the mother may have declared against its legitimacy or may have been sentenced as an adulteress.

Persons and Family

Sunday, December 16, 2018

FAMILY CODE OF THE PHILIPPINES (Title II, Section 6 - Title VI, Chapter 1)

WHEN THE CONJUGAL PARTNERSHIP SHALL COMMENCE

PROHIBITION ON WAIVER

SPECIAL TYPE OF PARTNERSHIP

SECTION 4

CHARGES UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP

SECTION 5

ADMINISTRATION OF THE CONJUGAL PARTNERSHIP PROPERTY

SECTION 6

DISSOLUTION OF CONJUGAL PARTNERSHIP REGIME

SECTION 7

LIQUIDATION OF THE CONJUGAL PARTNERSHIP OF ASSETS AND LIABILITIES

CHAPTER 5:

SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON PROPERTY BY ONE SPOUSE DURING MARRIAGE

CIVIL INTERDICTION

Civil interdiction deprives the offender during the time of his or her sentence of the rights of parental authority, or guardianship, the right to manage his property and of the right to dispose of such property by any act.

DECLARATION OF ABSENCE

LOSS OF PARENTAL AUTHORITY

ABANDONMENT AND FAILURE TO COMPLY WITH OBLIGATIONS TO THE FAMILY

A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning and with an intent to absolutely forego his or her family duties.

ABUSE OF ADMINISTRATION

SEPARATION IN FACT

At the time of the petition, the spouses must have been separated in fact for at least one year and reconciliation is highly improbable.

CASE

DAVID A. NOVERAS vs LETICIA T. NOVERAS

G.R. No. 188289. August 20, 2014.

PEREZ, J.

Facts:

Issue:

Whether or not the filing of the judicial separation of property is proper in accordance with the Family Code.

Ruling:

CHAPTER 6

REGIME OF SEPARATION OF PROPERTY

CHAPTER 7

PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE

APPLICABILITY

SALARIES AND WAGES

PRESUMPTION OF CO-OWNERSHIP

Even if the man is the only one employed and the properties which were acquired during their coverture came from the salaries or wages of the man, the law presumes that the parties are co-owners of the said properties.

FORFEITURE

CASE

REQUIREMENTS FOR THE SALE, ALIENATION, DONATION, ASSIGNMENT, OR ENCUMBRANCE OF THE FAMILY HOME

No comments:

Post a Comment

Blog Archive

Sunday, December 16, 2018

FAMILY CODE OF THE PHILIPPINES (Title II, Section 6 - Title VI, Chapter 1)

WHEN THE CONJUGAL PARTNERSHIP SHALL COMMENCE

PROHIBITION ON WAIVER

SPECIAL TYPE OF PARTNERSHIP

SECTION 4 CHARGES UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP

SECTION 5 ADMINISTRATION OF THE CONJUGAL PARTNERSHIP PROPERTY

SECTION 6 DISSOLUTION OF CONJUGAL PARTNERSHIP REGIME

SECTION 7 LIQUIDATION OF THE CONJUGAL PARTNERSHIP OF ASSETS AND LIABILITIES

CHAPTER 5: SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON PROPERTY BY ONE SPOUSE DURING MARRIAGE

CIVIL INTERDICTION

Civil interdiction deprives the offender during the time of his or her sentence of the rights of parental authority, or guardianship, the right to manage his property and of the right to dispose of such property by any act.

DECLARATION OF ABSENCE

LOSS OF PARENTAL AUTHORITY

ABANDONMENT AND FAILURE TO COMPLY WITH OBLIGATIONS TO THE FAMILY

A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning and with an intent to absolutely forego his or her family duties.

ABUSE OF ADMINISTRATION

SEPARATION IN FACT

At the time of the petition, the spouses must have been separated in fact for at least one year and reconciliation is highly improbable.

CASE

DAVID A. NOVERAS vs LETICIA T. NOVERAS G.R. No. 188289. August 20, 2014. PEREZ, J.

Facts:

Issue:

Whether or not the filing of the judicial separation of property is proper in accordance with the Family Code.

Ruling:

CHAPTER 6 REGIME OF SEPARATION OF PROPERTY

CHAPTER 7 PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE

APPLICABILITY

SALARIES AND WAGES

PRESUMPTION OF CO-OWNERSHIP

Even if the man is the only one employed and the properties which were acquired during their coverture came from the salaries or wages of the man, the law presumes that the parties are co-owners of the said properties.

FORFEITURE

CASE

REQUIREMENTS FOR THE SALE, ALIENATION, DONATION, ASSIGNMENT, OR ENCUMBRANCE OF THE FAMILY HOME

No comments:

Post a Comment

SECTION 4

CHARGES UPON AND OBLIGATIONS OF THE CONJUGAL PARTNERSHIP

SECTION 5

ADMINISTRATION OF THE CONJUGAL PARTNERSHIP PROPERTY

SECTION 6

DISSOLUTION OF CONJUGAL PARTNERSHIP REGIME

SECTION 7

LIQUIDATION OF THE CONJUGAL PARTNERSHIP OF ASSETS AND LIABILITIES

CHAPTER 5:

SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF COMMON PROPERTY BY ONE SPOUSE DURING MARRIAGE

DAVID A. NOVERAS vs LETICIA T. NOVERAS

G.R. No. 188289. August 20, 2014.

PEREZ, J.

CHAPTER 6

REGIME OF SEPARATION OF PROPERTY

CHAPTER 7

PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE