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Regime of Separation of Property

The regime of separation of property governs the separate property of each spouse during marriage. There are two types of separation: total, where all property is separate, and partial, where agreed property is separate and the rest is community. Under separation of property, each spouse owns, administers, and enjoys the income from their separate property without the other's consent. Family expenses are generally borne proportionally to each spouse's income, or based on the value of their separate properties if insufficient. The absolute community of property treats all property owned before or acquired during marriage as community property owned equally by both spouses. Exceptions include some pre-marriage inheritances or gifts, and property for personal use. Debts and obligations incurred during marriage

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209 views4 pages

Regime of Separation of Property

The regime of separation of property governs the separate property of each spouse during marriage. There are two types of separation: total, where all property is separate, and partial, where agreed property is separate and the rest is community. Under separation of property, each spouse owns, administers, and enjoys the income from their separate property without the other's consent. Family expenses are generally borne proportionally to each spouse's income, or based on the value of their separate properties if insufficient. The absolute community of property treats all property owned before or acquired during marriage as community property owned equally by both spouses. Exceptions include some pre-marriage inheritances or gifts, and property for personal use. Debts and obligations incurred during marriage

Uploaded by

Noreen Delizo
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Regime of Separation of Property

Question: What governs the regime of separation of property?


Answer:
1. Marriage Settlements
2. Family Code in Suppletory Character

Question: What are the kinds of separation of property?


Answer:
1. As to extent:
(a) Total
(b) Partial‐ In this case, the property not agreed upon as separate shall pertain to the absolute
community.
2. As to kinds of property:
(a) Present property
(b) Future property
(c) Both present and future property

Question: What are the rights of the spouses under the regime of separation of property?
Answer:
1. Each spouse shall administer, dispose of, own, possess, and enjoy his or her own separate
property, without need of the consent of the other.
2. Each spouse shall own all earnings from his or her profession, business and industry and
all fruits, natural, industrial or civil, due or received during the marriage from his or her
separate property.

Question: What are the liabilities for family expenses of the spouses under the regime of
separation of property?
Answer:
General Rule: Both spouses shall bear the family expenses in proportion to their income.

XPN: In case of insufficiency or default thereof, to the current market value of their separate
properties. Spouses shall be solitarily liable to creditors for family expenses.

Article 144. Absolute Community of Property


The absolute community of property between spouses starts from the time of the marriage is
celebrated. It cannot be modified during the marriage; hence, any agreement must be done
prior to contracting the marriage (Article 88, Family Code). Under the regime, all properties
owned by the spouses before the marriage and those that they acquire during the marriage shall
form part of the absolute community and is shared equally by husband and wife (Article 91,
Family Code).

Alien Married to a Filipino


 In both absolute community of property and in conjugal partnership, an alien married to a
partnership property consisting real estate or land.
 An alien cannot also seek for recovery of such land as his or her share in the community
or conjugal property.
Case Example:
 In Matthews vs Taylor, GR No. 164585, June 22, 2009 where the Filipina spouse entered
into a lease agreement without the consent of her foreigner spouse and where the latter
assailed the lease as void considering that his consent was not obtained in such
encumbrance. The Supreme Court rejected such position stating to consider the leased
property as conjugal and therefore any encumbrance should have been with the consent
of the foreigner spouse will be circumventing the proscription in the constitution
regarding aliens being prohibited from acquiring property in the Philippines.
 The Supreme Court also stated “Aliens, whether individual or corporation, have been
disqualified from acquiring lands of the public domain, they are also disqualified from
acquiring private lands. The primary purpose of this constitutional provision is the
conservation of the national patrimony. The right to acquire lands of the public domain is
reserved only to Filipino citizens or corporations at least sixty percent of the capital of
which is owned by Filipinos.

Article 92. As a general rule, any property acquired during the marriage is presumed to belong to
the community, unless it is shown that it is excluded in the following:
 Property acquired during the marriage by gratuitous title such as by way of donation or
inheritance unless the donor testator or grantor provides that they shall form part of the
community property. So, if one of the spouses inherited a property during the marriage,
his/her future spouse will not co-own that property as well as the fruits and income
therefrom.
 Property for personal and exclusive use of either spouse. Jewelry is not considered
excluded under this; hence, it is part of the community property.
 Property acquired before the marriage if the acquiring party has legitimate descendants
(children, grandchildren) by a former marriage. The fruits and income of such property
are also excluded.

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. It
shall not be charged to the community but any winnings therefrom shall form part of the
community property (Article 95, Family Code).

There is a need for the absolute community to be expansive because it is answerable for the
needs of the family, including the support of the spouses, their common children, and legitimate
children of either spouse. All debts and obligations contracted during the marriage by the
designated administrator-spouse are sourced from the community property. Even debts obtained
without the consent of the other may be enforced on the community property to the extent that
the family may have been benefited.

Other expenses chargeable to the community property are:


 Taxes and expenses for mere preservation made during marriage upon the separate
property of either spouse used by the family;
 Expenses to enable either spouse to commence or complete a professional or vocational
course, or other activity for self-improvement, and even debts incurred by either spouse
prior to marriage (for as long as it benefited the family), and expenses of litigation
between the spouses, may all be sourced from the community property;
 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;
 Debts incurred prior to the marriage by either spouse that did not benefit the family;
 The support of illegitimate children of either spouse;
 Liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of
absence or insufficiency of the exclusive property of the debtor-spouse. However, this is
considered as advances to be deducted from the share of the debtor-spouse upon
liquidation of the community; and,
 Expenses of litigation between the spouses unless the suit is found to be groundless
(Article 94, Family Code).

System of Absolute Community


 The property regime of the spouses in the absence of a marriage settlement or when the
marriage is void. This is so because it is more in keeping with Filipino culture.

GENERAL RULE: Community property shall consist of all property owned by the spouses at
the time of the marriage or acquired thereafter.

EXCEPTIONS:
(a) property acquired before the marriage by either spouse who has legitimate descendants
by a former marriage
(b) property for personal and exclusive use except jewelry
(c) property acquired during the marriage by gratuitous title, except when the donor, testator
or grantor expressly provides otherwise

NOTE: No waiver of rights allowed during the marriage except in case of judicial separation of
property. The waiver must be in a public instrument.

Question: What constitutes the community property?


Answer:
Includes:
1. All the property owned by the spouses:
(a) at the time of the celebration of the marriage; or
(b) acquired thereafter;
2. Property acquired during the marriage by gratuitous title, if expressly made to form part of
the community property by the donor, testator or grantor;
3. Jewelries, etc.;
4. Winnings in gambling.

Excludes:
1. Property acquired during the marriage by gratuitous title and its fruits;
XPN: If expressly provided by the donor, testator or grantor that they shall form part of the
community property
2. Property for personal and exclusive use of either spouse;
XPN: Jewelries shall form part of the ACP because of their monetary value.
3. Property acquired before the marriage by one with legitimate descendants by former
marriage and its fruits and income;
4. Those excluded by the marriage settlement.

Question: In absence of evidence, does property acquired during the marriage belong to
the community property?
Answer: Property acquired during the marriage is presumed to belong to the community, unless
proven otherwise by strong and convincing evidence. (Art .93)

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