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STUDY GUIDE (Arts. 88-104, Family Code

THE FAMILY CODE

OF THE PHILIPPINES

STUDY GUIDE :(Arts. 88-104)

CA!EAT" It will be to your best interest if you make sure that

you finish all reading assignments and/or directives in accordancewith the timeframe outlined in the course syllabus.

TITLE IV

PROPERTY RELATIONS

BETWEEN HUSBAND AND WIFE

CHAPTER 3

SYSTEM OF ABSOLUTE COMMUNITY

Section 1. General Provisions

(Arts. 88-90)

ART. 88.The absolute community of property between

spouses shall commence at the precise moment that the

marriage is celebrated. Any stipulation, express or implied, for

the commencement of the community regime at any other time

shall be void. (145a)

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When a waiver takes place upon a udicial separation of property under$rticles *%+ to *%1.

The phrase covers the time period during and after udicial separation.

If the waiver is executed after the dissolution of the marriage caused forinstance by death of one spouse or annulment.

4oth of the above instances necessarily result in the dissolution andli3uidation of the absolute community in which case the interest of each spouse inthe net assets left of the community property is finally determined after settlement

of its debts and obligations.

If the waiver takes place without a udicial separation of propertydecree such waiver shall be !2IDbecause it is contrary to law and public policypursuant to $rticle ? of the 'ivil 'ode and because such waiver shall constitute anact which is against a prohibitory law #$rt. 1>( as provided in $rticle of the 'ivil'ode.

&e7*ireme%ts #$ere #aier Alloed. Where the waiver is allowed under

any of the two #,( instances abovementioned it is re3uired that the waiver must:

$ppear in a public instrument;

4e recorded in the @'7 where the marriage contract is recorded;

4e recorded in the proper registries of property.

+*r)ose o &e7*ireme%ts6 Eet o 2ral #aier. If the waiver is

merely orally made and is not recorded it will be valid as between the spouses42T IT WI@@ 96T 4I98 TAI78 B570690 who may be preudiced by suchwaiver.

Creditors &i'$t to &esi%d #aier. In any event even if thewaiver is recorded current creditors before the waiver with rights recogni!ed bylaw cannot be preudiced by the waiver #$rt. ? 9''(. $ccordingly $rticle 1> #par.

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, last sentence( allows them to udicially rescind the waiver to the extent of theircredits. #The action is called accion pauliana.(

E5am)le" 0pouses 9and # had their absolute community of propertyworth B*------.-- dissolved in accordance with law. 2pon udicial separation ofproperty 9 is entitled to get B-----.-- as his share. 9, however owes C theamount of B*-----. 9decides to waive his entire share in the community propertyin favor of #. C,the creditor of 9,can seek the rescission of the waiver to the extentof B*-----.-- to protect his interest. Aence the waiver becomes valid only to theextent of B+-----.--.

Section 2.

What Constitutes Community Property

(Arts. 91-93)

ART. 91.Unless otherwise provided in this Chapter or in

the marriage settlements, the community property shall consist

of all the property owned by the spouses at the time of the

celebration of the marriage or acquired thereafter. (197a)

Comm*%ity +ro)erty, #$at it Co%sists o. 5xcept for those properties

expressly excluded by $rticle >, of the &amily 'ode or by the spouses" marriagesettlement the law provides for two #,( kinds of properties that shall form part of theabsolute community of properties to wit"

$ll properties owned by the spouses at the time of the celebration of the

marriage;

$ll properties ac3uired after the celebration of the marriage.

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A*tomati Co%ersio% to Comm*%ity +ro)erty. 2pon the celebration of the

marriage the present property of either spouse at the time of the marriage and the

future property ac3uired thereafter are automatically converted into the communityproperty without need of any uridical act for the purpose.

If the properties are titled properties the titles should be registered in the

names of both spouses through the registration of their marriage settlement with theproper registry of property. 6therwise third persons acting in good faith relying on thetitles in the name of only one of the spouses shall not be preudiced.

Sti)*latio% to E5l*de +ro)erties rom t$e Comm*%ity +ro)erty.

$s earlier discussed the future spouses can adopt in their marriage settlement

absolute community as their property regime. 5ven so they may validly agree toexclude from the community property whatever properties they may have at the timeof the marriage and include therein only the properties that they may ac3uire duringthe marriage.

It is important to note however that in the absence of any contrary stipulation

between the spouses the fruits and income from said excluded properties by

stipulation will still be considered part of the community property since they will not fallin any of the exclusions enumerated in $rticle >,.

ART. 92.The following shall be excluded from the

community property:

(1)Property acquired during the marriage by gratuitous titleby either spouse, and the fruits as well as the income thereof, if

any, unless it is expressly provided by the donor, testator or

grantor that they shall form part of the community property;

(2)Property for personal and exclusive use of either spouse.

However, jewelry shall form part of the community property;

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(3)Property acquired before the marriage by either spouse

who has legitimate descendants by a former marriage, and the

fruits as well as the income, if any, of such property. (201a)

Grat*ito*s A7*isitio%s D*ri%' arria'e.

4y , #*( the fruits and income of the property ac3uired by donation

or succession are also excluded.

+erso%al +ro)erties or E5l*sie Use. These properties shall pertain to the

spouse who personally and exclusively uses them such as clothes eyeglasses shoesand the like. Aowever pieces of ewelry though personally and exclusively used byeither spouse shall form part of the community property because they are generally ofgreat value.

+ro)erties rom +reio*s arria'e. Broperty ac3uired before the marriage by

either spouse including the fruits and income thereof are excluded if said spouse haslegitimate descendants by a former marriage.

+*r)ose. The purpose of the law is to protect the legitime or interest of the

legitimate children in the previous marriage. If the properties in the first and secondmarriage would be mixed time might come when it can no longer be determinedwhich properties belong to the first and the second marriages. It would be preudicialto the children of the two #,( marriages.

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This rule does not however affect the rights of the children ofthe second marriage to inherit their shares of the properties of their father ormother ac3uired during his or her first marriage under the law on succession.

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proceeds of the sale or the property so ac3uired remain separate property or be nowpart of the community propertyC

For )ro)erties e5l*ded y a'reeme%t. If a property is excluded from thecommunity property by stipulation in the marriage settlement in the absence of anyagreement the alienation of such property o%erts the proceeds or the propertyac3uired in its place toomm*%ity )ro)erty.#The basis is $rticles >* and >% of the&amily 'ode.(

5xample. In the spouses" marriage settlement providing for absolutecommunity to govern their property regime it was stipulated that theB------.-- won by the husband in the sweepstake prior to the

marriage shall remain separate property during the marriage. Thisstipulation is valid #$rt. >*(. The husband subse3uently used theB------.-- to buy a house which was used as the family home. Thehouse cannot be considered as his separate property but as part of theabsolute community of property.

For )ro)erties e5l*ded y la. If a property is excluded from thecommunity property by reason of the mandatory provisions of law as in the case ofthose excluded under $rticle >, of the &amily 'ode it is submitted that the policy ofthe law to stamp these properties with separate character should not be easilydefeated by the simple expedient of converting said properties into some new form.#This is the view shared by 0enator Tolentino a famous civil law urist and embracedby 7abuya in his commentaries. Dou can look into the commentaries of 0ta. Earia inhis book who has a different view on the matter. I defer more to the view espousedby 0enator Tolentino.(

5xample. 8uring the marriage the wife inherited a 4EW car worth

B?------.-- from her father. This car as well as the income and fruitsthereof is exclusive property of the wife and does not form part of thespouses" community property #$rt. >,F*G(. If the wife is able to trade inthe 4EW car with a Eercede! 4en! car the Eercede! 4en! car will stillbe considered her separate property.

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ART. 93. Property acquired during the marriage is

presumed to belong to the community, unless it is proved that it

is one of those excluded therefrom. (160a)

+res*m)tio% i% Faor o Comm*%ity +ro)erty. 2nlike in conugal

partnership of gains in absolute community all properties of the spouses are includedin the community property as a matter of rule whether the property is ac3uired beforeor after the marriage. This being the case it is submitted that the presumption in favorof the community must relate to all the properties of the spouses and not only to thoseac3uired during the marriage.

Section 3.

Charges and Obligations of the

Absolute Community

(Arts. 94-95)

ART. 94.The absolute community of property shall be liable

for:

(1)The support of the spouses, their common children, and

legitimate children of either spouse; however, the support of

illegitimate children shall be governed by the provisions of this

Code on Support;

(2)All debts and obligations contracted during the marriage

by the designated administrator-spouse for the benefit of the

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community, or by both spouses, or by one spouse with the

consent of the other;

(3)Debts and obligations contracted by either spouse withoutthe consent of the other to the extent that the family may have

been benefited;

(4)All taxes, liens, charges and expenses, including major or

minor repairs, upon the community property;

(5)All taxes and expenses for mere preservation made during

marriage upon the separate property of either spouse used by the

family;

(6)Expenses to enable either spouse to commence or

complete a professional or vocational course, or other activity for

self-improvement;

(7)Antenuptial debts of either spouse insofar as they have

redounded to the benefit of the family;

(8)The value of what is donated or promised by both spousesin favor of their common legitimate children for the exclusive

purpose of commencing or completing a professional or

vocational course or other activity for self-improvement;

(9)Antenuptial debts of either spouse other than those falling

under paragraph (7) of this Article, the support of illegitimate

children of either spouse, and liabilities incurred by either spouse

by reason of a crime or a quasi-delict, in case of absence or

insufficiency of the exclusive property of the debtor-spouse, the

payment of which shall be considered advances to be deducted

from the share of the debtor-spouse upon liquidation of the

community; and

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(10) Expenses of litigation between the spouses unless

the suit is found to be groundless.

If the community property is insufficient to cover theforegoing liabilities, except those falling under paragraph (9), the

spouses shall be solidarily liable for the unpaid balance with their

separate properties. (161a, 162a, 163a, 202a-205a)

;IA/I;ITIES 2F T9E A/S2;UTE C2U=ITY. $rticle >+ lists down the

charges and liabilities of the absolute community of property which are similar more orless to the charges and liabilities of the conugal partnership. #$rt. *,*(

S*))ort (Art. 34>1?. This comprises everything indispensable for the

sustenance dwelling clothing medical attendance education and transportation inkeeping with the financial capacity of the family #$rt. *>+ &'(.

The community property is responsible for the support of the:

(a 0pouses;( 'ommon children of the spouses; and

( @egitimate children of either spouse by a previous marriage.

S*))ort oIlle'imate $ildre% (Art. 34>3?6 Art. 13@. The support of

illegitimate children of either spouse shall come from the exclusive or separateproperty of the illegitimate parentspouse.

If the concerned spouse has no separate property or the same isinsufficient the absolute community if financially capable shall advance theneeded support.

The advances made shall however be deducted from the share ofthe spouse obliged to give support upon the li3uidation of the absolutecommunity.

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0upport shall be given to the spouses even if they are not living together

except when one spouse leaves the other without valid reason in which case the

former is not entitled to support #$rt. *-*F*G(.

0upport shall be given to the spouses during the pendency of an action for

legal separation #$rt. ?*( or for annulment of marriage #$rt. +>(.

Dets a%d 2li'atio%s Co%trated D*ri%' t$e arria'e (Art. 34>? The

absolute community shall be liable for the following debts and obligations contracted827I9 the marriage:

Those contracted by the designated administratorspouse for thebenefit of the community.

Those contracted by both spouses.Those contracted by one spouse with the consent of the other.

If the debt is contracted by both spouses or by either spouse with the

consent of the other t$e la o%l*siely )res*mes t$at s*$ det $asredo*%ded to t$e e%eit o t$e amily. Aence the creditor #in order to be able to

charge the debt incurred to the absolute community( no longer has the burden ofproving that the debt was contracted for the benefit of the community or of the family.

Dets Co%trated y 2%e S)o*se #it$o*t t$e Co%se%t o t$e 2t$er.

If the debt is contracted 827I9 the marriage by the designated

administratorspouse (Art. 34>? or by one spouse without the consent of the other(Art. 34>B?,TA5 $406@2T5 '6EE29ITD 0A$@@ 45 @I$4@5 69@D if it can beproven that the debt redo*%ded to t$e e%eit o t$e amily. Aence the creditor #inorder to be able to charge the debt incurred to the absolute community( has theburden of proving that the debt was contracted for the benefit of the family.

Carlos vs. Abelardo, G.&. =o. 1404, A)ril 3, 00, B80 SC&A B1.

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A%te-=*)tial Dets o Eit$er S)o*se /e%eiti%' t$e Family (Art. 34>@?.

Ge%eral &*le" 8ebts incurred 45&675 the marriage by either spousemust be paid 69@D by the se)arate )ro)ertyof said spouse.

E5e)tio%" If the indebtedness however redounded to the benefit of the

family the asol*te omm*%ityshall be liable 42T only to the extent of the benefitsreceived. Aence if a creditor seeks to hold the absolute community liable for an antenuptial debt incurred by either spouse he has the burden to prove that such debt hasredounded to the family"s benefit.

5xample: 4efore the marriage the prospective husbandborrowed B million from a bank to buy a house for the family. $fter themarriage B, million of the loan remained unpaid. The house becamepart of the community property and was used as a family home. Aerethe community property is liable to the extent of B,E.

Ta5es a%d E5)e%ses I%*rred o% t$e +ro)erty.

2% Comm*%ity +ro)erty (Art. 34>4?. $ll taxes such as license realty

taxes surcharges and all expenses for repairs whether minor or maor involvingcommunity property are chargeable against the absolute community of property.

2% S)o*ses Se)arate +ro)erty (Art. 34>?. If an exclusive or

separate property of either spouse is *sed y t$e amily, taxes and expensesincurred during the marriage for mere preservation of such separate property shall bechargeable to the absolute community of property.

ere +reseratio% o Se)arate +ro)erty. It must be noted thatthe taxes and expenses on the spouses" separate property, for which thecommunity property may be held liable are only those for mere preservation.Eere preservation does not involve maor repairs but only minor ones. If theproperty needs maor repairs although the separate property is used bythe family, it is the ownerspouse who should shoulder the expenses

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considering that he or she has the greatest interest to conserve it being theowner thereof.

8?. 8onations by both

spouses to their common legitimate children for them to commence or finish aprofessional or vocational course or other activity for selfimprovement are chargeable

to the absolute community.

&e7*isites. To be chargeable agaist the community property it isre3uired that:

4oth spouses must have made the donation or the promise todonate.

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The donation or promise to donate must be made by bothspouses; otherwise the absolute community is not liable.

If only one of the spouses donate this may fall under theprohibition under $rticle 1) making donations betweenspouses direct or indirect oid.

If the donation is made by one spouse without the consent of theother in favor of a child of the former by a previous marriagethe donation is valid but the same is chargeable to theseparate property of the donorspouse.

The recipients are the spouses" common legitimate children.

If the recipient is a child from a previous marriage of the otherspouse the absolute community is not liable.

The purpose is exclusively for commencement or completion of aprofessional vocational or other activity for selfimprovement.

;iailities y &easo% o a Crime or *asi-Delit.

The separate property of the erring spouse shall be liable to pay the

obligation or debt arising from crime or 3uasidelict. Aowever in case of absence orinsufficiency of the exclusive property of the debtorspouse the absolute community ofproperty shall pay but such payments shall be considered as advances to be deductedfrom the share of the debtorspouse upon li3uidation of the community.

Some e5am)les o oli'atio%s arisi%' rom 7*asi-delit.

The proprietor of a building or structure is responsible for the damagesresulting from its total or partial collapse if it should be due to the lack ofnecessary repairs #$rt. ,*1> 9''(.

The head of a family that lives in a building or part thereof is responsiblefor damages caused by things thrown or falling from the same #$rt. ,*>%9''(.

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Eanufacturers and processors of foodstuffs drinks toilet articles andsimilar goods shall be liable for death or inuries caused by any noxiousor harmful substances used although no contractual relation existsbetween them and the consumers #$rt. ,*1) 9''(.

E5)e%ses o ;iti'atio%.

Brovided that the suit is between the husband and wife and that the case

is not groundless the absolute community of property may be liable for the expensesof litigation.

Typical examples of such cases are for legal separation annulment of

marriage udicial separation of property exclusive administration of the communityproperty support and custody of children.

S2;IDA&Y ;IA/I;ITY 2F T9E S+2USES.

Co%e)t o Solidary ;iaility. 0olidary obligations are those where several

creditors or debtors or both concur and where each creditor has the right to demandand each debtor is bound to perform in its entirety the prestation constituting theobect of the obligation.

5xample" Aand /owe Cthe amount of B*-----.-- due on &ebruary* ,-*. If the liability of Aand /is solidary,on maturity date Ccancompel /#only( to pay the entire B*-----.-- obligation. 6n the otherhand if the liability is merelyoi%t,Ccannot collect from / more than hisproportionate share in the obligation which is B----.--.

#$e% Comm*%ity +ro)erty is I%s*iie%t to +ay C$ar'es. If the

community assets are not sufficient to pay the liabilities enumerated in $rticle >+,thespouses shall be solidarily liable for the unpaid balance with their separate properties.

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This solidary liability shall not however include antenuptial debts notredounding to the benefit of the family the support of illegitimate children by either

spouse and liabilities incurred by the spouse by reason of a crime or a 3uasidelict(Artile 34, )ara'ra)$ 3.

ART. 95.Whatever may be lost during the marriage in any

game of chance, betting, sweepstakes, or any other kind of

gambling, whether permitted or prohibited by law, shall be borne

by the loser and shall not be charged to the community, but any

winnings therefrom shall form part of the community property.

(164a)

;2SSES A=D #I==I=GS I= GA/;I=G.

;osses. In case of losses incurred by the gamblerspouse he or she shall

answer the same with his or her exclusive properties. This is to discourage it as it

tends to dissipate the properties of the family.

#i%%i%'s. If the gamblerspouse however wins the winnings would form

part of the absolute community of properties. The winnings are considered asearnings or properties ac3uired during the marriage.

If however the winning ticket in a lottery or in the sweepstakes was given to a

spouse by a friend it is believed that the ticket would be considered a donation under

$rticle >, #*( and the winnings therefrom shall be considered separate propertyunless the donor of the ticket expressly provided that it shall form part of thecommunity property.

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Section 4.

Ownership, Administration, Enjoyment andDisposition of the Community Property

(Arts. 96-98)

ART. 96.The administration and enjoyment of the

community property shall belong to both spouses jointly. In case

of disagreement, the husbands decision shall prevail, subject torecourse to the court by the wife for proper remedy, which must

be availed of within five years from the date of the contract

implementing such decision.

In the event that one spouse is incapacitated or otherwise

unable to participate in the administration of the common

properties, the other spouse may assume sole powers of

administration. These powers do not include the powers of

disposition or encumbrance without authority of the court or the

written consent of the other spouse. In the absence of such

authority or consent, the disposition or encumbrance shall be

void. However, the transaction shall be construed as a

continuing offer on the part of the consenting spouse and the

third person, and may be perfected as a binding contract upon

the acceptance by the other spouse or authorization by the court

before the offer is withdrawn by either or both offerors. (206a)

2I=T ADI=IST&ATI2= A=D E=2YE=T 2F C2U=ITY +&2+E&TY.

The spouses being coowners of the community properties #except those

excluded in the marriage settlement and listed under $rticle >,( have the right of ointadministration and enoyment thereof.

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Hoint administration means that both spouses administer together oreach spouse may administer with the consent of the other expressly or impliedly.

5noyment includes ownership and possession.

In the event of disagreement between the spouses the decision of the husband

prevails. Aowever if the wife is persistent she may go to court.

&or this purpose she is given a period of ie ( yearswithin which toassail her husband"s decision on their disagreement reckoned from the date of the3uestionable transaction entered into by the husband.

Third persons who deal with the husband cannot complain if the contractis set aside by the court for by dealing with the husband without the consent of thewife they are forewarned that the wife is given by law the right to 3uestion thetransaction in court.

The failure of the wife to go to court within the prescriptive period willmean her conformity to the husband"s decision.

ASSU+TI2= 2F S2;E +2#E&S 2F ADI=IST&ATI2=6 ;IITATI2=S.

While the general rule is oint administration by both spouses there are instanceswhen one spouse may assume sole powers of administration to wit:

When there is an agreement between the spouses that only one of them shalladminister the community property; and

When one spouse is incapacitated #due to causes like civil interdictionabsence etc.( or otherwise unable to participate in the coadministration of thecommunity property.

5ven if a spouse is given the sole power to administer the community property

the power 8650 96T I9'@285 the authority to dispose or encumber communityproperty without theritte% o%se%tof the other spouse or o*rt a*t$oriHatio%.

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If the administratorspouse disposes of a community property without the

consent of the other spouse or without court authori!ation and delivery has already

been effected in favor of the third person the remedy of the nonconsenting spouse isan action for delaratio% o %*llityof the contract entered into and for reconveyance.

9ote that the fiveyear prescriptive period provided for in the firstparagraph of $rticle >? does not apply in this case since the transaction contemplatedin said paragraph is a valid transaction although it has been the subect ofdisagreement between the spouses.

&U;ES 2= T9E DIS+2SITI2= 2&

E=CU/&A=CE 2F C2U=ITY +&2+E&TY.

8isposition or encumbrance of community property must be oi%t, i.e., both

spouses must consent or approve.

The consent of the other spouse to the encumbrance or disposition must be i%

riti%'.

If the written consent of the other spouse cannot be obtained or is beingwithheld then the matter should be brought to court and the court will give theauthority if the same is warranted by the circumstances.

If one spouse acts without the written consent of the other or without court

authority the disposition or encumbrance shall be oid.

Homeowners Savings & oan !an" vs. #ailo, G.&. =o. 1B80, ar$ 11, 00,

4B SC&A 8B.

5ven if the disposition or encumbrance is void #as it was done without the

consent of the other( it shall however be construed as a continuing offer on the partof the consenting spouse and the third person and may be perfected as a bindingcontract upon the acceptance by the other spouse #whose consent was not sought( orauthori!ation by the court 45&675 the offer is withdrawn by either or both offerors.

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ART. 97.Either spouse may dispose by will of his or herinterest in the community property. (n)

DIS+2SITI2= /Y #I;; 2F I=TE&EST I= C2U=ITY +&2+E&TY.

The spouses '$996T dispose of their respective interest in the community

property by way of a disposition inter vivos #to take effect during the lifetime of the

spouse making the disposition or executing the waiver(. $ny such disposition of thespouse"s respective shares or interest in the absolute community shall be oid,sincea spouse"s right to onehalf of the community assets does not vest until the li3uidationof the absolute community.

Aowever Artile 3@expressly authori!es either spouse to dispose of his or her

interest in the community property if the disposition is in the nature of a dispositionmortis cause,and subect to the limitations of the law on testamentary succession. Inthis case the disposition if made in a will will take effect only upon the death of the

testator spouse at which time the community property is already terminated andsubect to li3uidation.

9ote that what is allowed to be disposed of by will is 96T s)eii )ro)ertyin

the absolute community #e.g. the husband"s lot in Eakati or the wife"s 4EW car( butonly the i%terest therein. The reason is that until the li3uidation of the absolutecommunity it is not known what specific properties remain and which ones shall beadudicated to the individual spouses.

ART. 98.Neither spouse may donate any community

property without the consent of the other. However, either

spouse may, without the consent of the other, make moderate

donations from the community property for charity or on

occasions of family rejoicing or family distress. (n)

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+&2SC&I+TI2= AGAI=ST D2=ATI2= 2F C2U=A; +&2+E&TY. 9either

spouse may donate any communal property without the consent of the other spouse.

The obvious reason is that the donation will preudice the other spouse who is a coowner of the property. $ny such donation is !2ID.

ECE+TI2=. The law however allows either spouse ee% it$o*t t$e

o%se%t o t$e ot$er s)o*se"

To make moderate donations for charity or on occasions of family

reoicing or family distress #$rt. >)(.

To give moderate gifts to each other on the occasion of any family

reoicing #$rt. 1)(.

What is moderate depends on the financial circumstances of the couple

the value of the property donated and their social position.

U=I2=S #IT92UT #ED;2CJ. The prohibition like in $rticle 1) should

also apply to parties living together as husband and wife without a valid marriage.

Section 5.

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common children or if none the children of the guilty spouse by a previous marriageor in default of children the innocent spouse.

#$e% t$e arria'e is A%%*lled or Delared !oid (Arts. 0-. When a

marriage is annulled it ceases to exist. When a marriage is declared void it simplymeans the marriage never existed at all. $ decision to this effect in either caseterminates or dissolves the absolute community. @ike in legal separation theoffending spouse or the one who acted in bad faith loses his right over any share inthe net profit earned by the absolute community the same being forfeited in favor ofthe persons mentioned in $rticle +% #,(.

I% Case o *diial Se)aratio% o +ro)erty D*ri%' t$e arria'e (Arts.

1B4-1B8. 0eparation of property is allowed to take place 45&675 the marriage in amarriage settlement. 8uring the marriage it is not allowed and cannot take placeexcept by udicial order. $nd separation of property during the marriage by udicialorder may either be (aor s*iie%t a*se#$rt. *%( or ( ol*%tary that is byoint agreement of the spouses #$rt. *%?(. 6nce the separation of property has beendeclared the absolute community shall be li3uidated #$rt. *%)( and dissolved and afterits dissolution the provisions on complete separation of property shall apply #$rt. *%1(.There is therefore a change of economic regime y *diial order.

ART. 100.The separation in fact between husband and wife

shall not affect the regime of absolute community except that:

(1)The spouse who leaves the conjugal home or refuses to live

therein, without just cause, shall not have the right to be

supported;

(2)When the consent of one spouse to any transaction of the

other is required by law, judicial authorization shall be obtained

in a summary proceeding;

(3)In the absence of sufficient community property, the

separate property of both spouses shall be solidarily liable for the

support of the family. The spouse present shall, upon proper

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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

latters share. (178a)

SE+A&ATI2= #$ %AC' DEFI=ED. The separation in fact between the

spouses or de facto se)aratio% is the cessation of cohabitation. The spouses nolonger live together as husband and wife under the same roof but there is no decreeof legal separation obtained by either of them.

SE+A&ATI2= #$ %AC'DISTI=GUIS9ED F&2 A/A=D2=E=T.

In de facto se)aratio% while not living together the spouses may still be

providing support to one another and also to the children. 6n the other handaa%do%me%tinvolves not only separation de factobut implies an intention never toreturn to the conugal home and without providing for the needs and maintenance ofone"s family.

Se)aratio% de factois not a ground for legal separation. 6n the other hand

aa%do%me%t can give cause for legal separation under $rticle of the &amily

'ode.

EFFECTS 2F SE+A&ATI2= #$ %AC'.

I%a))liaility o Artile B. 0ince there is no decree of legal separation

separation de factodoes not produce the effects provided for in $rticle ?% of the&amily 'ode. Thus

(a The spouses retain their right of consortium;( The absolute community of property remains and is not affected;( The spouses continue to be legal heirs of each other in intestate

succession;(d)There is neither a guilty spouse nor an innocent spouse for purposes of

determining forfeiture of shares after li3uidation.

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CASE"(illanueva vs. CA and )etuya, G.&. =o. 14B8, A)ril 14, 004, 4@

SC&A 4B3. The cohabitation of a spouse with another person even for a long

period does not sever the tie of a subsisting previous marriage. Aence all propertyac3uired from the date of their marriage until the death of the wife are still presumedcommunity #conugal( and cannot form part of any coownership with the paramour.

Deserter loses t$e ri'$t to e s*))orted. The spouse who leaves the

conugal home without ust cause is not entitled to support. Aowever the desertingspouse"s obligation to support the other spouse and the children is not extinguished.

*diial a*t$oriHatio% may e otai%ed i% lie* o s)o*ses o%se%t. When the consent of one spouse to any transaction of the other is re3uired by lawand the latter does not want to give such consent or is not available to give there3uired consent authori!ation may be obtained from the court in a summaryproceeding.

Solidary liaility o t$e s)o*ses. $lthough actually living separately the

absolute community remains liable for the support of the family. If the communityproperty is insufficient the separate properties of the spouses shall be solidarily liablefor the support of the family. #0ee $rt. )- and the last paragraph of $rt. >+.(

*diial a*t$oriHatio% to admi%ister or e%*mer se)arate )ro)erty.

The spouse present may upon proper petition in a summary proceeding ask forudicial authority to administer or encumber specific separate property of the otherspouse and to use its fruits or proceeds to satisfy the share of the other spouse in thesupport of the family.

ART. 101.If a spouse without just cause abandons the

other or fails to comply with his or her obligations to the family,

the aggrieved spouse may petition the court for receivership, for

judicial separation of property or for authority to be the sole

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administrator for the absolute community, subject to such

precautionary conditions as the court may impose.

The obligations to the family mentioned in the precedingparagraph 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 beprima facie

presumed to have no intention of returning to the conjugal

dwelling. (178a)

A/A=D2=E=T DEFI=ED. This is desertion of the conugal dwelling without

intention of returning. There must be an absolute cessation of marital relations dutiesand rights with intention of perpetual separation. It must not only be physicalestrangement but also amounts to financial and moral desertion.

*)+A %AC+$ +&ESU+TI2= 2F A/A=D2=E=T. $ spouse isprima facie

presumed to have abandoned the other spouse and the family and to have no moreintention of returning to the conugal dwelling if:

The spouse has left the conugal dwelling for a period of no less than

three #%( months; 2&

The spouse has failed within the same period of three #%( months to give

any information as to his or her whereabouts.

The presumption #being merely a disputable presumption( is rebuttable by the

presentation of clear strong and convincing evidence that the absent spouse did notintend to leave the present spouse and the family.

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;EGA; &EEDIES 2F DESE&TED S+2USE. In case of an unust

abandonment or when one spouse fails to comply with his or her marital and parental

obligations as well as to his or her duties regarding the administration of the communalproperties the other spouse may petition the appropriate court for:

7eceivership #7ule > 7evised 7ules of 'ourt(.

Hudicial separation of property #$rt. *%+ par. +(.

0ole administration of the absolute community of property.

The grant of these remedies are subect to precautionary conditions as the

court may impose.

&E;E!A=CE T2 2T9E& +&2!ISI2=S.

If it is shown that such failure to comply with the obligations of a family

constitutes a psychological incapacity to perform the essential marital obligationswhich existed at the time of the marriage the marriage itself can be considered voidunder $rticle %? of the &amily 'ode.

If the abandonment without ust cause is for more than one year another

remedy is the filing of a legal separation case under $rticle #*-(.

Section 6.

Liquidation of the Absolute CommunityAssets and Liabilities

(Arts. 102-104)

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ART. 102.Upon dissolution of the absolute community

regime, the following procedure shall apply:

(1)An inventory shall be prepared, listing separately all the

properties of the absolute community and the exclusive

properties of each spouse.

(2)The debts and obligations of the absolute community shall

be paid out of its assets. In case of insufficiency of said assets,

the spouses shall be solidarily liable for the unpaid balance with

their separate properties in accordance with the provisions of the

second paragraph of Article 94.

(3)Whatever remains of the exclusive properties of the

spouses shall thereafter be delivered to each of them.

(4)The net remainder of the properties of the absolute

community shall constitute its net assets, which shall be divided

equally between husband and wife, unless a different proportion

or division was agreed upon in the marriage settlements, or

unless there has been a voluntary waiver of such share 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 shallbe delivered upon partition, in accordance with Article 51.

(6)Unless otherwise agreed upon by the parties, in the

partition of the properties, the conjugal dwelling and the lot on

which it is situated shall be adjudicated to the spouse with whom

the majority of the common children choose to remain. Children

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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. (n)

;IUIDATI2= +&2CEDU&E. 8issolution or termination of the absolute

community #upon the grouds enumerated in $rticle >>( comes first before theli3uidation. 2pon termination the following steps or procedure must be complied with"

I%e%tory. $n inventory shall be prepared listing separately the communal

properties from the exclusive properties of each spouse.

+ayme%t o dets. The debts and obligations of the absolute community

shall be paid out of its assets without preudice to solidary liability of the spouses"separate properties in case of insufficiency of the communal assets #$rt. >+ par. ,(.

Deliery o e5l*sie )ro)erties. Whatever remains of the exclusive

properties of the spouses shall be delivered to each of them.

+artitio% o %et assets. The net assets of the absolute community shall be

divided e3ually between the spouses without preudice to a contrary agreement in themarriage settlements or to a voluntary waiver of such share.

CASE"Abalos vs. acatangay, G.&. =o. 104B, Se)temer B0, 004, SC&A.

The right of the husband or wife to onehalf of the conugal assets does not vest untilthe dissolution and li3uidation of the conugal partnership or after dissolution of themarriage when it is finally determined that after settlement of conugal obligations

there are net assets left which can be divided between the spouses or their respectiveheirs.

Deliery o t$e )res*m)tie le'itime. The presumptive legitimes of the

common children shall be delivered upon partition in accordance with $rticle *.

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Ad*diatio% o o%*'al delli%' a%d lot. The conugal dwelling and lot

shall be adudicated as follows"

(a In accordance with the agreement of the parties if any;

( If there is no such agreement it shall be adudicated to the spouse withwhom the maority of the common children choose to remain;

( 'hildren below seven #)( years old are deemed to have chosen themother unless the court decides otherwise.

(d In case there is no such maority among the children the court shalldecide the matter taking into consideration the best interests of thechildren.

DISTI=CTI2= /ET#EE= =ET ASSETS A=D =ET +&2FITS.

The %et assets constitute the net remainder of the community or conugal

property after payment of debts and obligations of the community or conugal property#Bar. , $rt. *-,; Bar. ) $rt. *,>(.

The %et )roits constitute the

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ART. 103.Upon the termination of the marriage by death,

the community property shall be liquidated in the same

proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the

surviving spouse shall liquidate the community property either

judicially or extra-judicially within 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)

A=DAT2&Y ;IUIDATI2= #9E= A&&IAGE TE&I=ATED /Y DEAT9. If

the absolute community is terminated by death of either spouse the procedure in$rticle *-% #not in $rticle *-,( will be followed to wit"

The community property shall be li3uidated in the same proceeding for the

settlement of the estate of the deceased.

If the surviving spouse does not institute a udicial settlement of the estate of

the deceased spouse the law re3uires the surviving spouse to li3uidate #eitherudicially or extraudicially( the community property within 2=E (1 YEA& from thedeath of the deceased.

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If there are no debts to be paid li3uidation may be by extraudicial

settlement under 7ule )+ of the 7evised 7ules of 'ourt or by an

ordinary action for partition. If there are debts to be paid the surviving spouse has no choice but to file

a proceeding for the settlement of the estate of the deceased spouseand the community property will be li3uidated in the same proceeding.

C2=SEUE=CES 2F FAI;U&E T2 ;IUIDATE. The failure of the surviving

spouse to li3uidate the community property within one #*( year as above prescribedwill result in the following conse3uences"

$ny disposition or encumbrance of community property by the surviving

spouse is oid.

If the surviving spouse contracts a subse3uent marriage a ma%datory

re'ime o om)lete se)aratio% o )ro)erty #$rts. *+*+?( shall govern the propertyrelations of the subse3uent marriage.

This is expressly made mandatory. The reason for this is to protect the

children of the first marriage considering that their shares in the estate oftheir deceased parent have not yet been adudicated to them #therebeing no settlement( and these shares might be mixed up with theproperty of the second marriage if the rule of complete separation ofproperty is not provided.

ART. 104.Whenever the liquidation of the communityproperties of two or more marriages contracted by the sameperson before the effectivity of this Code is carried out

simultaneously, the respective capital, fruits and income of each

community shall be determined upon such proof as may be

considered according to the rules of evidence. In case of doubt as

to which community the existing properties belong, the same

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shall be divided between the different communities in proportion

to the capital and duration of each. (189a)

SIU;TA=E2US ;IUIDATI2= 2F C2U=ITY

+&2+E&TIES 2F T#2 2& 2&E A&&IAGES.

$ spouse who contracted two or more marriges before the effectivity of the

'ode #$ugust % *>11( might have lived these marriages without li3uidation of thecommunity properties.

In the event of a simultaneous li3uidation the respective

capital

fruitsincomes of each community shall be segregated or determined to effect a fair and

ust li3uidation based upon such proofs as may be competent and admissible inaccordance with the rules of evidence.

In the absence of such competent and admissible proofs resulting in doubt or

failure of determination the properties shall be divided between the differentcommunities on the basis of a double proportion that is in proportion to the

capital andduration of each community.

I;;UST&ATI2= 2F D2U/;E +&2+2&TI2=.

0upposing A married / on Hanuary * *>)-. / died on Hanuary , *>1-. The

community lasted for *- years. 6n Eay * *>1- Amarried C. 6n Eay , *>1 Adied. Thesecond community lasted for years.

/ brought to the marriage B,-----.-- while C B*-----.--. $t the time of thesimultaneous li3uidation the mass of the properties is B*------.--

.-a 'n double proportion/

'ommunity with 4: B,-----.-- x *- J B,------.--

'ommunity with ': B*-----.-- x J B -----.--

Amo*%t L +,00,000.00

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'ommunity with 4:B,------.--

x B*------.-- J +800,000.00B,-----.--

'ommunity with ': B -----.-- x B*------.-- J +00,000.00B,-----.--

-b +f the durations are the same/

'ommunity with 4:B,-----.--

x B*------.-- J B??????.?)B%-----.--

'ommunity with ':B*-----.--

x B*------.-- J B%%%%%%.%%B%-----.--

A++;ICA/I;ITY 2F T9E A&TIC;E. The article applies only to marriages

contracted before the effectivity of the &amily 'ode. $fter the effectivity of the 'ode itis no longer possible to have unli3uidated community properties of two or moremarriages because $rt. *-% of the &amily 'ode provides that if the surviving spouse

contracts a subse3uent marriage without li3uidating the dissolved community of theterminated marriage the regime of absolute separation of property shall automaticallyapply to the property relations of the spouses in the subse3uent marriage. Aencethere is segregation of property from the start.

END OF THE TOPIC REMINDERS:

1. 0tudy and master the principles under each topic.. Eemori!e the provisions re3uired to be committed to memory.B. When a case is re3uired in this study guide to be read in its

original text , be ready to recite the case or to prepare a case digest thereof in class.

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The discussions outlined in this study guide have beencollectively lifted from the references listed in your course

syllabus.

ARTS. 88-104, FC

Documents

Transcript of ARTS. 88-104, FC