Here’s part 2 of the article about “property relations between husband and wife”. Again, it’s really important to know what’s rightfully yours if and when the time comes. As they say, better to be aware than not, but before going through a lengthy situation where things can get dirty, tiring, frustrating ( to name a few ), please try your “very best” to reconcile ! If it’s beyond that, well, one’s got to do what one has to do and that’s to seek a Capable Lawyer.
Looking back through the years though and based on what I’ve experienced ( I believe, I’ve seen the worst specially when the rest of the family get involved ), the best way of handling the situation is for an “amicable settlement” to be reached wherein a “win win” situation for both parties is arrived at, but unfortunately for most, that is very difficult specially when emotions take over rational behavior.
Anyway, when the situation is out of hand, then you know it’s time for a lawyer ( please make sure you a get a lawyer specializing in cases involving the situation ).
I remember a scene from one of my favorite movies when the Godfather, Marlon Brando, was advising his son, Al Pacino : Never make a decision when you are mad as “emotion” clouds decision making ! ( don’t think that was the exact wording but nevertheless, that was the message )
SECTION 4. – Charges Upon and Obligation
of the Conjugal Partnership
Art. 161. The conjugal partnership shall be liable for:
(1) All debts and obligations contracted by the husband for the benefit of the conjugal partnership, and those contracted by the wife, also for the same purpose, in the cases where she may legally bind the partnership;
(2) Arrears or income due, during the marriage, from obligations which constitute a charge upon property of either spouse or of the partnership;
(3) Minor repairs or for mere preservation made during the marriage upon the separate property of either the husband or the wife; major repairs shall not be charged to the partnership;
(4) Major or minor repairs upon the conjugal partnership property;
(5) The maintenance of the family and the education of the children of both husband and wife, and of legitimate children of one of the spouses;
(6) Expenses to permit the spouses to complete a professional, vocational or other course.
Art. 162. The value of what is donated or promised to the common children by the husband, only for securing their future or the finishing of a career, or by both spouses through a common agreement, shall also be charged to the conjugal partnership, when they have not stipulated that it is to be satisfied from the property of one of them, in whole or in part.
Art. 163. The payment of debts contracted by the husband or the wife before the marriage shall not be charged to the conjugal partnership.
Neither shall the fines and pecuniary indemnities imposed upon them be charged to the partnership.
However, the payment of debts contracted by the husband or the wife before the marriage, and that of fines and indemnities imposed upon them, may be enforced against the partnership assets after the responsibilities enumerated in Article 161 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.
Art. 164. Whatever may be lost during the marriage in any kind of gambling, betting or game, whether permitted or prohibited by law, shall be borne by the loser, and shall not be charged to the conjugal partnership.
SECTION 5. – Administration of the Conjugal Partnership
Art. 165. The husband is the administrator of the conjugal partnership.
Art. 166. Unless the wife has been declared a non compos mentis or a spendthrift, or is under civil interdiction or is confined in a leprosarium, the husband cannot alienate or encumber any real property of the conjugal partnership without the wife’s consent. If she refuses unreasonably to give her consent, the court may compel her to grant the same.
This article shall not apply to property acquired by the conjugal partnership before the effective date of this Code.
Art. 167. In case of abuse of powers of administration of the conjugal partnership property by the husband, the courts, on petition of the wife, may provide for receivership, or administration by the wife, or separation of property.
Art. 168. The wife may, by express authority of the husband embodied in a public instrument, administer the conjugal partnership property.
Art. 169. The wife may also by express authority of the husband appearing in a public instrument, administer the latter’s estate.
Art. 170. The husband or the wife may dispose by will of his or her half of the conjugal partnership profits.
Art. 171. The husband may dispose of the conjugal partnership property for the purposes specified in Articles 161 and 162.
Art. 172. The wife cannot bind the conjugal partnership without the husband’s consent except in cases provided by law.
Art. 173. The wife may, during the marriage, and within ten years from the transaction questioned, ask the courts for the annulment of any contract of the husband entered into without her consent, when such consent is required, or any act or contract of the husband which tends to defraud her or impair her interest in the conjugal partnership property. Should the wife fail to exercise this right, she or her heirs, after the dissolution of the marriage, may demand the value of property fraudulently alienated by the husband.
Art. 174. With the exception of moderate donations for charity, neither husband nor wife can donate any property of the conjugal partnership without the consent of the other.
SECTION 6. – Dissolution of the Conjugal Partnership
Art. 175. The conjugal partnership of gains terminates:
(1) Upon the death of either spouse;
(2) When there is a decree of legal separation;
(3) When the marriage is annulled;
(4) In case of judicial separation of property under Article 191. (1417a)
Art. 176. In case of legal separation, the guilty spouse shall forfeit his or her share of the conjugal partnership profits, which shall be awarded to the children of both, and the children of the guilty spouse had by a prior marriage. However, if the conjugal partnership property came mostly or entirely from the work or industry, or from the wages and salaries, or from the fruits of the separate property of the guilty spouse, this forfeiture shall not apply.
In case there are no children, the innocent spouse shall be entitled to all the net profits.
Art. 177. In case of annulment of the marriage, the spouse who acted in bad faith or gave cause for annulment shall forfeit his or her share of the conjugal partnership profits. The provision of the preceding article shall govern.
Art. 178. The separation in fact between husband and wife without judicial approval, shall not affect the conjugal partnership, except that:
(1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have a 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 necessary;
(3) If the husband has abandoned the wife without just cause for at least one year, she may petition the court for a receivership, or administration by her of the conjugal partnership property, or separation of property.
SECTION 7. – Liquidation of the Conjugal Partnership
Art. 179. Upon the dissolution of the conjugal partnership, an inventory shall be formed, but such inventory shall not be necessary:
(1) If, after the dissolution of the partnership, one of the spouses should have renounced its effects and consequences in due time; or
(2) When separation of property has preceded the dissolution of the partnership.
Art. 180. The bed and bedding which the spouses ordinarily use shall not be included in the inventory. These effects, as well as the clothing for their ordinary use, shall be delivered to the surviving spouse.
Art. 181. The inventory having been completed, the paraphernal property shall first be paid. Then, the debts and charges against the conjugal partnership shall be paid.
Art. 182. The debts, charges and obligations of the conjugal partnership having been paid; the capital of the husband shall be liquidated and paid to the amount of the property inventoried.
Art. 183. The deductions from the inventoried property having been made as provided in the two preceding articles, the remainder of said property shall constitute the credit of the conjugal partnership.
Art. 184. The loss or deterioration of the movables belonging to either spouse, although through fortuitous event, shall be paid from the conjugal partnership of gains, should there be any.
Those suffered by real property shall not be reimbursable in any case, except those on paraphernal property administered by the husband, when the losses were due to his fault. He shall pay for the same. (1425a)
Art. 185. The net remainder of the conjugal partnership of gains shall be divided equally between the husband and the wife or their respective heirs, unless a different basis of division was agreed upon in the marriage settlements. (1426a)
Art. 186. The mourning apparel of the widow shall be paid for out of the estate of the deceased husband.
Art. 187. With regard to the formation of the inventory, rules for appraisal and sale of property of the conjugal partnership, and other matters which are not expressly determined in the present Chapter, the Rules of Court on the administration of estates of deceased persons shall be observed.
Art. 188. 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.
Art. 189. Whenever the liquidation of the partnership of two or more marriages contracted by the same person should be carried out at the same time, in order to determine the capital of each partnership all kinds of proof in the absence of inventories shall be admitted; and in case of doubt, the partnership property shall be divided between the different partnerships in proportion to the duration of each and to the property belonging to the respective spouses.
SEPARATION OF PROPERTY OF THE SPOUSES AND ADMINISTRATION OF PROPERTY BY THE WIFE DURING THE MARRIAGE
Art. 190. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place save in virtue of a judicial order. (1432a)
Art. 191. The husband or the wife may ask for the separation of property, and it shall be decreed when the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction, or has been declared absent, or when legal separation has been granted.
In case of abuse of powers of administration of the conjugal partnership property by the husband, or in case of abandonment by the husband, separation of property may also be ordered by the court, according to the provisions of Articles 167 and 178, No. 3.
In all these cases, it is sufficient to present the final judgment which has been entered against the guilty or absent spouse.
The husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage, subject to judicial approval. All the creditors of the husband and of the wife, as well as of the conjugal partnership shall be notified of any petition for judicial approval or the voluntary dissolution of the conjugal partnership, so that any such creditors may appear at the hearing to safeguard his interests. Upon approval of the petition for dissolution of the conjugal partnership, the court shall take such measures as may protect the creditors and other third persons.
After dissolution of the conjugal partnership, the provisions of Articles 214 and 215 shall apply. The provisions of this Code concerning the effect of partition stated in Articles 498 to 501 shall be applicable.
Art. 192. Once the separation of property has been ordered, the conjugal partnership shall be dissolved, and its liquidation shall be made in conformity with what has been established by this Code.
However, without prejudice to the provisions of Article 292, the husband and the wife shall be reciprocally liable for their support during the separation, and for the support and education of their children; all in proportion to their respective property.
The share of the spouse who is under civil interdiction or absent shall be administered in accordance with the Rules of Court.
Art. 193. The complaint for separation and the final judgment declaring the same, shall be noted and recorded in the proper registers of property, if the judgment should refer to immovable property.
Art. 194. The separation of property shall not prejudice the rights previously acquired by creditors.
Art. 195. The separation of property ceases:
(1) Upon reconciliation of the spouses, in case of legal separation;
(2) When the civil interdiction terminates;
(3) When the absent spouse appears;
(4) When the court, at the instance of the wife, authorizes the husband to resume the administration of the conjugal partnership, the court being satisfied that the husband will not again abuse his powers as an administrator;
(5) When the husband, who has abandoned the wife, rejoins her.
In the above cases, the property relations between the spouses shall be governed by the same rules as before the separation, without prejudice to the acts and contracts legally executed during the separation.
The spouses shall state, in a public document, all the property which they return to the marriage and which shall constitute the separate property of each.
This public document shall be recorded in the Registry of Property.
In the cases referred to in this article, all the property brought in shall be deemed to be newly contributed, even though all or some may be the same which existed before the liquidation effected by reason of the separation.
Art. 196. With the conjugal partnership subsisting, the administration of all classes of property in the marriage may be transferred by the courts to the wife:
(1) When she becomes the guardian of her husband;
(2) When she asks for the declaration of his absence;
(3) In case of civil interdiction of the husband.
The courts may also confer the administration to the wife, with such limitation as they may deem advisable, if the husband should become a fugitive from justice or be in hiding as a defendant in a criminal case, or if, being absolutely unable to administer, he should have failed to provide for administration.
Art. 197. The wife to whom the administration of all the property of the marriage is transferred shall have, with respect to said property, the same powers and responsibility which the husband has when he is the administrator, but always subject to the provisions of the last paragraph of the preceding article.
SYSTEM OF ABSOLUTE COMMUNITY
Art. 198. In case the future spouses agree in the marriage settlements that the system of absolute community shall govern their property relations during marriage, the following provisions shall be of supplementary application.
Art. 199. In the absence of stipulation to the contrary, the community shall consist of all present and future property of the spouses not excepted by law.
Art. 200. Neither spouse may renounce any inheritance without the consent of the other. In case of conflict, the court shall decide the question, after consulting the family council, if there is any.
Art. 201. The following shall be excluded from the community:
(1) Property acquired by gratuitous title by either spouse, when it is provided by the donor or testator that it shall not become a part of the community;
(2) Property inherited by either husband or wife through the death of a child by a former marriage, there being brothers or sisters of the full blood of the deceased child;
(3) A portion of the property of either spouse equivalent to the presumptive legitime of the children by a former marriage;
(4) Personal belongings of either spouse.
However, all the fruits and income of the foregoing classes of property shall be included in the community.
Art. 202. Ante-nuptial debts of either spouse shall not be paid from the community, unless the same have redounded to the benefit of the family.
Art. 203. Debts contracted by both spouses or by one of them with the consent of the other shall be paid from the community. If the common property is insufficient to cover common debts, the same may be enforced against the separate property of the spouses, who shall be equally liable.
Art. 204. Debts contracted by either spouse without the consent of the other shall be chargeable against the community to the extent that the family may have been benefited thereby.
Art. 205. Indemnities that must be paid by either spouse on account of a crime or of a quasi-delict shall be paid from the common assets, without any obligation to make reimbursement.
Art. 206. The ownership, administration, possession and enjoyment of the common property belong to both spouses jointly. In case of disagreement, the courts shall settle the difficulty.
Art. 207. Neither spouse may alienate or encumber any common property without the consent of the other. In case of unjustifiable refusal by the other spouse, the courts may grant the necessary consent.
Art. 208. The absolute community of property shall be dissolved on any of the grounds specified in Article 175.
Art. 209. When there is a separation in fact between husband and wife, without judicial approval, the provisions of Article 178 shall apply.
Art. 210. Upon the dissolution and liquidation of the community, the net assets shall be divided equally between the husband and the wife or their heirs. In case of legal separation or annulment of marriage, the provisions of Articles 176 and 177 shall apply to the net profits acquired during the marriage.
Art. 211. Liquidation of the absolute community shall be governed by the Rules of Court on the administration of the estate of deceased persons.
SYSTEM OF COMPLETE SEPARATION OF PROPERTY
Art. 212. Should the future spouses agree in the marriage settlements that their property relations during marriage shall be based upon the system of complete separation of property, the following provisions shall supplement the marriage settlements.
Art. 213. 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 conjugal partnership of gains.
Art. 214. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without the consent of the other. All earnings from any profession, business or industry shall likewise belong to each spouse.
Art. 215. Each spouse shall proportionately bear the family expenses.
Title VII. – THE FAMILY
THE FAMILY AS AN INSTITUTION
Art. 216. The family is a basic social institution which public policy cherishes and protects.
Art. 217. Family relations shall include those:
(1) Between husband and wife;
(2) Between parent and child;
(3) Among other ascendants and their descendants;
(4) Among brothers and sisters.
Art. 218. The law governs family relations. No custom, practice or agreement which is destructive of the family shall be recognized or given any effect.
Art. 219. Mutual aid, both moral and material, shall be rendered among members of the same family. Judicial and administrative officials shall foster this mutual assistance.
Art. 220. In case of doubt, all presumptions favor the solidarity of the family. Thus, every intendment of law or facts leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy of children, the community of property during marriage, the authority of parents over their children, and the validity of defense for any member of the family in case of unlawful aggression.
Art. 221. The following shall be void and of no effect:
(1) Any contract for personal separation between husband and wife;
(2) Every extra-judicial agreement, during marriage, for the dissolution of the conjugal partnership of gains or of the absolute community of property between husband and wife;
(3) Every collusion to obtain a decree of legal separation, or of annulment of marriage;
(4) Any simulated alienation of property with intent to deprive the compulsory heirs of their legitime.
Art. 222. No suit shall be filed or maintained between members of the same family unless it should appear that earnest efforts toward a compromise have been made, but that the same have failed, subject to the limitations in Article 2035.
THE FAMILY HOME
SECTION 1. – General Provisions
Art. 223. The family home is the dwelling house where a person and his family reside, and the land on which it is situated. If constituted as herein provided, the family home shall be exempt from execution, forced sale or attachment, except as provided in Articles 232 and 243.
Art. 224. The family home may be established judicially or extrajudicially.
SECTION 2. – Judicial Constitution of the Family Home
Art. 225. The family home may be constituted by a verified petition to the Court of First Instance by the owner of the property, and by approval thereof by the court.
Art. 226. The following shall be beneficiaries of the family home:
(1) The person establishing the same;
(2) His or her spouse;
(3) His or her parents, ascendants, descendants, brothers and sisters, whether the relationship be legitimate or otherwise, who are living in the family home and who depend upon him for support.
Art. 227. The family home may also be set up by an unmarried person who is the head of a family or household.
Art. 228. If the petitioner is married, the family home may be selected from the conjugal partnership or community property, or from the separate property of the husband, or, with the consent of the wife, from her paraphernal property.
Art. 229. The petition shall contain the following particulars:
(1) Description of the property;
(2) An estimate of its actual value;
(3) A statement that the petitioner is actually residing in the premises;
(4) The encumbrances thereon;
(5) The names and addresses of all the creditors of the petitioner and of all mortgagees and other persons who have an interest in the property;
(6) The names of the other beneficiaries specified in Article 226.
Art. 230. Creditors, mortgagees and all other persons who have an interest in the estate shall be notified of the petition, and given an opportunity to present their objections thereto. The petition shall, moreover, be published once a week for three consecutive weeks in a newspaper of general circulation.
Art. 231. If the court finds that the actual value of the proposed family home does not exceed twenty thousand pesos, or thirty thousand pesos in chartered cities, and that no third person is prejudiced, the petition shall be approved. Should any creditor whose claim is unsecured, oppose the establishment of the family home, the court shall grant the petition if the debtor gives sufficient security for the debt.
Art. 232. The family home, after its creation by virtue of judicial approval, shall be exempt from execution, forced sale, or attachment, except:
(1) For nonpayment of taxes; or
(2) In satisfaction of a judgment on a debt secured by a mortgage constituted on the immovable before or after the establishment of the family home.
In case of insolvency of the person constituting the family home, the property shall not be considered one of the assets to be taken possession of by the assignee for the benefit of creditors.
Art. 233. The order of the court approving the establishment of the family home shall be recorded in the Registry of Property.
Art. 234. When there is danger that a person obliged to give support may lose his or her fortune because of grave mismanagement or on account of riotous living, his or her spouse, if any, and a majority of those entitled to be supported by him or by her may petition the Court of First Instance for the creation of the family home.
Art. 235. The family home may be sold, alienated or encumbered by the person who has constituted the same, with the consent of his or her spouse, and with the approval of the court. However, the family home shall under no circumstances be donated as long as there are beneficiaries. In case of sale, the price or such portion thereof as may be determined by the court shall be used in acquiring property which shall be formed into a new family home. Any sum of money obtained through an encumbrance on the family home shall be used in the interest of the beneficiaries. The court shall take measures to implement the last two provisions.
Art. 236. The family home may be dissolved upon the petition of the person who has constituted the same, with the written consent of his or her spouse and of at least one half of all the other beneficiaries who are eighteen years of age or over. The court may grant the petition if it is satisfactorily shown that the best interest of the family requires the dissolution of the family home.
Art. 237. In case of legal separation or annulment of marriage, the family home shall be dissolved, and the property shall cease to be exempt from execution, forced sale or attachment.
Art. 238. Upon the death of the person who has set up the family home, the same shall continue, unless he desired otherwise in his will. The heirs cannot ask for its partition during the first ten years following the death of the person constituting the same, unless the court finds powerful reasons therefor.
Art. 239. The family home shall not be subject to payment of the debts of the deceased, unless in his will the contrary is stated. However, the claims mentioned in Article 232 shall not be adversely affected by the death of the person who has established the family home.
SECTION 3. – Extra-judicial Creation of the Family Home
Art. 240. The family home may be extrajudicially constituted by recording in the Registry of Property a public instrument wherein a person declares that he thereby establishes a family home out of a dwelling place with the land on which it is situated.
Art. 241. The declaration setting up the family home shall be under oath and shall contain:
(1) A statement that the claimant is the owner of, and is actually residing in the premises;
(2) A description of the property;
(3) An estimate of its actual value; and
(4) The names of the claimant’s spouse and the other beneficiaries mentioned in Article 226.
Art. 242. The recording in the Registry of Property of the declaration referred to in the two preceding articles is the operative act which creates the family home.
Art. 243. The family home extrajudicially formed shall be exempt from execution, forced sale or attachment, except:
(1) For nonpayment of taxes;
(2) For debts incurred before the declaration was recorded in the Registry of Property;
(3) For debts secured by mortgages on the premises before or after such record of the declaration;
(4) For debts due to laborers, mechanics, architects, builders, material-men and others who have rendered service or furnished material for the prosecution of the building.
Art. 244. The provisions of Articles 226 to 228 and 235 to 238 are likewise applicable to family homes extrajudicially established.
Art. 245. Upon the death of the person who has extrajudicially constituted the family home, the property shall not be liable for his debts other than those mentioned in Article 243. However, he may provide in his will that the family home shall be subject to payment of debts not specified in Article 243.
Art. 246. No declaration for the extrajudicial establishment of the family home shall be recorded in the Registry of Property if the estimated actual value of the building and the land exceeds the amount stated in Article 231.
Art. 247. When a creditor whose claim is not mentioned in Article 243 obtains a judgment in his favor, and he has reasonable grounds to believe that the family home of the judgment debtor is worth more than the amount mentioned in Article 231, he may apply to the Court of First Instance for an order directing the sale of the property under execution.
Art. 248. The hearing on the petition, appraisal of the value of the family home, the sale under execution and other matters relative to the proceedings shall be governed by such provisions in the Rules of Court as the Supreme Court shall promulgate on the subject, provided they are not inconsistent with this Code.
Art. 249. At the sale under execution referred to in the two preceding articles, no bid shall be considered unless it exceeds the amount specified in Article 231. The proceeds of the sale shall be applied in the following order:
(1) To the amount mentioned in Article 231;
(2) To the judgment and the costs.
The excess, if any, belongs to the person constituting the family home.
Art. 250. The amount mentioned in Article 231 thus received by the person who has established the family home, or as much thereof as the court may determine, shall be invested in constitution of a new family home. The court shall take measures to enforce this provision.
Art. 251. In case of insolvency of the person creating the family home, the claims specified in Article 243 may be satisfied notwithstanding the insolvency proceedings.
If the assignee has reasonable grounds to believe that the actual value of the family home exceeds the amount fixed in Article 231, he may take action under the provisions of Articles 247, 248 and 249.
Finally, please be advised that I am not a LAWYER but rather a REAL ESTATE BROKER so please consult a LAWYER should you any questions as I don’t reply to any comments ever if Real Estate isn’t the issue !
Visit www.robertgsarmiento.org for blogs, news, case studies and property listings which you may find informative.
Subscribe to my daily postings by filling in your email address at the SUBSCRIBE section located at the mid right hand portion of the webpage of www.robertgsarmiento.org
View properties you are looking for by using the SEARCH engine ( highlighted in Green on the right hand corner of the webpage ).
Robert G. Sarmiento Properties
Professional Affiliation :
Real Estate Broker’s Association of the Philippines
President, Greenhills Chapter 2008, 2009
Philippine Association of Real Estate Brokers
San Juan Mandaluyong Chapter 1998, 1999
PRC # 6569
AIPO # 000897
02 5148481 ( direct line )
+ 632 5536051 ( trunkline )
+ 632 4781316 ( telefax )
+ 632 8561365 ( line 3 )
+ 632 8041701 ( line 4 )
+ 63 917 5364829 ( globe )
Email : [email protected]
Website : www.robertgsarmiento.org