We previously noted that we are breaking down the discussion on the property relations of the spouses during marriage under the Family Code, as follows: (1) Prenuptial agreements and introduction to property relations between husband and wife; (2) The system of absolute community; (3) Conjugal partnership of gains; (4) Complete separation of property; (5) Donations by reason of marriage; and (6) Comparison of the various types of property relations between spouses. This post is Part 2.

The absolute community of property automatically applies if the spouses fail to agree on a property system or prenuptial agreement prior to the celebration of marriage, or when the agreement is void.

SYSTEM OF ABSOLUTE COMMUNITY

This is one of the regimes or systems of property relations between the spouses and the default system in the absence of a prenuptial agreement or when the agreed system is null and void. This system commences at the precise moment that the marriage is celebrated, and any stipulation for the commencement of the community regime at any other time is void.

In a nutshell, the husband and the wife are considered as co-owners of all properties they bring into the marriage (those that they owned before the marriage), as well as the properties acquired during the marriage, except for certain properties express excluded by law (listed below). The rules on co-ownership applies in all matters not provided under the Family Code.

PROPERTIES PART OF COMMUNITY

Unless otherwise provided by law 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. Property acquired during the marriage is PRESUMED to belong to the community, unless it is proved that it is one of those excluded therefrom.

EXCLUDED PROPERTIES

(1) Property acquired during the marriage by gratuitous title (by donation and by testate/intestate succession) by 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;

(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.

WAIVER OF SHARE DURING MARRIAGE

Except in case of judicial separation of property, NO waiver of rights, shares and effects of the absolute community of property during the marriage can be made.

CHARGES AND OBLIGATIONS

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 the Family Code on Support;

• (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the community, or by both spouses, or by one spouse 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 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) Ante-nuptial debts (debts contracted before the marriage) 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;

• (9) Ante-nuptial debts of either spouse other than those falling under No. 7 above, 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 as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and

• (10) Expenses of litigation between the spouses unless the suit is found to be groundless.

If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties.

GAMBLING DEBTS

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.

ADMINISTRATION OF COMMUNITY PROPERTY

Both spouses jointly enjoy the administration and enjoyment of the community property. In case of disagreement, however, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration.

These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

RULE ON DISPOSITION OF PROPERTIES

Either spouse may dispose by will of his or her interest in the community property. This is possible because the will takes effect only upon the death. However, 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.

TERMINATION OF ABSOLUTE COMMUNITY

(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.

SEPARATION IN FACT

The separation in fact or separation de facto (as opposed to legal separation), between husband and wife shall not affect the regime of absolute community, except that:

• (1) The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

• (2) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding;

• (3) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share.

DE FACTO SEPARATION VS. ABANDONMENT

In a separation de facto, the spouses may still be complying with their duty to support each other and their children. The rule in case of abandonment is provided below.

ABANDONMENT BY SPOUSE

If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family (“obligations to the family” refer to marital, parental or property relations), the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose.

A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

PROCEDURE IN DISSOLUTION

(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 of the Family Code.

(3) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.

(4) The net remainder of the properties of the absolute community shall constitute its net assets, which shall be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlements, or unless there has been a voluntary waiver of such share provided in the Family Code. For purpose of computing the net profits subject to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value between the market value of the community property at the time of the celebration of the marriage and the market value at the time of its dissolution.

(5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51 of the Family Code.

(6) Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. In case there in no such majority, the court shall decide, taking into consideration the best interests of said children.

LIQUIDATION UPON DEATH

Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within six months from the death of the deceased spouse.

NON-COMPLIANCE WITH PROCEDURE, EFFECT

If the procedure on liquidation, as outlined above, is not followed: (a) any disposition or encumbrance involving community property by the surviving spouse shall be void; and (b) any subsequent marriage shall be governed by the mandatory regime of complete separation of property.