True love and the absolute community of property

February is the second most preferred month for getting married among Filipinos. Yet, there is a date that married couples need to remember other than their marriage date, and it’s August 3, 1988.

All properties owned by each spouse at the time of the celebration of their marriage on that date and thereafter, or acquired after their marriage will become community property, i.e. jointly owned by the spouses in equal share regardless of how many properties they owned before getting married. The exceptions to this rule are when the couple opts for a different marriage settlement or if expressly excluded by the Family Code of the Philippines.*

It is useful to be aware of this provision in law, as no waiver of rights, shares, and interests of the absolute community of property during the marriage will be allowed, except in the case of judicial separation of property.

HOW ADMINISTERED AND ENJOYED?

The administration and enjoyment of the community property belong to the spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse by the wife to the court, and which must be availed of within five years from the date of the contract implementing such decision.

In the event one spouse is incapacitated or unable to participate in the administration, the other may assume sole powers, but it does not include the disposition or encumbrance without the written consent of the other spouse or authority of the court. In the absence of such consent or authority, such disposition or encumbrance shall be deemed void. However, it must be noted that the transaction will be considered a continuing offer on the part of the consenting spouse and the third person, and thus may be perfected as a binding contract upon the acceptance by the other spouse or by the court.

WHAT PROPERTIES ARE EXCLUDED?

Under the Family Code, excluded from community property are those acquired during marriage by gratuitous title, the fruits, and income thereof, unless expressly provided by the donor, testator, or grantor that they shall form part of the community property; properties for personal and exclusive use of either spouse, except jewelry; and properties acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits and income of such property.

HOW ARE COMMUNITY PROPERTIES DISPOSED OF?

Neither spouse may donate any community property without the other’s consent. Either spouse may, without the consent of the other, make moderate donations for charity, on occasions of family rejoicing or distress.

Considering that absolute community of property is a form of co-ownership, a spouse can only dispose of, by will, his or her interest in the community property but not the specific property.

WHAT HAPPENS UPON DISSOLUTION?

The community of property is considered dissolved when the marriage is annulled or declared void, or when there is a decree of legal separation or judicial separation of property during the marriage; or upon the death of one of the spouses.

A mere separation between spouses shall not affect the absolute community except that the spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported. 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.

If a spouse, without just cause, abandons the other or fails to comply with his/her obligations, 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 conditions as the court may impose.

LIQUIDATION OF ASSETS, HOW DONE?

Upon dissolution of the absolute community regime, the net properties shall be divided equally between husband and wife, unless a different proportion was agreed upon marriage, or unless there has been a voluntary waiver of their share.

At the point of partition, the conjugal dwelling or lot shall be adjudicated to the spouse with whom the majority of the common children choose to remain unless otherwise agreed upon. Children below the age of seven years are deemed to have chosen the mother unless the court decides otherwise. In case there is no such majority, the court shall decide, taking into consideration the best interests of the children.

Upon the termination of the marriage by death, the surviving spouse shall liquidate the community property either judicially or extra-judicially and within six months from the death of the other spouse. If no liquidation is made within that period, 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 hence govern the property relations of the subsequent marriage.

Reference: Articles 88-104, Executive Order No. 209, series of 1987 or the Family Code of the Philippines

Henry L. Yap is an Architect, Fellow of both Environmental Planning and Real Estate Management. He is one of the Undersecretaries of the Department of Human Settlements and Urban Development.