REGIME OF SEPARATION OF PROPERTY

This is another system regarding the property of spouses

Concept
- The spouses retain ownership, management, and control of their properties before the marriage
and those acquired during the marriage
- Together with their earnings and fruits and accessions of their separate properties
- Each of them is responsible for his or her liabilities
- Each of them contributes to the family expenses proportionately with their income or value of
their properties

Difference of Separation of Property to ACP and CPG

- In ACP and CPG regimes, there are common properties between spouse, while in Separation of
Property regime, there is no common properties
- In ACP and CPG regimes, there are liquidation of property, while in Separation of Property, there
is none
- In ACP and CPG regimes, it can be converted during the marriage into separation of property
regime with the court’s approval, while in complete separation of property regime, once
established in marriage, cannot be changed or converted into any other regime during the
marriage because there is no provision of law allowing such conversion

Advantages
- It is simple because there are no common property
- No liquidation is needed
- Neither spouse can be accused of being interested in the other’s properties

Disadvantages
- It is inconsistent with the community of life and interests which a marriage is supposed to create
- It is based on distrust and not favorable to family unity
- It is ordinarily unfavorable to the wife whose duties in the home give her less opportunity to
earn for herself
- It may lead to constant disputes between the spouses in the sharing of family expenses
- It is against the custom of the Filipinos which is trust and sharing between the spouses

When this separation of property exists?

1. By agreement of the parties in their marriage settlement before marriage or
2. If decreed by the court in proper case

Art. 143. Should the future spouses agree in the marriage settlements that their property relations
during marriage shall be governed by the regime of separation of property, the provisions of this
Chapter shall be suppletory application.
- A regime of separation of property is governed by the provisions of the marriage settlement
- It is also governed by the provisions of this Chapter by way of suppletory application
Article 144 talks about the kinds of separation of property

Art. 144. 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 absolute
community

Kinds of Separation of Property

1. As to extent
a. Total separation of property
b. Partial – property not agreed upon as separate property shall be absolute community
party, unless the parties agree otherwise
2. As to kinds of property
a. Present property
b. Future property
c. Both present and future property

Article 145 talks about the rights of the spouses under the separate of property regime

Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate
estate, without need of the consent of the other. To each spouse shall belong all earnings from his or
her profession, business or industry and all fruits, natural, industrial or civil, due or received during
the marriage from his or her separate property
- Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate,
without need of the consent of the other
- To each spouse shall belong all earnings from his or her profession, business or industry and all
fruits, natural, industrial or civil, due or received during the marriage from his or her separate
property

Article 146 talks about the liability of spouses for family expenses

Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of
insufficiency or default thereof, to the current market value of their separate properties.
- Both spouses shall bear the family expenses in proportion to their income
- If Spouse A has an income of P 20,000 and Spouse B has an income of 10,000, therefore Spouse
A shall bear the 67% of the family expenses and Spouse B shall bear the 33%. (20,000/30,000 =
67%; 10,000/30,000 = 33%)
- In case of insufficiency or default thereof, in proportion to the current market value of their
separate properties.

Article 146 paragraph 2

The liabilities of the spouses to creditors for family expenses shall, however, be solidary. (215a)
- As to the creditors, the liability of the parties for family expenses is solidary
- Payment to the creditors shall be 50/50 to each of the spouse
PROPERTY REGIME OF UNION WITHOUT MARRIAGE

Articles 147 and 148 talks about the property regime between couples living together without marriage

Conditions in Article 147

1. When a man and a woman who are capacitated to marry each other, live exclusively with each other
as husband and wife without the benefit of marriage
- The parties must be capacitated to marry each other and have no legal impediment to get
married
- The cohabitation of the parties must be exclusive. Excluded here is a man living with several
women at the same time or woman living with several man at the same time.
- There must be a real cohabitation or living together as husband and wife. Transient relationship
is not included here like visiting of a man to a woman from time to time for a long period
- The idea behind this provision is to encourage the parties who have no legal impediment to
marry each other to eventually legalize their union
2. A man and woman living together under a void marriage
- This applies to a void marriage where the parties or either of them does not have an existing
valid marriage with anyone else
- Therefore, bigamous marriage will not fall under this Article
- If parties do not have existing marriages with other persons but their marriage is void for other
reasons (like incestuous marriage or marriage against public policy), this article will apply

Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with
each other as husband and wife without the benefit of marriage or under a void marriage, their wages
and salaries shall be owned by them in equal shares and the property acquired by both of them
through their work or industry shall be governed by the rules on co-ownership.
- Wages and salaries of one party or both parties shall be owned by them in equal shares (50/50)
- Property acquired by both of them through their work or industry shall be governed by the rules
of co-ownership, which means that the parties own said properties in proportion to their
respective efforts in acquiring the same
- Management of the properties co-owned by the parties should be joint, since their property
relations is governed by the rules of co-ownership

Art. 147 paragraph 2

In the absence of proof to the contrary, properties acquired while they lived together shall be
presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them
in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the
other party of any property shall be deemed to have contributed jointly in the acquisition thereof if
the former's efforts consisted in the care and maintenance of the family and of the household.
- In absence of proof as to the contribution of each party to the said joint efforts, it is presumed
that it was obtained through equal efforts, work or industry, and shall be owned by them in
equal shares
- If only one party acquires the property and the other party involves in the care and maintenance
of the family and of the household, both parties shall be deemed to have contributed jointly in
the acquisition. This includes even the involvement of one party in acquisition of property is only
through moral and inspirational in character
- If property was acquired by either party through donation or succession or as exchange for such
exclusive properties, this Article does not apply.
 - The fruits and income of the above-mentioned exclusive properties are not also covered by this
Article

Article 147 paragraph 3

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired
during cohabitation and owned in common, without the consent of the other, until after the
termination of their cohabitation.
- Inter vivos (Latin, between the living) is a legal term referring to a transfer or gift made during
one's lifetime, as opposed to a testamentary transfer (a gift that takes effect on death)
- Neither party can encumber or dispose by acts inter vivos of his or her share in the said
properties without the consent of the other (but can be made with the consent of both)
- This restriction continues until the termination of cohabitation
- The reason: if they are allowed to dispose of their shares in said properties like in a true co-
ownership, it will destroy their relationship. Because the Family Code would like to encourage
the parties to legalize their union someday

Article 147 paragraph 4

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in
the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver
by any or all of the common children or their descendants, each vacant share shall belong to the
respective surviving descendants. In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.
(144a)
- If only one party is in good faith that their marriage is valid, but the other party having aware
that their marriage is void but did not communicate it to the innocent party, the guilty party’s
share in the properties owned in common shall be forfeited
o In favor of their common children
o In case of predecease (died first) of a common child, in favor of the descendants of that
said child, who take the vacant share left by the deceased child
o In case the common child waive his right to the said property, the descendants of that
common child has the right to the vacant share waived by the former
o If the descendant dies ahead of the common child of whom he is a descendant, there
will be no transmission between the two
o Example: If A is the guilty husband, B is the innocent wife, C is their common child, and
D is the child of C. The share in the property of A shall be forfeited in favor of C. In case C
is dead, D shall have the right of the property. In case D died first, there is no
transmission of the property between C and D. If C waived his right to the property or
rejected the property, D shall have the right to that property even all of them are still
alive, because the transmission is inter vivos, not mortis causa (transmission takes place
upon the termination of cohabitation of the parties and not upon the death of either of
them)
Conditions in Article 148
- Applies only to bigamous marriage
- Adulterous marriage (Woman is married to another, while the man is single)
- Relationships In a state of concubinage (Man is married to another, while the woman is single)
- Relationships where both man and woman are married to other persons
- Multiple alliances of the same married man (A man with several women)

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired
by both of the parties through their actual joint contribution of money, property, or industry shall be
owned by them in common in proportion to their respective contributions. In the absence of proof to
the contrary, their contributions and corresponding shares are presumed to be equal. The same rule
and presumption shall apply to joint deposits of money and evidences of credit.
- Only properties acquired by the parties through their actual joint contribution of money,
property or industry shall be owned in common in proportion to their respective contributions
- Wages and salaries earned by each party belong to him or her exclusively
- Care by one party of the home, children, and household, or spiritual or moral inspiration
provided to the other, is not included in this Article
- In the absence of proof of contributions, their contributions and shares to the properties
acquired during their cohabitation are presumed to be equal
- Same rule applies to joint deposits of money and to evidences of credit

Article 148 paragraph 2

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to
the absolute community or conjugal partnership existing in such valid marriage. If the party who acted
in bad faith is not validly married to another, his or her share shall be forfeited in the manner
provided in the last paragraph of the preceding Article.
- If one party is validly married to another, his or her share in the co-owned properties will accrue
(accumulate) to the absolute community or conjugal partnership of his or her existing marriage
- If the party who acted in bad faith is not validly married to another, his or her share shall be
forfeited in the same manner as that provided in the last paragraph of Article 147

Article 148 paragraph 3

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.
- The same rules on forfeiture shall apply if both parties are in bad faith.
THE FAMILY
Chapter I - The Family as an Institution

Constitutional policies on Family (1987 Constitution)

Art. II, Sec. 12, Declaration of Principles and State Policies
“The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic
autonomous social institution.”

Art. XV, The Family

“The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen
its solidarity and actively promote its total development.”

Judicial Concept of Family

“The family is the natural and social institution, founded on the conjugal union, that binds together the
individuals comprising it, for the common accomplishment of the material and spiritual ends of life,
under the authority of the original ascendant who heads it.”

Importance of the Family

- The family is an essential factor in the general, social, and even political life
- Constant living together of husband and wife, and of parents and children, contributes to the
development of a strong sense of duty, of an aptitude for heroic sacrifices, and of love by future
generations of the traditions and moral conquests of those who preceded them
- The family is an indispensable element of social cohesion and equilibrium
- The vitality and strength of the State depends upon the solidarity of its nucleus, the family
- That’s why the State gives much importance to the family

Art. 149. The family, being the foundation of the nation, is a basic social institution which public policy
cherishes and protects. Consequently, family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given effect.
- The family is the foundation of the nation means that the weaker the family, the weaker nation.
But the stronger the family, the stronger the nation.
- Being the foundation of the nation, the family is a basic social institution which public policy
cherishes and protects
- Consequently, family relations are governed by law
- No custom, practice, or agreement destructive of family shall be recognized or given effect

Art. 150. Family relations include those:

(1) Between husband and wife;
(2) Between parents and children;
(3) Among brothers and sisters, whether of the full or half-blood.

Rules to remember on family relations

1. Family relations exist among the relatives aforementioned even if they are not living together
2. Other relatives like cousins, nephews and nieces, and domestic helpers, who grew up or are
living with the family, are members of the household but not of the family
3. Illegitimate children are not included in the family relations because they have their own
families (Because this article refers to the family as an institution)
 4. Adopted children are part of the family
5. Nephews and nieces, uncles and aunts, are not included because they have their own families
6. The relatives mentioned include those of the husband and wife

Art. 151. No suit between members of the same family shall prosper unless it should appear from the
verified complaint or petition that earnest efforts toward a compromise have been made, but that the
same have failed. If it is shown that no such efforts were in fact made, the same case must be
dismissed.

Reasons for the Article 151

- This rule is introduce because it is difficult to imagine a sadder and more tragic spectacle than a
litigation between members of the same family
- It is necessary that every effort should be made toward a compromise before a litigation is
allowed to breed hate and passion in the family
- It is known that a lawsuit between close relatives generates deeper bitterness than between
strangers

Requirements that must be observed in order that the suit between members of the family prospers:
- It must appear from the verified complaints or petition that earnest efforts toward compromise
have been made but that the same have failed
- The above allegation is jurisdictional, and if there is no such allegation in the verified complaint
or petition, the court can dismiss the case outright for lack of jurisdiction over the same
- The petition or complaints is required to be verified as an assurance of the truth of the
allegation therein that earnest efforts toward a compromise have been made but the same have
failed
- The reasons for the rule is to avoid or diminish litigations among members of the same family
- However, even if the required allegation is made but it appears at the pre-trial that the same is
not true, the case must be dismissed
- If the case can be compromised at the pre-trial, the case will be dismissed because the
compromise will end the litigation.

Art. 151 paragraph 2

This rules shall not apply to cases which may not be the subject of compromise under the Civil Code.
(222a)
- The civil status of persons
- The validity of a marriage or a legal separation
- Any ground for legal separation
- Future support
- The jurisdiction of courts
- Future legitime
- (Art. 2035, Civil Code)

Reasons why Article 151 does not enumerate the matters that cannot be compromised
- According to J.B.L. Reyes, Chairman of the Committee that drafted the Family Code, the
provisions on compromises might be modified or amended in the future, so that it would be
safer just to refer to the provisions of the Civil Code on the subject