Can there be
separation of property between the spouses during the marriage?
In the absence of an
express declaration in the marriage settlements, the separation of property
between spouses during the marriage shall not take place except by judicial order. Such judicial
separation of property may either be voluntary or for sufficient cause. (Art.
134, FC)
System of complete
separation of property
The system of complete
separation of property shall govern the property relation of the spouses only
in the following cases:
1. When it expressly
provided for in the marriage settlements;
2. When it is so declared by the court;
3. When the surviving
spouse contract a subsequent marriage without first liquidating the community
or conjugal partnership property, a mandatory regime of complete
separation of property shall govern the property
relations of the subsequent marriage. (Art. 103 par. 3, FC and Art 130 par. 3,
FC)
Sufficient cause for
judicial separation of property
Any of the following
shall be considered sufficient cause for judicial separation of property:
(1) That the spouse of
the petitioner has been sentenced to a penalty which carries with it civil interdiction;
(2) That the spouse of
the petitioner has been judicially declared an absentee;
(3) That loss of parental authority of the spouse of petitioner has been decreed by the court;
(4) That the spouse of
the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article
101;
(5) That the spouse
granted the power of administration in the marriage settlements has abused that power; and
(6) That at the time
of the petition, the spouses have been separated in fact for at least one year and
reconciliation is highly improbable.
In the cases provided
for in Numbers (1), (2) and (3), the presentation of the final judgment against
the guilty or absent spouse shall be enough basis for the grant of the decree
of judicial separation of property. (Art. 135, FC)
Steps in voluntary
separation of property.
The spouses may
jointly file a verified petition with the court for the voluntary dissolution of the absolute community
or the conjugal partnership of gains, and for the separation of their common
properties.
All creditors of the absolute community or of
the conjugal partnership of gains, as well as the personal creditors of the
spouse, shall be listed in the petition and notified of the filing thereof. The
court shall take measures to protect the creditors and other persons with
pecuniary interest. (Art. 136, FC)
Liquidation upon
separation of property; support
Once the separation of
property has been decreed, the absolute community or the conjugal partnership
of gains shall be liquidated in conformity with this Code.
During the pendency of
the proceedings for separation of property, the absolute community or the
conjugal partnership shall pay for the support of the spouses and their
children. (Art. 1374, FC)
Regime after
dissolution
After dissolution of
the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply. (Art. 138, FC)
Recording of
requirements
The petition for
separation of property and the final judgment granting the same shall be
recorded in the proper local civil registries and registries of
property. (Art. 139, FC)
Protection to
creditors
The separation of
property shall not prejudice the rights previously acquired by creditors. (Art. 140, FC)
How and when may the
spouses terminate the judicial separation of property? What is the effect of
such termination?
The spouses may, in
the same proceedings where separation of property was decreed, file a motion in
court for a decree reviving the property regime that existed between them
before the separation of property in any of the following instances:
(1) When the civil
interdiction terminates;
(2) When the absentee
spouse reappears;
(3) When the court,
being satisfied that the spouse granted the power of administration in the
marriage settlements will not again abuse that power, authorizes the resumption
of said administration;
(4) When the spouse
who has left the conjugal home without a decree of legal separation resumes
common life with the other;
(5) When parental
authority is judicially restored to the spouse previously deprived thereof;
(6) When the spouses
who have separated in fact for at least one year, reconcile and resume common
life; or
(7) When after
voluntary dissolution of the absolute community of property or conjugal
partnership has been judicially decreed upon the joint petition of the spouses,
they agree to the revival of the former property regime. No voluntary
separation of property may thereafter be granted.
The revival of the
former property regime shall be governed by Article 67. (Art. 141, FC)
Transfer of
administration
The administration of
all classes of exclusive property of either spouse may be transferred by the
court to the other spouse:
(1) When one spouse
becomes the guardian of the other;
(2) When one spouse is
judicially declared an absentee;
(3) When one spouse is
sentenced to a penalty which carries with it civil interdiction; or
(4) When one spouse
becomes a fugitive from justice or is in hiding as an accused in a criminal case.
If the other spouse is
not qualified by reason of incompetence, conflict of interest, or any other
just cause, the court shall appoint a suitable person to be the administrator.
(Art. 142, FC)
*****
Should
the spouses, H and W, decide to separate their properties during the marriage,
how could they validly perfect the separation of such properties?
Spouses
H and W have to secure judicial approval. Said separation of property may
either be voluntary (by agreement) or for sufficient cause. (Art. 134, FC)
H and
W, after 10 years of unhappy marital life, signed a formal agreement whereby
they shall divide, share and share alike, all their conjugal properties. State
your opinion as to the legal effect of such agreement.
The
agreement is void. According to Art. 134 of the FC, "in the absence of an express declaration in the
marriage settlements, the separation of property between spouses during the
marriage shall not take place except by judicial order. This principle declares as void and no
effect every extrajudicial agreement, during marriage, for the dissolution of
the conjugal partnership or the absolute community of property between husband
and wife.
What
are the causes for judicial separation of property?
It
depends.
1. If
the judicial separation of property is voluntary, then mere agreement by both
spouses will be sufficient.
2. If
it is involuntary, any of the causes mentioned in Art. 135, FC shall be
considered sufficient.
What
are the effects of a decree of separation of property between the spouses?
Once
the separation of property has been decreed:
1. The absolute community or the conjugal partnership of
gains shall be liquidated in conformity with this Code.
During the pendency of the proceedings for separation of
property, the absolute community or the conjugal partnership shall pay for
the support of the spouses and their children. (Art. 137,
FC)
2. After dissolution of the absolute community or of the
conjugal partnership, the provisions on complete separation of property shall
apply. (Art. 138, FC)
3. The rights previously acquired by creditors are not
prejudiced. (Art. 140, FC) Also the spouses shall continue to be solidary
liable with their separate properties to creditors (Art. 121, last sentence, FC)
4. Notwithstanding the separation of property between the
spouses, the spouses shall continue to be jointly liable for the support of the
children. (Art. 195 [3], FC). Likewise, the spouses shall continue to be
mutually obliged to support each other unless a final judgment granting a
petition for legal separation or for annulment of marriage or declaration of
nullity of marriage has been obtained, in which case, the obligation of mutual
support between the spouses ceases. (Arts. 195 and 198, FC)
How does an instance where the assumption of sole
administration by either spouse of the absolute community or conjugal
partnership property differ from a cash where administration of all
classes of exclusive property of either spouse are transferred by the court to
the other spouse?
One
spouse may assume the sole administration of
the absolute community or conjugal partnership property in the event that the
other spouse is incapacitated or otherwise unable to participate in the
administration of the common properties. Said spouse can
assume administration without seeking court authorization. This is so
because the administration of the absolute community or conjugal
partnership property belong to both spouses jointly. (Arts. 96 and 94, FC)
On the other hand, administration of all classes of
exclusive property of either spouse may be transferred by the court to the
other spouse:
(1) When one spouse becomes the guardian of
the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries
with it civil interdiction; or
(4) When one spouse becomes a fugitive from
justice or is in hiding as an accused in a criminal case.
If the other spouse is not qualified by reason of
incompetence, conflict of interest, or any other just cause, the court shall
appoint a suitable person to be the administrator. (Art. 142, FC)
0
Comments
