We previously noted that we are breaking down the discussion on the property relations of the spouses during marriage, 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 3.
What is the conjugal partnership of gains?
Oftentimes referred to as the CPG, it is one of the property relations between the spouses, under which the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements. In other words, the following are placed in a common fund:
1. the proceeds, products, fruits and income from their separate properties; and
2. those acquired by either or both spouses through their efforts or by chance.
In what instances shall the regime of CPG apply?
It applies only when the future spouses agree to it in the marriage settlement, if any. It also applies to conjugal partnerships of gains already established between spouses before the effectivity of the Family Code, without prejudice to vested rights. This is the default property relationship under the Civil Code, which was changed to that of absolute community of property under the Family Code.
When does the CPG begin?
It begins at the precise moment when the marriage is celebrated, exactly like in absolute community of property.
Can a spouse waive his/her share in the community property during marriage?
No. Except in case of judicial separation of property, any waiver of rights, shares and effects of the absolute community of property during the marriage can be made.
Are the rules on ordinary partnership applicable to the conjugal partnership of gains?
As a rule, yes, but only if not in what is expressly provided in the pertinent provisions of the Family Code or by the spouses in their marriage settlements.
What are the exclusive property of each spouse?
(1) That which is brought to the marriage as his or her own;
(2) That which each acquires during the marriage by gratuitous title (through pure liberality, as in donation and testate/intestate succession);
(3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and
(4) That which is purchased with exclusive money of the wife or of the husband.
What is the significance of having an exclusive property?
The spouses retain the ownership, possession, administration and enjoyment of their exclusive properties. A spouse may also mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same.
Either spouse may, during the marriage, transfer the administration of his or her exclusive property to the other by means of a public instrument, which shall be recorded in the registry of property of the place the property is located. However, the alienation of any exclusive property of a spouse administered by the other automatically terminates the administration over such property and the proceeds of the alienation shall be turned over to the owner-spouse.
What properties belong to the conjugal partnership?
(1) Those acquired by onerous title during the marriage at the expense of the common fund, whether the acquisition be for the partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of the spouses;
(3) The fruits, natural, industrial, or civil, due or received during the marriage from the common property, as well as the net fruits from the exclusive property of each spouse;
(4) The share of either spouse in the hidden treasure which the law awards to the finder or owner of the property where the treasure is found;
(5) Those acquired through occupation such as fishing or hunting;
(6) Livestock existing upon the dissolution of the partnership in excess of the number of each kind brought to the marriage by either spouse; and
(7) Those which are acquired by chance, such as winnings from gambling or betting. However, losses therefrom shall be borne exclusively by the loser-spouse.
What is the presumption regarding properties acquired during marriage?
All property acquired during the marriage, whether the acquisition appears to have been made, contracted or registered in the name of one or both spouses, is presumed to be conjugal unless the contrary is proved.
What is the rule in case of purchase by installment?
Property bought on installments paid partly from exclusive funds of either or both spouses and partly from conjugal funds belongs to the buyer or buyers if full ownership was vested before the marriage and to the conjugal partnership if such ownership was vested during the marriage. In either case, any amount advanced by the partnership or by either or both spouses shall be reimbursed by the owner or owners upon liquidation of the partnership.
What is the rule in case a spouse has a credit payable to him over time?
Whenever an amount or credit payable within a period of time belongs to one of the spouses, the sums which may be collected during the marriage in partial payments or by installments on the principal shall be the exclusive property of the spouse. However, interests falling due during the marriage on the principal shall belong to the conjugal partnership.
What is the rule if improvements are made on that exclusive property using conjugal funds or through the acts or efforts of either or both spouses?
The ownership of improvements, whether for utility or adornment, made on the separate property of the spouses at the expense of the partnership or through the acts or efforts of either or both spouses shall pertain to the conjugal partnership, or to the original owner-spouse, subject to the following rules:
1. When the cost of the improvement made by the conjugal partnership and any resulting increase in value are MORE than the value of the property at the time of the improvement, the entire property of one of the spouses shall belong to the conjugal partnership.
2. When the cost of the improvement made by the conjugal partnership and any resulting increase in value are LESS than the value of the property at the time of the improvement, the entire property shall remain with the owner-spouse.
3. In either case, the owner-spouse or the conjugal partnership, as the case may be, is entitled to reimbursement for the value of the principal property or the improvement, as the case may be.
4. It doesn’t matter if the improvements are for utility or adornment.
What are the charges upon and obligations of the conjugal partnership?
The conjugal partnership shall be liable for:
(1) The support of the spouse, their common children, and the 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 conjugal partnership of gains, or by both spouses or by one of them 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 benefited;
(4) All taxes, liens, charges, and expenses, including major or minor repairs upon the conjugal partnership property;
(5) All taxes and expenses for mere preservation made during the marriage upon the separate property of either spouse;
(6) Expenses to enable either spouse to commence or complete a professional, vocational, or other activity for self-improvement;
(7) Ante-nuptial debts 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; and
(9) Expenses of litigation between the spouses unless the suit is found to groundless.
If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties.
What are the rules concerning personal debts contracted before or during the marriage?
1. As a rule, the payment of personal debts contracted by the husband or the wife before or during the marriage shall not be charged to the conjugal partnership properties.
2. However, these debts shall be charged to the conjugal partnership properties insofar as they redounded to the benefit of the family.
3. If the spouse has no exclusive property, it may be charged to the conjugal partnership, subject to the provisions below.
What are the rules concerning fines and pecuniary indemnities imposed on each spouse?
These cannot be charged to the partnership. However, the payment of personal debts contracted by either spouse before the marriage, that of fines and indemnities imposed upon them, as well as the support of illegitimate children of either spouse, may be enforced against the partnership assets after the charges/obligations enumerated in above 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.
What is the rule in case of winnings or losses in gambling?
Any loss incurred by a spouse during the marriage in any game of chance or in betting, sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be borne by that spouse, and shall not be charged to the conjugal partnership. Any winnings, on the other hand, shall form part of the conjugal partnership property.
Who has the authority to administer the conjugal partnership property?
The administration and enjoyment of the conjugal partnership shall belong to both spouses jointly. In case of disagreement, 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 conjugal 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.
Can either spouse make donations of conjugal partnership property?
As a rule, neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress.
When does the conjugal partnership terminate?
(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.
Does the separation in fact or de facto separation between the spouses affect the conjugal partnership?
No. However, the following are the effects:
(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 conjugal partnership property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon 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.
What is the rule if a spouse abandons the other?
If a spouse without just cause abandons the other or fails to comply with his or her obligation to the family (referring 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 conjugal partnership property, subject to such precautionary conditions as the court may impose.
A spouse is deemed to have abandoned the other when he 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.
What is the applicable procedure in the event of dissolution of the conjugal partnership regime?
The following procedure shall apply:
(1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse.
(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of either spouse shall be credited to the conjugal partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of property or for the value of his or her exclusive property, the ownership of which has been vested by law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with their separate properties.
(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each of them.
(6) Unless the owner had been indemnified from whatever source, the loss or deterioration of movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event, shall be paid to said spouse from the conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties shall constitute the profits, 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 or forfeiture of such share as provided in this Family Code.
(8) The presumptive legitimes of the common children shall be delivered upon partition.
(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall, unless otherwise agreed upon by the parties, 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 is no such majority, the court shall decide, taking into consideration the best interests of said children.
If a spouse dies, how is the conjugal partnership liquidated?
Upon the termination of the marriage by death, the conjugal partnership 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 conjugal partnership property either judicially or extra-judicially within six months from the death of the deceased spouse.
What happens if the foregoing procedure in the immediately preceding paragraph is not carried out?
If the procedure on liquidation, as outlined above, is not followed: (a) any disposition or encumbrance involving conjugal partnership 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.
How is support charged during the liquidation?
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.
atty forgot to say better i put it in the property was paid by us both when we were married also the land was hers before she married me but now sad she died im a forigner and i know a bit u law its conjugal but the family not give me the titles so far i have a lawyers tell me to go for what is mine as its in my family name,how i go about this please what a good lawyer to trust in manila reason i ask my wife friend before works the manila courts told me to go apply for this thx.
Dear Atty.,
My parents, were separated for 20 years now. With my knowledge, my mother has no intention to return anymore and has live in partner and still continues to use until now my fathers family name as her last name as she works as government employee. As she retires, do we have the right or does my father has still have the right to file any petition for receivership since my mother did not file any annulment or void of marriage.
Dear Atty,
I’m in the process of purchasing a lot from my aunt. In the TCT, it indicates there that my aunt is “is married to” my uncle. Does he (my uncle) also need to co-sign in the deed of absolute sale? Do I need to show IDs of him also?
Thanks
Hi Atty,
I just want to ask a piece of advice about my right .
My husband is Fil-Am citizen. He went to Philippines para pakasalan AKo.,that year was 2010.
Penitition nya KO at ang mga anak KO(not his real kids), at nakarating kame dito sa US in the year of 2012.he bought the house before we came here in US. So lahat ng mga properties nakapangalan lahat sa kanya,except the bank account.
Tanong KO lang po kung meron po bako rights sa mga properties kahit lahat NASA kanyang pangalan.
Balak KO napo kasi makipag divorce ,nag a away make dahil sa mga anak nia sa previous spouse. Di KO po alam kung ano po ang mga karapatan KO in case mag file AKo ng divorce.
Sana po matulungan niyo KO.
Maraming salamat po.
On the properties .. When a husband and wife separated a year after a property was acquired thru housing loan with 10 years term and the husband is solely paying for the property even after they were separated evident by the automatic deduction from the husband payroll account. The annulment case was filed and still ongoing for almost 5 years now. Who has the exclusive right to the property?
Another case: When a husband and wife separated after a year a property was acquired under Employee Housing Program wherein half of the value of the property were paid by the company and half is being paid and contineously paying the 10 year loan by the husband and deducted from the Husband payroll account. The annulment case was filed and still ongoing for almost 5 years now, who has the exclusive right to the property?
Atty.,
I have mortagage a house and lot during the duration of my annulment procedures. And since it was via pagibig and was advise at that ime that since my status was still married, have to have my husbands name and signature on it which he did signed. Few years later our marraige was declared null and void, and later i completed the mortagage. i finally got my title and sad to say mu ex husbands name was on it as my spouse. We have been annulled for several year and now I plan to sell that said property. Do i stil need his consent and how do I proceed? By the way I paid/mortgage this property using my own income.
Gd pm po Atty.
Magtatanong lang po ako ng advise nyo.
May binili po ang nanay ko na lupa sa kapatid nya noong year 2000. Nagagree po silang dalawa na nanay ko na po ang magbabayad ng capital gains tax komo mura lang binenta ang lupa sa nanay ko.
Napanotaryo po nung 2010 lamang, pero di pa rin pi nabayaran ang capital gains tax hangang ngayun at wala naman parin pong changes ang nagawa ng nanay ko sa original na titulo, except kumuha lamang po kami ng certified true copy at nakita namin na malinis naman po ang titulo na binenta sa nanay ko.
Kinausap po namin magkakapatid ang kapatid ng nanay ko na di pa rin namin nalilipat sa pangalan ng nanay ko ang lupang nabili sa kanya. Suggestion po nya na gawin na lang namin kung anong pwede solusyon para maayos namin, kasi may alzheimer na po nanay ko. Nung 2011, binigyan na po ako ng nanay ko ng SPA to take charge and decide tungkol sa lupang ito.
Nagsuggest po ang manugang na CPA ng kapatid ng nanay ko na magpagawa na lang kami ng DEED OF DONATION para macancel out na lang ung original na deed of sale ng nanay ko at tiya ko since wala naman nagawa pang changes sa original titulo.
Pwede po bang gawin namin un at kaming lahat na magkakapatid, instead na nanay ko, ang donees ng tiya ko at magiging dated 2016 na po ang deed of donation kahit nagbilihan naman po talaga ang nanay ko at tiya ko nuong 2000?
Ano na po ang mangyayari sa original na notaryadong deed of sale? Maka-cancel na lang po ba yun automatically pag ung deed of donation ang binasihan namin ng pagbayad ng donor’s tax at pagtransfer sa names naming magkakapatid?
Safe po ba na di sila maghahabol sa future kung lalabas na donated lang po ang lupa at kapag di pa namin nababayaran ang donor’s tax?
If di po advisable at safe kami na palitan na lang ng deed of donation ang original deed of sale namin, pwede po ba na gumawa na lang po kami ng new deed of sale na dated na lang 2016 (para maging ngayung taon na lang po ang umpisa ng basis of computation ng tax).
Ano po ang mas maganda naming magawa habang buhay pa po ang tiya ko (85 years old ) at nanay ko (84yrs old, last stage of alzheimer na po sya). Please help and guide us po.
Maraming salamat po Atty. Looking forward po sa advise ninyo.
God bless po.
SAM
Dear Atty. Fred
Good Day!
I have an Aunt who was married and owned a 1 hectare of a rice field which they bought it from her parents tenanted by her 3 brothers. Her husband sold to my aunt his share on a land for a reason that their marriage is at stake. My Aunt executed a document notarized by a PAO lawyer. But my aunt died first.My question is..
Could her husband have still the right over the said property?
A year after her husband died too, and they don’t have a child.
Who will now be the legal heirs?
And my aunt when she was still alive give a power of attorney as administrator of the said property to one of his brother.
What is now the status of the executed power of attorney now she had already died?
How is the validity of the said documents?
Do we have the right to position the land as heirs of her two brothers who was once a tenant of the said property? Because one of the brother given the power of attorney don’t like the idea.
Did the relatives of my aunt husband has the right to claim from any share over the property?
Sir I would really appreciate your brilliant answer since i could hardly find an attorney to consult such matter since I am teaching in a far flung areas her in Davao.
Thank you very much and Good Bless us all.
Very truly yours,
MARITES S. MILO
nag loan ako sa pag ibig.and then hindi namin nabayaran agad,and nag black listed ako. ang sabi sa pa ibig i re sell na lang ulit sa pangalan ko.nag sign ako for re sell under my name only.is that a conjugal property pa rin?
My husband and I are not legally separated. After our marriage, he entitled me as the other owner of all his properties. Can his immediate family claim the properties without my consent?