System of Absolute Community: Property Relations in Marriage

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 2.

What is the 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.

What constitutes community property?

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.

What properties are excluded from the community property?

(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.

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.

What are the charges and obligations of the absolute community?

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.

If a spouse incurs gambling loses in a casino, can he/she charge the amount to the community property?

No. 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.

Who administers and enjoys the 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.

What is the rule on disposition of properties of the spouses?

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.

When is the absolute community terminated?

(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.

What happens if the spouses separate 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.

Is separation de facto different from abandonment?

Yes. 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.

What if a spouse abandons the other?

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.

What is the procedure after the dissolution of the absolute community regime?

(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.

If a spouse dies, how is the community property liquidated?

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.

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 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.

11 thoughts on “System of Absolute Community: Property Relations in Marriage

  1. pian

    TO ALL
    I know this to be out of place. Please bear with me. I just want to create awareness by choosing the busy forum or the latest.
    Do consider Dr. Martin Bautista for the next elections obviously (a senatorial candidate of ‘Ang Kapatiran’ together with Adrian Sison and Zosimo Paredes). He’s a 45-year-old gastroenterologist in the US who came home after 17 years. You can see from his background that he truly means service. For those who find him to be a hypocrite for working abroad, do understand he’s a family man who needs to sustain his family, that he will be able to keep his independence by not relying on public funds to support his family. He helps his countrymen in his capacity but it’s just not enough for there are millions of Filipinos. It’s a good start in Philippine Politics to have him and his party around.
    I urge you to forward/text/inform all your contacts about them. I believe they only lack exposure that’s why I’m doing this. But I can’t do it alone so I’m appealing to everyone’s help. If all will inform their contacts about them and urge them as well to forward, we might hit a million.
    We cannot afford to be indifferent now if we want meaningful change. Otherwise we only have ourselves to blame. BUT TOGETHER WE CAN MAKE A DIFFERENCE.

  2. pax2006

    “…the aggrieved spouse may petition the court for receivership” – what do you mean about the term “receivership” ?

    How does a spouse liquidate the absolute community of property thru judicially or extra judicially?


  3. yin_hedwig

    We are encountering some worries right now. My parents are married in the year 1980 and my mother receive properties from her parents in the form of donation last yrat 2010. Here goes the problem my father is so interested in the property of my mother for it is generating some income, the bad thing is we are suspecting that he has other woman, I just want to know what is our rights as children with the properties in cases if we prove he has other woman and if my mother dies.

    We just want to protect our mother and our rights as well and to know the right thing to do regarding this matter. I hope you can help us

  4. francis veroy

    My wife died about 3 years ago.We properties of vacant lot in bulacan and detached house and lot in maypajo, Caloocan. Is this community property ? Upon either extra-judicial settlement or judicial, my understanding upon division of these propertie into 3 person ( 2 adult children ) and myself. I should get 1/2 of all and 1/3 additional from their share. Is this correct ?

  5. sharon

    My husband and I are separated but not legally. He asks me now to sign a waiver of marital property rights as he needs it to proceed with a home loan. From the time of our separation, I was never supported. He had our kids for years and he eventually gave one to me when she was acting up and demanding to live with me. The two children do not share equal support from him. Should I give him this waiver? Are there any things I should look in to so as to assure that “waiving my rights” does not affect the rights of my children? I’d appreciate your inputs..thank u

  6. Sonny

    Dear Sirs,

    I just want to ask if salaries and other benefits earned by one spouse form part of the Absolute Community of Property?


  7. Rosa

    Question: This is a second marriage for both of us with children from previous marriages; also with some assets before marriage. In case of death of one spouse, how will community property divided?

  8. Rosa

    Can properties and assets of each spouse acquired before marriage become absolute community property? If it is so, in case of death of one spouse, (in the absence of a will), is the ownership of such transferred to the surviving spouse?

  9. k.costes

    My dad is about to retire.they are separated wd my mother but not father has now 2nd legitimate children, can we demand for a share in my father’s retirement? Thank u for responding I will appreciate it


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