Monday, August 13, 2007

Family Code of the Philippines: Primer on the property relations between husband and wife

Articles 74 up to 148, from Title IV of the Family Code, are the governing laws on the property relations between husband and wife. (Note: Article 111 has been amended by RA 10572.)

What governs the property relationship between husband and wife?

Article 74 provides that the property relationship between husband and wife are governed in the following order:

(1) By marriage settlements executed before the marriage;

(2) By the provisions of this Code; and

(3) By the local custom.

What are the property regimes that may be agreed upon by the future spouses?

The future spouses may, in the marriage settlements, agree upon the (1) regime of absolute community, (2) conjugal partnership of gains, (3) complete separation of property, or (4) any other regime.

In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code will govern. (Art. 75)

Can modifications be made to the marriage settlements?

Art. 76 provides that in order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67, 128, 135 and 136.

Art. 77 further provides that the marriage settlements and any modification thereof must be in writing, signed by the parties and executed before the celebration of the marriage. They will not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of properties.

What about minors and marriage settlements?

A minor who according to law may contract marriage may also execute his or her marriage settlements, but they are valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of the Family Code. (Art. 78.)

What if one of the future spouses was sentenced in a criminal case and the sentence carries with it civil interdiction (prohibition from exercising certain civil and political rights)?

Art. 79 provides that for the validity of any marriage settlement executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it is indispensable for the guardian appointed by a competent court to be made a party.

What governs the property relations of spouses?

In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses are governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. (Art. 80.)

Are there exceptions?

Art. 80 provides that the rule does not apply:

(1) Where both spouses are aliens;

(2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and

(3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity.

What if the marriage does not push through?

Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, are rendered void if the marriage does not take place. But stipulations that do not depend upon the celebration of the marriages shall be valid. (Art. 81)

87 comments :

Anonymous said...

Hi,
I'm a student in the US doing research on marriage in the Philippines. I have a few questions:

- How common are marriage settlements?
- Are the barriers to obtaining a marriage settlement, and is so can you give me some reasons? (e.g. cost, time, etc.)?
- Do courts refer to marriage settlements when distributing property after an annulment?

You have a wonderful site. Thanks for your help!

Atty. Gerry T. Galacio said...

Property relations between a husband and wife (including marriage settlements) in the Philippines are governed by Articles 74 to 148 of the Family Code of the Phillpines. My website www.familymatters.org.ph contains the complete provisions of the FC.

Please take note specifically of Articles 74 and 75 of the FC.
Article 74 states, "The property relationship between husband and wife shall be governed in the following order: (1) By marriage settlements executed before the marriage; (2) By the provisions of this Code; and (3) By the local custom."

In relation to sub-paragraph (1) above, Article 22 FC provides that the man and woman should indicate in the marriage certificate or contract (which is a different legal document from a marriage license) what kind of marriage settlement they have agreed on by attaching the said document.

Article 75 on the other hand states, "The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern."

Please take note of the last sentence which states that if there is no marriage settlement agreed upon, then AUTOMATICALLY, absolute community of property governs the property relationship.

The majority of Filipinos have entered into marriage without any marriage settlement because of a great lack of knowledge of these provisions of the FC, and not because of constraints like money, cost, time, etc. Anyway, as you can see above, if there are no settlement agreed upon, then the system of absolute community becomes thye rule between the husband and wife. Exceptions would be the elite of Philippine society who have the privilege of legal advice as to their options in terms of marriage settlements.

The FC in Articles 74 to 148, provides for the rules in the liquidation of the conjugal property. Our courts are duty bound to follow these rules.

You can read specific cases on marriage settlements by searching the Philippine Supreme Court website at www.supremecourt.gov.ph.

lawstudent said...

Thanks for your insights! I really appreciate them.

Also, I accessed the Philippines S.Ct. website you recommended and found my case search capabilities extremely limited. Could you perhaps recommend a case or two that might shed further insight on how courts utilize marriage settlements when determining property relations? I'm only coming across cases that mention in passing that in the absence of marriage settlements, the system absolute property will govern property relations.

Again, many thanks!

Atty. Gerry T. Galacio said...

You may be able to find the information you need through the following:

1. The PIO (Public Information Office) of the Philippine Supreme Court
2. The Chan Robles website (a private law firm in the Philippines with an extensive listing of cases and legal documents)
3. Several companies have produced CDs of Philippine cases extending way back to 1901. The University of the Philippines College of Law library might have copies of these CDs and you can probably request the Librarian for the info you need. Also, the UP Law Center might be able to help you out. The UP LC is the official repository of legal documents in the Philippines. UP’s website is www.up.edu.ph.
4. Atty. Jose Sison writes a popular column “A Law Each Day” for the Philippine Star newspaper; his column discusses Supreme Court cases

lawstudent said...

I forgot to mention, I am an American law student. :)

However, I thank you for your suggestions. I will look them.

lawstudent said...

Disregard my earlier comment. I just realized I did inform you I was a US student.

Again, many thanks!

Human Rights For All said...

In looking at the family code here in the Philippines its very hard to understand some of it. Here is my question that maybe someone can help please. My wifes brother died last October 2, 2007. While he was married 20+ years legally and there were no natural born children, no adopted children and no previous marriage children, to that end no children at all. I would like to know as I have read that the surving spouse was to have made a complete inventory of all assets within 60 days after his death. That was not done and still not done. It is my understanding that the mother and father of the desease is to received part of all assets? and or decendants of him. They had a very large trucking business and we have found that she is selling off items one by one without reporting the assest and or recording them with the proper people. Tacloban City. Thanks for any help in advance.

Atty. Gerry T. Galacio said...

1. It is the New Civil Code of the Philippines, and not the Family Code, which contains the rules on succession (in layman’s terms, inheritance). Please browse the NCC section of my website www.familymatters.org.ph for the complete provisions on inheritance.

Since there was no last will and testament by your wife’s brother, then the rules on INTESTATE SUCCESSION must be followed.

2. When a husband or wife dies without any children, then under the NCC rules on intestate succession, the compulsory heirs and their shares are in their proper order:

[A] The surviving spouse gets one-half of the estate, and the surviving parents of the deceased also get one-half; this is provided by Article 997 of the NCC which states, “When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half.”

[B] If the parents are dead, then the surviving spouse gets one-half, and the other half goes to the brothers and sisters, nephews and nieces (representing any deceased sibling of the deceased spouse); this is provided by Article 1001 of the NCC which states, “Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half.”

3. Under Rule 73 of the Rules of Court (you can see this in the Legal Procedures section of www.familymatters.org.ph), any of the compulsory heirs can file a petition in court to have the estate (the totality of the property left by the deceased) JUDICIALLY settled. To avoid dissipation of the estate, you should immediately file this petition. You can hire a private lawyer, or try to get free legal help from the Integrated Bar of the Philippines chapter in Tacloban City.

Human Rights For All said...

Attorney Galacio thanks for your help and all the information that you've offered. What if in fact she has sold many of the items already and did not inventory any of the assests after he passed away. Your site is truly a blessing and thanks again.

Atty. Gerry T. Galacio said...

1. When any of the compulsory heirs files a petition under Rule 73, he or she should ask court to require the wife to render an inventory of the assets and their status.If she had unlawfully disposed of any assets, she can be required by the court to reimburse to the heirs the value of such assets.

Any of the heirs can also petition the court to be appointed as the administrator or executor of the estate.

2. Please take note that 50% of the estate will go automatically to the wife as her share in the conjugal property. Then the remaining 50% will be divided among the wife and the other heirs according to the proportions provided under the NCC.

3. The other heirs should immediately get the services of a lawyer to protect their rights. It becomes more difficult if the assets have already been disposed of.

Human Rights For All said...

Attorney onec again thanks for the information. Having said that can you tell me if a child that was never legal adoption but only used the family name is that a child under the code a and reconzized by the courts as a legal adopted child?

Kind Regards

Atty. Gerry T. Galacio said...

1. Please read about the difference between adoption and simulation of birth in the FAQ section of www.familymatters.org.ph

2. For a person to be considered legally adopted, there must have been compliance with the requirements of RA 8552 Domestic Adoption Act 0f 1998 (or prior to this RA, with the Family Code or of the New Civil Code). Simply using the family name without going through the court process does not make a person a legally adopted child.

Human Rights For All said...

Good morning sir: I just left attorney as you indicated we should and he told that if the husband died and no children at all never in marriage and all proporties were born in the marrige that it all went to the spouce and none went to my mother and father. Can you help me find some law that spells out the NCC code for the conjual property.

Thank you

Atty. Gerry T. Galacio said...

1. Please read my article “Questions and answers on inheritance (1): no children and without a last will and testament” dated February 2, 2008 located at http://famli.blogspot.com/2008/02/questions-and-answers-on-inheritance-1.html for the discussion of the applicable laws on your situation.

2. That lawyer you consulted is not familiar with Article 997 of the New Civil Code. Consult another lawyer and ask him or her about Article 997 of the NCC.

3. When a husband or wife dies without any children, then under the NCC rules on intestate succession, the compulsory heirs and their respective shares are in their proper order:

[A] The surviving spouse gets one-half of the estate, and the surviving parents of the deceased also get one-half.

This is provided by Article 997 of the NCC which states, “When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half.”

[B] If the parents are dead, then the surviving spouse gets one-half, and the other half goes to the brothers and sisters, nephews and nieces (representing any deceased sibling of the deceased spouse).

This is provided by Article 1001 of the NCC which states, “Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half.”

Please take note that if the parents are alive (or if only the father or mother is alive, as the case may be), then the brothers and sisters, nephews and nieces will not have a share in the inheritance. This is based on the principle in succession known as “nearer excludes farther.”

Please take note also that the share of the surviving spouse in the community property or in the conjugal partnership property will first be deducted from the estate. The remaining portion after such deduction will then be divided according to the proportions set by Articles 997 and 1001 of the NCC.

Human Rights For All said...

First let me say thank you and this site. I have read over and over what you have said and find that it is very true. The attorney can't be up to speed with the NCC. That is why we need to get one that understands the laws. Thank you again so very much and this site is a blessing from God and you!

Regards

Human Rights For All said...

Sir i really hate to keep bothering you. However we have been told by the attorney that we need to put the wife on notice that we're requesting an inventory of any and all items from my brothers death as of 10-2-07 until now. We have also been told that we need to contact the Barangy captain to advice him of trying to work out the property settlement. The other part is that we have to give his wife a letter, asking that she give us a list of all items. Which we know she will never do at all. Nor will she sign anything that we give her. Can you help guide us here as you stated we need to expidite this before she sells all.

Any case law that you could direct us would be so thankful.

Regards,

Atty. Gerry T. Galacio said...

You have to tell the lawyer the legal services you want him or her to do for you, and he or she will tell you the professional fees (acceptance fee plus agreement on how much the appearance fee is, etc).

Once you retain the services of a lawyer by paying his or her professional fees, the lawyer will handle eveything (drafting the demand letter for inventory, etc).

Anonymous said...

Sir, my father just died recently. I am his only child even though I am illegitimate. Another person who is my fathers nephew and who grew up while staying with him, has stepped in and acted as my fathers executor. He has distributed my fathers belongings, mostly to himself, saying this was my fathers wishes. He says he has letters from my father stating that what he is doing is at my fathers direction, but neither I nor any one else has seen these letters. Is it legal what he's doing? He has given himself the best share of my fathers possesions, mostly the best properties,which are very desirable. For my share he has given me a lot which is much less desirable and valuable. I am questioning the legality of his actions in light of the fact that I am the only legal heir to my fathers estate and he is only a nephew and that I have had no say in what has been done. Please, can you advise me on this matter?
I am living in the US and this is happening in the PI.

Atty. Gerry T. Galacio said...

You should immediately hire a lawyer here in the Philippines to protect your rights and to prevent the dissipation of your late father’s resources.

Since you are living in the US, you can execute there a Special Power of Attorney authorizing someone here in the Philippines whom you trust and who will file the necessary action to protect your rights. The longer you wait and if the properties are being transferred to other parties, the more difficult it will be for you.

You also have the option of hiring the services of a law firm and authorizing it through your SPA to represent you and to file the case in your behalf. You can agree with the law firm on a contingent fee basis of payment. That means, if successful in the case, the law firm will get a certain percentage of the amount or properties involved, without any or only minimum cash out for you. Please go to the website of the Integrated Bar of the Philippines to see the directory of law firms. It is better to hire a law firm rather than a solo practitioner in your situation.

Human Rights For All said...

Sir, can you tell me where to look under the laws here. where it states that a person must do a complete inventory within 60 days of Conjual Property. I thought I had read that but can't seem to find it now. We are trying to prepare this case for a local attorney here in Tacloban.

Regards

Atty. Gerry T. Galacio said...

Articles 102 up to 104 FC describe the procedures for the liquidation of the conjugal property. Article 103 specifically speaks of a period of SIX MONTHS for the judicial or extrajudicial liquidation of the estate.

However, please let me say that it is NOT your job to research the laws applicable to your case. It is the lawyer’s job and responsibility to interview you in order to know the facts, and to research what the applicable laws are.

If that local attorney in Tacloban is asking you to write down the facts of the case and what the applicable laws are, then I suggest that you look for a more competent lawyer.

Human Rights For All said...

Sir let me say God Bless you for this site! We have been now 3 times to the Barangay Chairman as we've been told to. This is suppose to be the way before we file the case in the courts on the conjual property issue. We have been told that the Barangay Chairman must endorse this issue before we can file in the courts. We are so confused about this today was the last day and the Barangay Chairman was not there due to being away, even he knew that we had a very important meeting today. He was not away on emg he was in samar and he has been there 3 days now. Now they say they cant endorse it because he is away and that he will do it when he comes back. Wow what a messed up problem.

God Bless

Atty. Gerry T. Galacio said...

You do NOT need to go through barangay conciliation proceedings.

In order to prevent to dissipation of the estate of your brother, you need to file the case for the judicial settlement of the estate with a prayer asking the court to issue a preliminary injunction or a temporary restraining order against your brother’s wife. If there is no TRO or a preliminary injunction, your brother’s wife will be able to dispose of all the properties of the estate.

Since your petition or complaint in court will be accompanied by a prayer for TRO or preliminary injunction, then that is an exception to the barangay justice law. Meaning, you do not need the endorsement of the barangay in order to file the petition for the settlement of the estate.

All you really need is a demand letter from your lawyer asking your brother’s wife to make an accounting or inventory of the assets of the estate, AND asking for a conciliation meeting. If she refuses or does not answer within ten days, for example, then you can file the case with a prayer for TRO or preliminary injunction in order to bypass barangay proceedings.

Anonymous said...

Sir, Thank you so much for the advise you shed on my problem. I will do hire a lawyer which is my distant Uncle who is also a resident in the province. I will just send you an update on this situation. Again THANK YOU SO MUCH and GOD will bless you more.

Jun Lincod said...

Greeting Atty. Gerry,

First of all I can help notice your comments on most cases that I saw, again sir More power on the help your giving to our countrymen, anyway I have a questions also on child custody and support, last December my wife has left me home bringing along my two kids to mindoro, we really had a very big misunderstading then, eventually after two continueing months of supporting my kids my father in law had asked me for a child support, which he is also doing on my sister in law child, he tries to distroy marriages and asked for financial support, my wife agrees with my father in law stating the child support, my question is in this matter can I ask for a child custody of my childern? (by the way my twins is just two yrs of age), second is can I also ask a visitations rights and also the rights to bring my kids home every two months or so? since I'm already financing them, third what can be my rights to fully attain my child custory of my daugthers since my wife has incapacity to support them and plus the fact she just listen to her father only. Regards and God bless.

Atty. Gerry T. Galacio said...

I already answered your questions in my reply e-mail to you.

Allan said...

Hello,

I hope you can help or point me in the right direction. In brief,
here is my situation:

I am writing to you from the USA and my father (a Filipino living in the USA) had passed away earlier this year. He had owned land in the Philippines with his brother which was left to them by their parents. My uncle told me that I did not have any claim to the land and that my father's share would go back to the family. My father had always told me that we had land there and it would be mine one day, and my I thought this was the case because I of my being his direct decendant and my heritage, also that joint ownership does not over ride succession laws.

My father died without a will, and here in the USA I am in the process of being named the administrator to his estate. I do not know how to proceed in this matter, or even how to find a lawyer here in the USA who understands and can help me with this.

Any help you can provide would be greatly appreciated.

Atty. Gerry T. Galacio said...

The probable reason your uncle is saying that you do not have the right to inherit the land is that you are already an American citizen and in view of the 1987 Constitution prohibition against foreigners owning lands here in the Philippines. However, since your father died intestate, this is an exception that allows you to inherit the land AND have it titled in your name.

In the Philippines, we follow the New Civil Code provisions on compulsory heirs. You are a compulsory heir of your father and you do have the right to inherit from him, meaning if your father had left a will (or died testate), you may not have the right to the land BUT you do have the right to inherit the value of that land.

Upon your appointment as administrator of your father’s estate, you can file the necessary petitions here in the Philippines for the settlement of your father’s estate. Even if you are not appointed as administrator, as your father’s compulsory heir, you can file the necessary legal actions here in the Philippines

My suggestion is for you to retain the services of a lawyer here. One thing the lawyer can do is to have an Affidavit of Adverse Claim annotated on the back of the title of the land. The affidavit signed by you is a notice or warning to third parties that you are claiming the land. If the land has already been transferred by your uncle to another party, the lawyer can file a petition for the cancellation of title, of the Deed of Sale, etc.

If your uncle has not done anything yet with regards the land, then your lawyer can file a petition for the judicial settlement of the estate. Or the lawyer can send a demand letter to your uncle asking for an extrajudicial settlement of the estate (so that no litigation will become necessary).

It is more advisable to retain the services of a law firm instead of a solo practitioner. But if you get law firms from Manila or Makati, the legal fees could be quite high if the land is located outside of Metro Manila.

John said...

Sir I know I saw somewhere on the internet laws about th eobligations a landlord has to tenents here in the Philippines. I can't seem to locate it now I think it was in PDF format and thought I save it. Can you tell me where I might find that on a link? The reason is the landlord has been ask many times to fix a drainage problem as well as raw sewage at the back of the apartment coing from other apartments. Please help if you can we had so much water damage from the drains backing up and coming inside the house.

Atty. Gerry T. Galacio said...

John,

Article 1654, paragraph 2 of the New Civil Code of the Philippines provides for the obligation of the lessor towards the lessee. The said paragraph states, “The lessor is obliged to make on the same during the lease all the necessary repairs in order to keep it suitable for the use to which it has been devoted, unless there is a stipulation to the contrary. I do not have this portion of the NCC in my Family Matters website but you can check it in the Chan Robles website.

Since you are referring to a PDF document, you may also check www.congress.gov.ph (go to the download center for the PDFs). While there, you can also check for any amendments to the Rent Control Law. This law is usually amended every two to three years, the last amendment being in 2005 if I remember correctly.

Anonymous said...

Hi,

I just have a question. Can a wife actually demand, through the court, that her husband have full accounting of their conjugal properties?

Atty. Gerry T. Galacio said...

Please take note that husband and wife are CO-ADMINISTRATORS of the community property (under the system of absolute community of property) as provided for by Article 96, OR of the conjugal partnership property (under the system of conjugal partnership of gains) as provided for by Article 124.

The said articles provide that the wife can resort to judicial help in conflict. You did not indicate the specifics of why the wife is demanding the accounting of the community property or of the conjugal partnership property. As to directly asking the court for an order to compel the husband to render an accounting, it may be a bit premature, There must be a main case (for example, the husband entered into a questionable transaction and then the wife is now seeking the voiding of such transaction). As part of the main case, the wife can ask the court to compel the husband to render an accounting of the properties. OR as the articles below provide, if the wife seeks to administer the community property or conjugal partnership property BY HERSELF, then she can ask the court for such authority and as part of the main case, ask for an accounting.

Art. 96. The administration and enjoyment of the community property 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 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.


Art. 124. 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.

Anonymous said...

Greetings Atty. Gerry.

Thank you for your contribution to this blog. May I present you a few questions which keep a lot of foreigners busy:
1. If a Filipina passes away can the foreigner spouse get full ownership of a titled property by intestate succession and can he also let register his name on the title? Or must he dispose the property within reasonable time? Lot of different opinions are circulating; very confusing.
2. Is it legal when a foreign husband leases a (conjugal) property from his Filipino wife, who's name is on the property title as a sort of protection in case she will pass away.

I am sure that a lot of foreigners in The Philippines would appreciate if you could answer the questions

God bless You!

Anonymous said...

Greetings Atty. Gerry.

I would just like to clarify this thing in my mind. If one of the spouse died but they have legitimate children, will the parents of the deceased spouse still be entitled to the properties?

Atty. Gerry T. Galacio said...

The parents of the deceased spouse do not have a share in the properties as provided for by Article 996 of the New Civil Code of the Philippines.

Art. 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children.

If the spouses did not have any children, then the parents would have been entitled to their share as provided for by Article 997 NCC:

Art. 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half.

Anonymous said...

Hi, Atty. Gerry

I really like this blog because you are helping people to undestand some hard to explain legal matters specially the NCC.

I have a friend who is married but his husband is not really responsible when it comes to money matters. He is overspending his money for his own luxury and not providing for the future of their child. What my friend did is she opened a bank account under the name of her child. She's been depositing her money in this account. I'm just not so sure if this is with the knowledge of his husband. My question is if in case they come to a point of separating, which is very possible, will this account be included from the conjugal property inventory.

Atty. Gerry T. Galacio said...

Children have the right to be supported by their parents and parents are obligated to do so under Articles 194 to 208 of the Family Code. Providing for children through opening a bank account in their name and depositing money into the account is in keeping with that parental obligation.

Based on what you said, however, your friend is using her child’s bank account to hide her assets from the husband. If separation takes place and if the husband can prove that the bank account really contains assets belonging to the community property or of the conjugal partnership, then such can become part of the inventory. How can the husband prove this? Well, for example, if the amount contained in the bank account is above and beyond the needs of the child.

To provide for the child, your friend can instead use other means like pre-need plans, etc.

Anonymous said...

Assuming a married couple has a child but when the spouse was about to die, he left a last will and testament without the knowledge of his wife to give a share of his property to his parents, would this be valid?

When will a last will and testament becomes valid? I'm kind of confused when I sometimes watch movies where the spouse leaves a last will and testament? I thought its understood that when one of the spouse died leaving her wife and children, the properties automatically will be transferred to his wife and children? Why need a last will and testament?

Atty. Gerry T. Galacio said...

1. When person dies without a last will and testament, his properties are inherited and divided among his heirs in what is called “intestate succession.” Here in the Philippines, we follow what is called the system of compulsory heirs. For example,, the mother and her children are the compulsory heirs of the husband. The wife will get 50% of the estate of her husband, and the remaining 50% will go to her children (with the wife counted as one child). For example, let’s assume there are three children. So you get 50% of the estate. The remaining 50% will be divided into four parts (the three children and the wife counted as one child).


If you and your child can agree amicably, then you can divide the properties by simply asking a notary-public to prepare a Deed of Extrajudicial Settlement. If you cannot agree, then you will have to go to court for judicial settlement.

2. When a person prepares a last will and testament, then his estate will be divided in what is called “testate or testamentary succession”. The share in the inheritance is called legitime. In your example, there is only one child. According to the New Civil Code of the Philippines (NCC), the legitime will be ½ for the child and ¼ for you.

The proportion of shares in testate succession (legitime) is different from intestate succession (known as intestate shares). Because of the difference in the proportion, in testate succession, a certain percentage becomes what is known as the “free portion.” The testator (or the person making the last will and testament) is allowed by law to give this free portion to anyone he chooses. In your case, your husband can give something to his parents only out of the free portion. You and your kids must be given the proper legitimes.

If the last will and testament involves real properties owned by the testator, then the will must undergo what is “probate” meaning, the will must be presented and approved by the Regional Trial Court. The probate can be done while the testator is still alive or after he or she dies.

The requirements for a last will and testament are very strict. If the requirements are not complied with, then the will becomes invalid. The estate will then be divided according to the rules of intestate succession.

Please surf to the New Civil Code of the Philippines section of my Family Matters website and read all about SUCCESSION.

Anonymous said...

Dear Atty,
When a husband is not showing up for almost 3 years and doesn't give support to his children as well as to the financial obligation of the family such as monthly payment of the amortization of the mortgage house, what would be remedy to protect the wife for staying in the acquired property? What would be the remedy for abandoned children and wife?

I believe your blog would help a lot of abandoned wife in the Philippines. I think our law in unfair when it comes to separation of properties where the husband doesn't morally and financially contribute for the well being of the family but he is still entitled to his right to the properties acquired during marriage but financially he doesn't contribute. We know very well that if a housing loan is granted , the principal borrower need to pay its obligation even he has no work. In my case, I continue payment of the monthly amortization just to keep a home for my kids. Can yo give me an advise how to protect myself when I shoulder all the family expenses and my ex husband(not legally separated) doesn't support me and my kids anymore?

Please advise .

More power to your website.

Confuse wife

Atty. Gerry T. Galacio said...

Confused wife,

Please read my post titled “Support for abandoned woman and family” (look for the link in the sidebar). Or you can download my free PDF newsletter on this same topic. You can use this link:

http://www.familymatters.org.ph/PDF newsletters/Legal issues and family matters number 004 July 31 2008.pdf

Please also read my posts on RA 9262 (look for the links in the sidebar) and my replies to the various comments. Essentially, through a Protection Order, the court can obligate your husband and his employer to set aside a certain percentage of his salary to be remitted to you and your children directly. If he or his employer fails to do so, either or both can be held in contempt of court.

As I have previously discussed in this blog, at the very least, you should file a petition for judicial separation of property AND also execute a document disinheriting your spouse. Please use the search box at the top of this blog to search for the dscussion on judicial separation of property and disinheriting a spouse. (If you file a petition for legal separation, the issues of separation of property and disinheritance will be taken up by the court.)

Anonymous said...

Dear Atty Gerry,
Thanks for your comment. I really appreciate your kind response.

In relation to your comment,does separation of property issue would be be taken up when I file for a petition for annulment? Would you advise that I will execute first a document for disinheritance while the petition for annulment is on going?I already bought a personal property during the physical separation. what document could support that I bought alone the property and he has no right to own the property since he has no financial support since 2000. Does my Annual Income Tax Return (ITR) is sufficient evidence that I have the ability to support my basic and luxurious needs

Can I ask protection also from the authorities like preventing my ex from visiting when drunk as well as during evenings? I heard a lot of stories that husband kills their wife and kids. I believe my ex has the ability to the same since I experienced physical abuse from him when he was still living in the house. Can I file for financial support and execute disinheritance at the same time?

What would be the best remedy just in case the husband refuses to give his financial support because of some reasons like , he have no work and etc? Does having no work excuses my husband from supporting his kids?


Thanks you very much and more power to your website.

I would appreciate if you could give me your office address so that I can personally visit you.

Confused wife

Atty. Gerry T. Galacio said...

Confused wife,

1. The issues of separation of property, disinheritance, custody of children, etc will be taken up in proceedings involving legal separation, annulment (voidable marriage) and declaration of nullity (void marriage).

2. Even now, you can ask a competent lawyer-notary public to draft the proper document for disinheriting your husband.

3. Under the Family Code, anything acquired during the marriage is presumed to be part of the community property or of the conjugal partnership, except if you can prove that you bought the property with your own resources. If and when you file a petition for legal separation, annulment or declaration of nullity, then you can present proof that your husband did not have any share in the purchase of that property.

4, Please read my articles on RA 9262 (look for the links in the sidebar). In terms of financial support, please read my article “Support for abandoned woman and family.” The problem is if your husband is jobless or has no income whatsoever, the Protection Order will be useless.

5. You can get a Protection Order so that your husband will be ordered by the court to stay away from you and your kids, and to stay away from certain places that you go to. Please read my posts on Protection Orders under RA 9262.

yvescaalimferrer said...

Dear Atty Gerry,
thank you for sharing the information about the absolute community of property, and I would just like to ask you something, and a little favor too... Can you kindly explain to me the Chapter 7 of the Family Code which is Regime of Separation of Property, Articles 143-146... I badly needed help about it, and i need some examples of that provisions, because i can't find any examples in the book of Paras, Sta. Maria, and Diy... Their all good books, but i can't see any examples and explanations about those provisions... I'm a 2nd year student in Manila... thank you... i would really appreciate if you could answer my question, and do the favor I'm asking po... thanks again...

P.S and if you have time to spare, can you please email me here... yves4sevy@yahoo.com

thank you very much :)

Anonymous said...

Good day Atty!
I'm a first year law sutdent from Cebu City, and in relation to a position paper I am supposed to submit for the finals, I would to ask about your views in which property regime should govern between spouses in the absence of marriage settlement. I am sure to cite you as an "authority" in this area. I have already a stand in mind, but my idea in presenting my assertions is to present first opinions of experts in this field.
I hope you would grant my humble request.
Thank you.

Atty. Gerry T. Galacio said...

Please read my April 17, 2008 post entitled “If it aint broke, don’t fix it! From conjugal partnership of gains to absolute community of property back to conjugal partnership of gains?

Anonymous said...

Good day Atty Galacio.

We need your help. Would like to know what we can do. Our father passed away last April 1, 2006 due to cancer. 2 months later, we got the surprise of life when our mother sold the family car without our knowledge. Aside from that, we found out that she was having an affair since February 2006. Anyway, the car was really valuable for my dad and he specifically told us when he was alive not to sell it. It is to our understanding that we also have equal right with regards to the property (car). We are 3 siblings and not one of us signed or waived our right in order for her to sell it. She just came home one day without the car. We would like to take legal action. Please advise us as to what would be our basis for our complaint against her. Sir, your advise is highly appreciated. Thank you.

Kind regards,
Jaz/Reil/Shawn

Atty. Gerry T. Galacio said...

Jaz/Reil/Shawn,

You and your siblings should immediately retain the services of a lawyer to protect your rights to your share in your father’s estate. The law requires that within 30 days from the death of your father, a notice of death should have been filed with the BIR.

Your father’s heirs (your mother, you and your siblings) also should have paid for the estate tax or 20% of the total value of your father’s property, subject to certain deductions (like expenses for last hospitalization, burial, etc). If you do not this, penalties will be imposed on you.

Since your mother does not seem to want to settle with you, you will be forced to file what is called judicial settlement of estate, meaning that you have to file a petition in court for the settlement of your father’s estate. Please take note that under the Family Code, a case among members of the same family will be dismissed by the judge if there are no prior serious efforts to compromise or settle the case amicably. The lawyer you will retain can help you work this out.

Please take note that under the rules on succession (look for them in the New Civil Code section of www.familymatters.org.ph), your mother gets one-half of your father’s estate as her share. Then the remaining fifty percent will be divided among you and your siblings AND with your mother counted as one sibling.

Chibi said...

Hi..

i have a friend who;s been married for 6 years but her husband left her for another woman, abandoning her and her 2 children. i would like to inquire if its possible for her to file a legal separation against her husband and what other crimes will her husband be penalized? and i would like to inquire for a ballpark figure on how much a legal separation would cost.

please send me an email: j.haguisan@harvestseo.com

i am hoping for a favorable response.

thanks

Justin

Atty. Gerry T. Galacio said...

Chibi or Justin,

1. I am sorry I cannot answer you through the e-mail address you gave.

2. Please read the FAQ of my website www.familymatters.org.ph for you to know what the differences are among legal separation, annulment of voidable marriages and declaration of nullity of marriage. In Metro Manila, most lawyers charge a professional fee of fifty thousand pesos with appearance fee per hearing, and with all legal costs and expenses for the account of the client. For annulment or declaration of nullity, the costs are much higher.

3. As for the grounds, please read my primer on legal separation also in this blog (look for the link in the sidebar).

4. As to the cases your friend can file against her husband, please read my post “Adultery, concubinage and psychological violence” in this blog (look for the link in the sidebar).

Anonymous said...

Dear Atty Gerry,
Is it really necessary to invoke art. 130 of the new family code? When is liquidation really a "liquidation"? my stepfather thinks that when my father died, my mother did not have to liquidate the conjugal property since they(my mom and dad)had NO loans to be paid. Liquidation is for loans only. Is he correct?

Atty. Gerry T. Galacio said...

Your stepfather is wrong. Article 130 speaks of PROPERTY and not loans. In case there are no debts, the conjugal partnership of gains (CPG) may be liquidated either by (1) judicially by a case for partition under Rule 69 of the Rules of Court; or (2) by extra-judicial settlement by agreement of the heirs under Rule 74 of the Rules of Court.

Simply stated, your stepdad cannot prevent you from obtaining that which rightfully and legally belongs to you as your share in your mother’s estate.

Anonymous said...

Dear Atty Gerry,
This is a follow up question with regards to Art. 130 of the new family code.
What if Art. 130 was not followed? We(the kids) did not pursue it at that time out of respect to my mother. Now that my mother is also dead, How much is the share of my stepdad? Take note that Art. 130 was not followed.. Thank you.

Atty. Gerry T. Galacio said...

You should as of now retain the services of a lawyer who will protect your rights and work on your case immediately.

If you read my other posts, comments and replies, you will know that a notice of death must be filed with the BIR within 30 days from death of your mother, the estate taxes must be paid otherwise penalties will accrue, etc.

Anonymous said...

Hi,

I have a friend who's been annulled for four years. Now he's ex-wife is asking financial support for their 2 kids legally.
He does support his children. He is just so worried that the girl is asking for a big amount of money for a monthly support.
What should my friend do?

Many thanks.

Anonymous said...

I would like to ask...
My mother died in 1995 leaving my father, me and my 3 siblings. My father subsequently married in 2002. In 2009 my father died. We are now claiming my father's terminal leave in the office where he worked for 9 years. The lawyer of the office said that the terminal leave is the conjugal property of my father and his 2nd wife pursuant to Chanliongco case decided by the SC on October 1977. My siblings and I are invoking Article 103 of the Family Code since when my mother passed away my father did not liquidate our properties, hence the property relations that should govern his subsequent marriage is complete separation of property. Therefore, the terminal leave is the separate property of my father. We need your advice because we do not want the terminal leave and other properties be governed by conjugal partnership. Please reply ASAP. Thanks

Anonymous said...

Hi Atty.,

I am hoping you can give me some insights about the situation of my sister. She has been married for 10 years with 4 wonderful kids. Last year, her husband left her and the kids because he said he needed time alone. My sister agreed to her husband's request as she was promised that everything will be okay when he is able to do his soul searching. After a month, she found out that her husband has a girlfriend. She was able to collect pictures of them together in the internet. The husband did confirm that he had a relationship with another girl but said that he already broke up with her because the other girl found out that he was married. Now after a year, her husband has not come home to them and my sister believes that he is still seeing the same girl and is now living together. My sister only receives P7,000 as a monthly allowance for their 4 kids which is not really enough considering that 3 are already in school and the youngest is just 2 years old. The husband earns about P50,000 a month. My sister now wants to file for legal separation so she can get the right and just support for her family and also she can't entertain the fact that her husband is still telling her lies and living with another girl for some time now. My sister is also concerned about the custody of the kids. What is the first thing she needs to do in filing for Legal Separation? What is the procedure? Does she need to hire a lawyer? Can you give us a rough estimate on how much would be the cost for filing fee or the whole processing fee? Thank you so much for your time. I really hope you can share with us some information. Looking forward to hearing from you soon.

Atty. Gerry T. Galacio said...

With regards support, please read my post “Support for abandoned woman and family” (look for the link in the sidebar). Essentially, through a Protection Order, the court will order your sister’s husband and his employer to set aside a certain percentage of his salary to be remitted directly to your sister and her kids on a monthly basis. If the husband and/or the employer refuse, they can be charged with contempt of court.

The amount of support is balanced by the court between the necessities of the person asking for support and the financial capability of the person from whom support is being asked.
A petition for Protection Order can be filed and granted even if your sister does not file a petition for legal separation, annulment or declaration of nullity. Your sister also has the option of filing against her husband (1) a civil case for damages; and/or (2) criminal case under RA 9262.

If your sister is not working, a petition for Protection Order can be filed without paying the filing fees by executing an Affidavit of Indigency. If your sister is working or has properties, she can retain the services of a private lawyer. Professional fees of lawyers vary from lawyer to lawyer, but you can find lawyers who will agree to being paid only a per hearing or per pleading basis.

Atty. Gerry T. Galacio said...

You are correct that since your father did not liquidate the ACP or CPG between him and your mother, complete separation of property governed his relations with the second wife.

You can ask for assistance from the PACU (Public Assistance and Complaints Unit) of the DOLE in Intramuros, near Pamantasan ng Lungsod ng Maynila and the Bulletin office, tel. no. 527-8000.

Anonymous said...

Dear Atty.,
Do we have protection for the children with regards to inheritance? My mother passed away 6 yrs. ago and my father waived his rights/interest in our main house(declaring that it's an ancestral home previously owned by his parents and he's just returning it to his siblings, it's a big lie since we invested a lot in our main house, out of anger he did waived his rights) and his share of his parent's estate to his siblings leaving us nothing except the properties left by our mother which he's now asking us to liquidate to get his share. thanks & regards

Atty. Gerry T. Galacio said...

Is the main house titled in the name of your father? Your father and mother? Or is titled in the name of your father’s parents? Did your father’s parents (if the title is in their names) inherit this house or simply a portion of it? If your father inherited the house or simply a portion, then such inheritance is not part of the ACP or of the CPG. But you can probably ask for reimbursement of whatever your mother contributed in maintaining or improving the house.

Please read Articles 1041 to 1045 of the New Civil Code of the Philippines on the topic of “Acceptance and Repudiation of the Inheritance.” Your father has the right to repudiate, renounce or waive his portion of the inheritance from his parents.

You should retain the services of a lawyer to help you in this situation.

Anonymous said...

I am a US Citizen married to a Filipino in the Philippines in 1989 and got divorced in 1995. I acquired a piece of property before I got married(1984) and started developments after I got divorced(1997). This is a non-conjugal property.
My question is if I die, what will happen to this property. Is he entitled to this property?

Anonymous said...

Good Day Sir,
My girlfriend and I, have almost 4 years in a relationship. And having a plan to get married but we have a big problem she is my adopted first cousin, my father and her known to be mother is blood related brother and sister. But the truth is she’s my second cousin or six degree blood relation,. “Why we still continue the relationship” some of our aunts, uncles and 1st cousin already know our relationship. Second I’m reading the family code of the Philippines from Chapter 4, TILLE VII Article 188 The written consent of the following to the adoption shall be necessary: I’m found out that known to be mother have no written consent that she will be adopted, and from her birth certificate her known to be mother have registered her from a new birth certificate and change her full name following the known to be adopters surname,, But when I’m looking at the back of the live birth certificate that she have I notice that there’s a column If adopted child there’s question to be answer but the question is blank. We already have found his true parents, and our relationship is all right from them. And her old birth certificate from her true parents is in our keeping.

Please advise us for want we will do? IF we want to continue our relationship or we stop.

Atty. Gerry T. Galacio said...

When you got married in 1989, the Family Code was already in effect. The FC provides that if there are no marriage settlements at the time of the marriage, then absolute community of property will be the system of property relations between the spouses. Under the ACP, everything the spouses bring into the marriage will become community property. This will include the property you acquired in 1984.

Did you and your husband have any pre-nuptial agreement? If none, then ACP is the rule for you.

I will assume that you got your divorce in 1995 when you were already a US citizen. What did the divorce decree say as to the division and distribution of your properties?

As a US citizen, your national law (more specifically, the law of the state where you are a legal resident) will govern as to who your heirs are.

You should personally consult a lawyer and show him/her that divorce decree and other documents like the title of that property, etc.

Atty. Gerry T. Galacio said...

1. The provisions of the Family Code on adoption have already been repealed by RA 8552 Domestic Adoption Act of 1998. Please read “Procedures in adoption under RA 8552” (look for the link in the sidebar).

2. The way I understand your story, there really was no adoption at all. It seems that instead there was simulation of birth which is a criminal act (changing the entries or falsifying a birth certificate). If there was really an adoption, you should look at the decision of the court which granted the decree of adoption. What court handled the petition for adoption?

3. The Family Code prohibits by reasons of public policy marriages between first cousins. Beyond first cousins, there is no longer any prohibition legally. The problem however is the attitude of Filipino society regards relationships between relatives.

Anonymous said...

Good morning,
To Atty. Galacio

May I kindly request want are the step to pursue our marriages in legal way and her known to be mother is also my aunty will not be penalize in accordance under RA 8552.

Atty. Gerry T. Galacio said...

RA 8552 provided for a grace period of five years from 1998 (when the law became effective) for persons who resorted to “simulation of birth” to rectify the situation. That grace period ended in 2003.

However, there is a pending bill in the Senate that seeks to extend the grace period to 2013, I think. If and when the bill is passed into law, then you can rectify the simulated birth.

Anonymous said...

Good day! My father inherited properties from his parents during his marriage to my mom. My mom claims that those are considered conjugal because the titles have my dad's name with a married to (her name). Can you enlighten me on this...How do you divide these properties with their children? Thanks. (they were married in the 60s)

Atty. Gerry T. Galacio said...

The phrase “married to” in the land titles is merely descriptive of the status of registered owner and does not necessarily imply co-ownership.

When your parents were married in the 1960’s, the prevailing law was the New Civil Code of the Philippines, not the Family Code. Under the NCC, the default system of property relations was conjugal partnership of gains (under the Family Code, it is absolute community of property).

Anyway, to make a long discussion short and to the point, when your father died, his conjugal partnership with your mother must be dissolved and liquidated, not under the provisions of the NCC but under Article 105 of the Family Code (please read 2nd paragraph of that Article).

If the lands were inherited by your father, these do not form part of the conjugal partnership and will not be included in the determination of your mother’s share. HOWEVER, these land form part of the estate of your father which must be divided among his compulsory heirs (your mother, you and other siblings, if any).

Making it more simple, here are the steps:

[1] Your parents’ conjugal partnership will be liquidated as I said under the Family Code (even though they got married in the 1960’s under the NCC). The lands inherited by your father will not be part of the conjugal partnership property.

[2] After your mother’s share in the conjugal partnership properties have been determined and given to her, what remains will be the estate of your father. Your father’s estate includes the lands he inherited.

[3] Your father’s estate (including the lands he inherited) must be divided among his compulsory heirs, that is, among your mother, you and your siblings.

{4] The division of your father’s estate can be done through a judicial settlement (a petition will be filed in court if the heirs cannot agree on the division). OR if the heirs can agree on the division, you and the other heirs can just ask a notary-public to prepare a Deed of Extrajudicial Settlement.

The NCC provides that the estate must be divided among the number of children with the surviving spouse counted as one child.

Please read my March 19, 2009 post “Article 176 of the Family Code: computing the legitimes of legitimate and illegitimate children; an illegitimate child gets one-half” to get an idea of how the estate is divided.

reynaldo said...

my father died 2 decades ago and we have not filed either extrajudicial or judicial settlement of his estate. Now, we have felt a need to file judicial settlement of his estate. Can we do it now? is there no legal impediment/s to its filing 2 decades after my father's death?

Atty. Gerry T. Galacio said...

Reynaldo,

If there are real properties titled in your father’s name, then you should really settle his estate, either judicially or extra-judicially. The “impediment” would be you have to pay to the BIR the penalties for the last 20 years.

Anonymous said...

good day sir... i just want to ask some questions regarding the property between a husband and a wife...

the wife is looking for a legal advise and opinion...

the husband have a mistress which he donated their land property to the mistress. the two properties were inherited. (acquired before marriage and acquired after marriage). then follwed by another land property which the husband and the wife acquired during their marruage by purchase. the husband gave this 3rd land by deed of sale to his mistress. the date of the marriage of the husband and the wife is feb. 14, 2005... then the wife wants wants to know on how she can bring those property back and what the wife should do.

i need the facts of the case, the issue to be resolved and opinion... i also need the certain laws the wife will be needing and some cases to prove the it.

Anonymous said...

a follow up from my question sir... the property of the husband and the wife as stated above, it is unknown if they are conjugal conjugal, absolute, etc...

Atty. Gerry T. Galacio said...

If the husband and wife did not agree on what system of property relations would govern them before they got married, then AUTOMATICALLY the system of absolute community of property (ACP) will be the system upon marriage.

The land acquired before marriage by inheritance became part of the ACP upon marriage.

The two pieces of land acquired during the marriage are also part of the ACP.

The sale of the land by the husband to the mistress is not valid if it did not have the consent of the wife. The wife can file:

(1) a petition to declare the sale null and void and have the title issued to the mistress cancelled;

(2) civil and criminal cases under RA 9262 “Anti-Violence Against Women and Their Children Act of 2004” against the husband; for example, economic abuse with a penalty of four years imprisonment or psychological violence with a penalty of six years imprisonment minimum up to twelve years maximum.

The wife should immediately retain the services of a lawyer to file these cases against the husband.

Anonymous said...

Good day again!I am impressed on how you answer the questions about family laws, I hope you can help me with a situation like this:

I am married, my husband have an exclusive property in Mandaluyong City. He had an affair with a woman named Liza. His property in Mandaluyong was transferred to Liza through deed of donation, as far as I know according to Article 739 of NCC, the donations made between persons who were guilty of adultery or concubinage at the time of the donation was void. Now that I know that the transferred of the said property is invalid or void, DO I HAVE THE RIGHT TO QUESTION THE TRNSFERRING OF MY HUSBAND'S EXCLUSIVE PROPERTY, eventhough it is not a part of absolute community? If yes, can you give atleast 2 jurisprudence that can support it?

Thank you! Actually I already asked it to you in your article, adultery...

Again, thank you so much!

Atty. Gerry T. Galacio said...

Your question sounds very similar to that asked by a Legal Management student a few days ago concerning a Legal Research class assignment. Your request for two jurisprudence (court decisions) also suggests that the situation you described is not real but only a class assignment.

ANYWAY, you should read Article 739 NCC again; it says, the donation can be invalidated once the donor and donee if have been found to be guilty of adultery or concubinage. This means that a criminal complaint must first be filed with the fiscal’s office, the case must be filed in court, and there must be a decision finding the parties guilty of adultery or concubinage.

Under the system of absolute community of property (ACP), any property acquired by inheritance is excluded from the community property. It is not accurate to say therefore that “you have rights to the property.” Any such right is merely inchoate or contingent, meaning, you can only have rights to that inherited land upon your husband’s death.

Your husband has a mistress to whom the inherited land was donated. First of all, Article 148 of the Family Code will govern property relations between your husband and the mistress. The said article states:

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.

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 shall be forfeited in the manner provided in the last paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

Please take note of the 2nd paragraph which says “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.” The last paragraph of Article 147 provides the way the donated land can be forfeited in favor of the ACP between X and Y. That paragraph says:

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.

An indirect way of pressuring your husband (to return the land, and if not, at least its monetary value) is for you to file cases under RA 9262 “Anti-Violence Against Women and Their Children Act of 2004”. Please read my RA 9262 posts (look for the links in the sidebar).

Maritess said...

Dear Atty Galacio,

Would like to seek advice about having to file and injunction seeking my son-in-law to be evicted from my house which he cohabits now with my daughter and her kids.

I only want the son-in-law to be evicted from my house but not my daughter and the kids, how do I do this. Barangay has no solution to my request. I need my daughter's husband to be removed and stay away from my house permanently as he has cut trees which grows in my yard without permission, sell items belonging to me, like softdrinks bottles from my former mini store business and other personal trespasses to me.

Thank you very much and God Bless.


Best Regards,
Toribia (67 yrs old)

Atty. Gerry T. Galacio said...

Toribia,

To remove or evict your son-in-law from your house, you need to file what is called an “ejectment suit” (either forcible entry or unlawful detainer). However, your daughter and her children will be affected by this case.

You have the option of filing a civil case for damages against your son-in-law, OR criminal cases like malicious mischief (destruction of private property) for his cutting of trees without your permission, or theft for disposing of the bottles from your mini store. Maybe if you file these case, your son-in-law will learn to respect you and your rights over your property.

Atty. Gerry T. Galacio said...

Tobias,

I deleted your post to protect the privacy of the party you are dealing with. But below is my answer to your inquiry.

The Register of Deeds will require you to present a Deed of Sale once you try to transfer the Condominium Certificate of Title to your name. Since the CCT is registered in the names of the husband and the late wife, the RD will ask for a Deed of Sale signed by both registered owners. The husband cannot sell the property by himself (unless of course if he forges the wife’s signature).

If the RD comes to know that the wife is already dead, then it will ask for an extrajudicial settlement of estate. When the wife died, her estate must be divided among her heirs (the husband and the three children). The husband cannot say therefore that he can sell the condo since it is part of the estate that belongs to him. As of now, the shares of the heirs in the estate are pro indiviso (meaning with no specific designation).

To protect yourself therefore, you need to ask the man go through the extrajudicial settlement of his wife’s estate. After the EJS, the man needs to pay the estate tax with the BIR. The BIR will then issue a CAR (Certificate Authorizing Registration). This CAR must be presented to the RD when you transfer the CCT to your name.

Anonymous said...

what if the husband and wife agreed on a different kind of property settlement whilst actually still legally married (such as a binding financial agreement)in relation to property dispersal in case they ever were to become legally separated. Could this have the same power as ae a pre-nuptual agreement and and be just as legally binding?. Thank you

Atty. Gerry T. Galacio said...

This is not allowed. Please take note of Article 76 of the Family Code:

Art. 76. In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage, subject to the provisions of Articles 66, 67 (reconciliation after a petition for legal separation has been granted), 128 (as approved by the court after abandonment by one spouse), 135 and 136 (judicial separation of property).

Please take note that (1) any modification must be made BEFORE the marriage; and (2) the exceptions provided by Article 76 do not cover the situation you describe.

Anonymous said...

Atty Gerry, I need your brilliant advice. You see, we have purchased a property from a common law husband and wife. But when we were trying to process the transfer of title, we were informed by RD that someone sent a letter from Canada claiming to be the owner of the land and I presume she claims to be the former live-in partner of the owner and that she did not authorize the sale. I am so worried because as far as we know, the property was sold with consent and that the common law wife appeared before us with her Community Tax Certificate while we made the payment and signed all the necessary documents for the transfer. Could that letter possibly be considered an adverse claim to the property even if it wasn't notarized and it was simply a claim of identity of being the owner without any other legal proof? We have prepared though an Affidavit of Confirmation of Sale with Lot Identity to further attest the truthfulness of the said transaction. Will it be sufficient for the title to be transferred free from the prior claim? Thanx in advance for your help!

Atty. Gerry T. Galacio said...

1. An adverse claim needs to be annotated on the back of the title on file with the RD. The RD also requires the surrender of the owner’s copy so that the annotation on it can be made.

However, the claimant only has 30 days from the time the adverse claim is annotated to file the necessary action in court. If this 30-day period lapses without the filing of a case in court, the adverse claim becomes moot or of no effect. The registered owner then needs to file a petition in court for the removal of the adverse claim annotated on the title, together with a claim for damages against the adverse claimant.

2. Please read my post on “Republic Act No. 9485 Anti-Red Tape Act of 2007”. Once you have complied with all the requirements for the transfer of the title to you, the RD has only five days (simple transactions) or ten days (complex transactions) to act. If the RD denies your request for the transfer of the title, RA 9485 requires that the name of the official denying your request be indicated. This is for the purpose of filing whatever administrative complaint may be necessary.

bong said...

Dear Atty. Galacio:

My father died 3 years ago without his estate being settled. last year, my siblings and i discovered that our sister was able to convince (perhaps fraudulently) our mother to transfer to her almost all of our parents properties by way donation. a friend who'd been to a law school told me that such donations are void because under article 130 of the family code once a person dies his or her spouse must liquidate the conjugal property otherwise any disposition of such properties shall be void and without effect. is this correct atty? can we cancel the titles of the properties which are already in the name of our sister based on the said article of the family code?

Thank you and more power!

Atty. Gerry T. Galacio said...

Bong,

At the moment your father died, all the compulsory heirs (your mother, you and your siblings, etc) became co-owners of your father’s estate. Your mother could not legally transfer these properties by way of donation or sale without the concurrence or approval of the other heirs. You can file a petition for the judicial settlement of your father’s estate AND for the revocation or cancellation of the donation and the land titles.

Anonymous said...

good day sir,

my compliments on this blog. it has been very informative and helpful to many.

i hope that you can help with my question below.

Given a situation where a husband and wife have been married for 4 years, they have 1 child, and they did not sign a prenuptial agreement. most of the assets and businesses of this marriage belongs to the wife, and ownership of these assets/businesses are in the wife's name. many of these assets/companies were acquired/established by the wife prior to the marriage. the wife also inherited assets from her parents after the marriage.

by law, what will happen in the event of the husband's death?

1. will the husband's pre-marriage family (parents and siblings) be entitled to a portion of the wife's properties (even if they really belong to the wife and are still in the wife's name) since there was no prenuptial agreement?

2- will the husband's pre-marriage family (parents and siblings) be entitled to the husband's own assets in his name?

thank you and more power...

Atty. Gerry T. Galacio said...

I already answered your e-mail.