Monday, September 03, 2007

Primer on the Family Code of the Philippines: Absolute community of property

Articles 88 up to 104 are the governing laws on the system of property relations between spouses known as ACP or absolute community of property. Under this system, the husband and wife become the co-owners of all the properties they bring into the marriage and those they acquire during the marriage, subject to exceptions under Art. 92. The committee which crafted the Family Code believed that this system was in keeping with the accepted practice of Filipino families of the husband and wife treating each other as co-owners of the properties acquired before and during marriage.

When does the ACP start?

The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. (Art. 88)

Can there be a waiver of the rights, shares and effects of the ACP?

No waiver of rights, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property.

When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the amount sufficient to cover the amount of their credits. (Art. 89)

What constitutes community property?

Unless otherwise provided in this Chapter 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. (Art. 91)

What are excluded from the community property?

(1) Property acquired during the marriage by gratuitous title 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. (Art.92)

What is the presumption regarding property acquired during the marriage?

Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom. (Art. 93)

What shall the ACP be liable for?

Art. 94 provides that 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 this 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 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 paragraph (7) of this Article, 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.

What about losses or winnings in games of chance like sweepstakes or the lotto?

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. (Art. 95)

Who has the right to the administration and enjoyment of the community property?

Art. 96 provides that 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.

Can the husband or wife dispose of his or her share in the community property?

Either spouse may dispose by will of his or her interest in the community property. (Art. 97)

Can either spouse make donations out of the community property?

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. (Art. 98)

How is the absolute community dissolved?

Art. 99 provides that the absolute community terminates:

(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 under Articles 134 to 138.

What happens to the absolute community if the spouses are separated?

Art. 100 provides that the separation in fact 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.

What are the remedies of an abandoned spouse with regards the community property?

Art. 101 provides that if a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, 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.

The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations.

When is a spouse deemed to have abandoned the other?

A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

What is the procedure in the liquidation of the absolute community assets and liabilities?

Art. 102 provides that upon dissolution of the absolute community regime, the following procedure shall apply:

(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.

(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 this 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. (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 is no such majority, the court shall decide, taking into consideration the best interests of said children.

What is the procedure in the liquidation of the community property upon the death of a spouse?

Art. 103 provides that 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. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

29 comments :

Unwitting said...

Thank you for the helpful legal updates you post on your site. I have a question regarding separation of property involving non-married & non-engaged couples.

I had a long-time friend who eventually courted me and showered me with presents. Some of the items were things I planned to buy for myself and which I actually had a budget for, but he insisted on paying for himself. Many of them were inexpensive (like wall decorations for my home, etc) and so I accepted the gifts gladly. In time, I got used to the gesture and accepted more expensive presents (like a gym membership).

Frankly, I enjoyed the attention and the pampering. However, I could not shake off the suspicion that he was insincere, and so our closeness never developed into an engagement or anything like that.

Inevitably things turned sour, and when it became clear that we would not end up together, he wanted all his gifts back. He claimed that courtship gifts should be returned. Since the objects had lost their value to me anyway, I returned everything that was returnable - (save for a laptop which I'm holding until he returns all the things he has received from me.) Interestingly, he did not return a single thing I had given him, and seemed reluctant to do so.

He also admitted that I was not the only girl he was courting in the same extravagant manner. He likened himself to a personnel manager sifting through applicants. There were other girls that he was considering as wife material, and I guess the expensive gifts were investments or marketing expenses.

I was a wife-applicant and didn't even know I was applying for the position. Needless to say, I was glad to be rid of him and his "gifts".

My question has something to do with expensive presents that are not returnable, like the gym membership. He wants me to give him back his money. I don't want to, because I never asked him to buy them for me. He insisted and I gratefully accepted. Under the law, am I obligated to pay him?

Thank you. I look forward to your advice.

Atty. Gerry T. Galacio said...

From the facts you have stated, there was no engagement, no wedding plans whatsoever. That means that Articles 82 up to 87 of the Family Code do not apply in your case. These provisions of the FC cover what is known as donations (gifts in layman's terms) by reason of marriage.

Art. 82 states that “Donations by reason of marriage are those which are made BEFORE its celebration, in consideration of the same, and in favor of one or both of the future spouses.”

If these gifts given to you were in view of an engagement and wedding plans, then Article 86 (revocation and return of the donations) would apply. But as you said, there were no such engagement or wedding plans, so there is no legal obligation to return what are gifts to you.

The guy could possibly resort to Articles 19 to 22 of the New Civil Code of the Philippines (you can find these in the NCC section of my Family Matters website). Article 22 of the NCC states for example that “Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.” This is what lawyers call as solutio indebiti or unjust enrichment.

HOWEVER, I doubt very much if he will succeed in court OR if he even would like to appear in the first place as a complete jerk by going to court over this matter, no matter how expensive the gifts may have been.

If he persists in bothering, you can make use of RA 9262 Anti-Violence Against Women and their Children Act of 2006. (There are links to my articles on RA 9262 in the FAQ section of my Family Matters website.) You can charge him for psychological violence. RA 9262 applies even to those in a dating relationship. The law uses the phrase “romantically involved over time and on a continuing basis during the course of the relationship”. The penalty for psychological violence is six years minimum up to twelve years maximum imprisonment.

Unwitting said...

This puts my mind at ease. Thank you very much, Atty. Galacio.

Anonymous said...

Dear Atty Galacio,

I am writing in behalf of my brother and would appreciate it very much if you can shed some light to my queries.

My brother (A) is abroad and his wife (B) and two kids are left in the Philippines. A and B have been married for 8 years. On the fourth year of marriage, A and B went abroad to work and have been earning well. After less than 2 years, B went back to the Philippines to take care of the kids. In all the years of their marriage, even when A wasn’t working abroad yet and was earning little, A and B (at least in the 2 years that she’s worked) have been financially supporting B’s family on a monthly basis. Not only that, A also helped the brother-in-law apply for a job abroad which cost him P200K. Unfortunately, nothing happened to the job application because the brother in law got someone pregnant. However, on the 8th year of their marriage, they had financial problems and soon they were having marital problems as well. Due to this financial problem, A asked B to stop the support being given to her family. He’s also asked B to, of course, cut back on expenses, which B all took negatively. Soon B was asking A for a separation saying that she’s moving out of their house and that she’s going to take the kids away. Her reason was that she’s fed up with the nagging of A about how much he’s helped her family financially. Not long after, there were rumours going on about B and another male neighbour. A found out about the rumour, did some investigations and was convinced that B is really having an affair (which B denies vehemently). Because of this, A asked B to leave their house which B did. But when B left the house, she took all the furniture and appliances with her. Amidst all these, my brother is still currently abroad and cannot go back to the Philippines yet due to financial constraints. The following are my queries:

1. The lot is given as a donation by my mother to my brother, thus, the property deed says “Property of Mr A, married to Mrs A” while the house deed says “Property of spouses Mr & Mrs A”. Will the lot be considered as conjugal property? If not, will my sister in-law have any right to the lot if it is sold considering the house is their conjugal property?

2. When my sister in law left their conjugal dwelling, is this considered abandonment? I know my brother asked her to leave but she has been threatening to leave the house months before my brother found out about her affair.

3. Does my sister in law have a right to take all the furniture and appliances with her?

4. Can my brother ask his wife’s family to pay back all the financial support given to them over the years and also the P200K that he spent for the brother-in-law’s job application?

5. While my brother was abroad, my sister-in-law had an extension credit card (under my brother’s name) and another credit card under my sister in law’s name (which my brother didn’t know about). Just recently, my brother found out that my sister in law had accumulated about P200K credit card debts. Is my brother obligated to pay for all of these?

Thank you in advance Atty. Galacio. I will be waiting for a reply from you.

Atty. Gerry T. Galacio said...

1. You did not state whether your brother and his wife got married before 1988 (the year the Family Code became effective) or before 1988 when the New Civil Code was the prevailing law.

I will assume that A and B got married after 1988. Under the FC, if the spouses did not agree on any kind of marriage settlement, then their property relations are governed automatically by the regime of absolute community. Under the ACP, all properties of the spouses before the marriage become part of the community property upon marriage.

Was the donation you mentioned from your mother to your brother made before the marriage OR during the marriage? If the donation was made before the marriage, that land is considered as part of the community property. If however, the donation was made during the marriage, then it is excluded from the community property as provided for by Article 92 FC. As a rule, if the title states as the registered owner, “Mr. A, married to B” the property belongs only to A since the phrase “married to” is merely descriptive.

If ever the house and lot of course are sold, then the monetary value of the land should belong to your brother.

2. Article 101 of the FC explains what abandonment is: A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling. Article 101 is repeated in Article 128 of the FC.

3. The FC provides for the means of dividing up the properties between the husband and wife, properties including the furniture and appliances. What your brother should do at the very least is to file for a judicial separation of property under Articles 134 to 142 of the FC. In this way, your brother is protected from being run after by his wife’s creditors.

Please take note of Article 94 FC which states that the community property can be held liable for the debts or obligations (like the 200K credit card debts of the wife). The pertinent portions of Article 94 state that the absolute community of property shall be liable for:

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. If your brother can prove that the money given to the wife’s family and the brother-in-law are really loans which were meant to be paid back (even without interest), then he can demand that he (or the community property) be reimbursed. However, he has to provide the appropriate evidence to prove that they were really loans. Please take note that under the Statute of Frauds of the New Civil Code, any contract involving a sum beyond 500 pesos must be in writing.

Anonymous said...

Thank you for taking time to answer my questions, Atty. Very much appreciated. :)

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Atty. Gerry T. Galacio said...

To www.taxnegotiators.com/ and Mr. Adams:

I do not appreciate your use of my blog for advertising your services. If I had wanted ads for this blog, I would have availed of Google’s Adsense. This blog is a public service (pro bono) for people with legal problems, specifically on laws relating to the Filipino family. I have not activated the blog setting for moderation of comments so that people in need of legal information can easily reach me. But I will be forced to do so if other people follow your example.

Anonymous said...

if my husband established a joint account with his mother or brother, would i have the right to withdraw or liquidate any amount from this account?considering that the amount to be liquidated will be accounts payable to our business (which named him as the sole propreitor)?

Atty. Gerry T. Galacio said...

Even if the amount contributed by your husband to the joint account belongs to your community property or conjugal partnership, the practical problem is that the bank will allow only the authorized parties (your husband and his mother or brother) to make withdrawals from the account.

Whether you and your husband are covered by the provisions on absolute community of property, OR of conjugal partnership of gains, the rules are the same when there is conflict between the husband and the wife. Article 96 (ACP) is repeated verbatim in Article 124 (CPG):

“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.”

Anonymous said...

My sister was married on Dec.6, 1993 in a church wedding and lived in a house & lot provided by her husband which now become their conjugal home. After some months of the wedding the husband became idle and left work. My sister worked overseas to improve the conjugal house and through her income was able to build a building for rent next to the conjugal home. The income of the building should be enough for their livelihood should she come home for life. Year 1995 she had total hysterictomy and never had a child because of the operation. Year 2002, her husband became unfaithful and seered a child from another woman, then a second child with the same woman in 2004. During a confrontation her husband denied everything until my sister received a death threat from the other woman. My sister brought the case to the barangay where his husband denied again that he is having an illicit relationship. The other woman kept festering my sister so that one day she confronted her husband to sell the house and lot or the conjugal home. The husband agreed to give the conjugal home to her but not the building next to the conjugal home which my sister built through her overseas income. The entire property was covered by a transfer certificate of title dated February 21, 2002 under his husband's name with civil status stated as single. What is the remedy of my sister as the lawful wife to the transfer certificate of title by a philandering husband who declared himself single at the time the marriage has been consumated?

Atty. Gerry T. Galacio said...

Please clarify. When your sister and her husband got married in 1993, were the house and lot already titled in the name of the husband? Who is the registered owner of the land where the building for rent is located? When you say “entire property” are you referring to the house and lot AND the building for rent? I need to be clarified on these things.

Anyway, If your sister and her husband did not have agreement on their property relations when they got married, then ACP (absolute community of property) will apply. The presumption is that everything acquired during marriage is part of the community property, even if the property is titled only in the name of one spouse. Thus, even if the “entire property” is titled in the name of your sister’s husband, it is still presumed to be part of the community property. Thus, if and when there is a petition for declaration of nullity or for legal separation or for judicial separation of property, your sister can claim her half of the entire property at the very least.

Also, please take note that RA 9262 “Anti-Violence Against Women and their Children Act of 2004” provides under Section 5 (e) paragraph 4 that it is a criminal act punishable by imprisonment when the husband “controls the victim's own money or properties, or solely controlling the conjugal or common money, or properties.”


Your sister might at the very least file for judicial separation of property AND disinherit her husband. Please read my posts on these topics (look for the links in the sidebar).

Anonymous said...

hi atty,

i understand that after 1988 marriage, the property should be governed by Absolute community. I read so many articles regarding the difference between conjugal and absolute community, but it seems that it is more or less the same. Pardon me if i ask a very simple question, bt can u state the difference? thank you.

Atty. Gerry T. Galacio said...

Suppose the man is the registered owner of a rice field. If he gets married under ACP (absolute community of property), then the wife becomes co-owner of that rice field from the time of the celebration of the marriage (and even if the title remains in the man’s name).

Under CPG (conjugal partnership of gains) however, the man retains full and complete ownership of that rice field. What the wife will have a share on is the fruits (the harvest, the income, etc) from that rice field.

Another example. Suppose the man owns a cow. Under ACP, the wife will co-own that cow from the time the marriage was celebrated. Under CPG, however, the man retains ownership of the cow. The wife will only get a share of the cow’s fruits that is, the milk, the cow’s offspring (the English term for baby cows escapes me just right now …)

Geno said...

I am an American married to a Philipine woman. At the time of the marriage she owned her own home and I paid of the balance of a 20,000 peso note. I also built an addition to the home of a large CR with western fixtures, and I remodeled the entire home and outside, almost a half million pesos.
I was reading your blog about communal property and wanted to know
1. Is the money in my bank accounts half hers now under ACP
2. Do I automatically own half the house under ACP. or
3. I my interest in the house only to the extant of the upgrades i made.

Thank you

Atty. Gerry T. Galacio said...

Geno,

The Family Code defines ACP in Article 91 as “ALL the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.” Everything you and your wife owned BEFORE you got married and DURING your marriage belongs to the ACP. This is true even if the property is titled in the name of just one of the spouses.

Art. 92. The following shall be excluded from the community property:

(1) Property acquired during the marriage by gratuitous title 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.

Art. 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom.

Anonymous said...

My father recently died. He is survived by me and my sister and my stepmother. When my mother died 8 years ago, my father did not follow the article 130 of the new family code. And now, my stepmother wants to partition the assets, most of them were Conjugal property with my mother. My stepmother's argument about art. 130 is, the conjugal partnership property between my mother and my father cannot be liquidated because they did not incur any loans. Liquidation applies only if they have obligations and assets must be liquidated to pay the loans. Is her argument correct?

Geno said...

Atty. Galacio thank you so much for your prompt reply. I am the American Geno from previous question that you answered so fully. I have another questions involves a British friend of mine. He split up with his wife in Britian who filed for divorce. He came to the Philipines and me a wonderful woman and they live together here in the Philipines with his Filipina. They are happy. Now the wife has canceled the divorce and is threatening to go to the Phillipine Embassy in England and file a complaint, because he will not tell her where he lives. She is the one who initiated the breakup of the marriang eint he first place. Can he get in trouble for living with another women here in the Philipines, like for adultry. Or is he safe from her harassment. 'Thanks again in anticipation of ytour reply.

Atty. Gerry T. Galacio said...

Geno,

The Philippine Embassy in England does not have any judicial function. Under Philippine law, criminal cases must be filed first with the fiscal’s office which will conduct the preliminary investigation. If the fiscal recommends the filing of a criminal case, then the next step is the court or judicial process.

The question however is what case can the UK wife file and what fiscal’s office (and/or court) will have jurisdiction. Our rule here is that “venue is jurisdictional.” Meaning the case must be filed in the place where it took place. If the crime took place in Quezon City, it cannot be filed in Manila, for example.

This means that the UK wife cannot file a case from where she is right now. If she comes here to the Philippines, that is another matter.

Please read my post on “Adultery, concubinage and psychological violence” (look for the link in the sidebar). Adultery is a crime committed by the WIFE and her paramour. The proper crime against a philandering husband is CONCUBINAGE or as I discussed in the post, psychological violence under RA 9262. If the UK wife comes here to the Philippines and files a criminal case under RA 9262, your friend could be in trouble.

Geno said...

Thank you again Atty. Galacio. When I showed my British friend your answer, he was relieved and happy, and when he showed your answer to his girlfriend, for the first time in weeks she felt a sense of relief and was happy. Believe me she had many hours of tears over this issue. And your answers are right to the point, clear and very understandable. I am lucky to have found your blog.
If I may I have another question. As you know I am an American and under ACP I own half of my wifes home. (a)How can I own half when I as a foreigner am not allowed to own property: (b)and what if God forbid my beautiful wife passed away. Would the property be claimed by her mother or siblings? (c) or under these circumstances would the ownership of the home pass to my 13 yr old (step) daughter and me under the inheritance laws? It is sometimes hard to understand some laws because in my country, my wife can get off the plane and buy and own property the same day. Sometimes I feel it is unfair here to foreigners for example, I pay taxes, yet I cannot get a senior citizens discount card because I am not a citizen.
I do appreciate your help. You do provide a great service by way of this pro bono blog. Thank you. Geno

Atty. Gerry T. Galacio said...

Geno,

1. Please take note that Biblically speaking, I cannot approve or condone your British friend’s extra-marital relationship. The Bible states that sexual relations must only be within the bounds of marriage. As long as your friend is married to his UK wife, his sexual relationship with the Filipina is sin for which there is judgment under God’s laws. As someone has said, “What is legal is not always Biblical, and what is Biblical is not always legal.”

2. I will write in a week or two a full discussion on the issues relating to property relations of foreigners married to Filipino citizens. In the meantime, please read the 2006 Supreme Court decision in the case of ELENA BUENAVENTURA MULLER versus HELMUT MULLER (just search Google or Yahoo).

Briefly, however, if and when your beautiful wife passes away, you and your daughter will own the real estate or any other property she leaves by way of INTESTATE succession (meaning there is no last will and testament). Please read what intestate succession is all about in my website www.familymatters.org.ph

Geno said...

Thank you again Atty. Galacio. With regard to my British friend, his wife had asked him to leave the conjugal home in Britain and had initiated divorce proceedings. It was during the proceedings he left and came to the Phillipines to retire and have peace. Then his wife (and I read the emails) told him she was canceling the divorce and was gonna make his life hell. So your answers helped bring peace of mind. My friend I hate to be a pest, but I have another question:
I had asked about my wife, if she should pass. What if I should pass away. My money (all now in banks here) would it belong to the conjugal estare under ACP or would my two legitimate sons back in American from my prior two marraiges have entitlement to it under Art.92 para.3, Since all my money was aquired while I lived in the US. Of course I would want my wife and step-daughter here provided for.
Thank you again.

Atty. Gerry T. Galacio said...

Geno,

1. The provisions of the Family Code on ACP provide that your wife is co-owner of all properties she and you brought into your marriage. When you pass away (as all persons will sooner or later as the Bible in says Hebrews 9:27), your wife thus can legally claim her half of the community property.

2. When it comes to succession (or the right to inherit) among Filipinos, it is not the Family Code but the New Civil Code of the Philippines which governs. Please surf to the NCC section of www.familymatters.org.ph to read all about succession.

Please take note that I said the NCC governs successional rights of FILIPINO citizens. You are an American citizen and so, as to the issue of inheritance, your state law will be the governing law. If your legal residence in the US is Florida for example, Florida state law will govern. For example, if Florida state law does not provide for compulsory heirs, then you are free to dispose of your properties in any manner and to anyone you wish. You have to inquire with lawyers from your legal residence in the US as to what the laws there are with regards inheritance.

If you can go to the library of any law school, please read the Philippine Supreme Court decision of Miciano vs. Brimo which is the leading case on this issue.

Anonymous said...

Good day Atty.

would like to thanked you for having this site .It really helped a lot of people especially like me who have marital problems as well as legal problems which has scarce resources to avail honest legal advises.

hope to seek your advise. im a mother of a 3 year old baby boy, i was recently separated with my husband (not legally) for the past 6 mos. we got married last 3 years ago.

I will inherit small land properties which my parents own when they will be with our Lord..

1.)will these properties forms part of the ACP?

2.)could my estrange husband force me legally to have a part of these properties?

3.)i fear in the future that my estrange husband could accumulate unpaid debts (his usual practice).

how could I protect the properties/investments I will accumulate for my son in the future from the creditors of my husband, so that they cant go over my properties ?


4)could P.A.O. give assistance (representation,guidance,processing etc) for the legal separation that needs to take place between us?

I couldnt afford a lawyer because a minimum of 50k would be needed just to avail a his service . I dont have such money nor even 10k to provide for it , as im only a simple employee.


thank you so much atty. apologies also for so many queries . hope your energy will never fade to help people in needing your assistance.

more power to your site . and would gladly recommend to everybody having marital problems your article in salt and light.

it really help me a lot in moving on , facing life in a new direction.

thanks so much atty.

Atty. Gerry T. Galacio said...

1. When you got married three years ago and you did not indicate in your marriage contract a specific system of property relations between you and your husband, ACP (absolute community of property) became automatically the system for you.

However, with regards the lands you will inherit from your parents, Article 92 of the Family Code expressly excludes them from the ACP. The said article states:

The following shall be excluded from the community property:

(1) Property acquired during the marriage by gratuitous title 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. At the very least, you should file a petition for judicial separation of property. At the same time you should ask a COMPETENT notary public to draft for you a document disinheriting your husband. Please read my post on “Disinheriting your spouse” (look for the link in the sidebar).

If you file a petition for legal separation, the issues of liquidation of your community property, disinheritance, etc will be taken up.

As long as you have not taken up legal steps (judicial separation of property, disinheritance, or legal separation), your properties which are part of the ACP (excluding the lands you will inherit) can be held liable for debts, court judgments, etc.

You can inquire with banks about putting the properties you intend for your son in a TRUST.

3. Since you have properties, the PAO will not accept your case. The ceiling for clients accepted by PAO is about ten to fourteen thousand pesos monthly income. The same thing holds true for IBP (Integrated Bar of the Philippines).

You can try to ask for free legal help from the OLA (Office of Legal Aid) of the UP College of Law in Diliman, Quezon City.

But you can also find good-hearted lawyers who will agree to a per pleading and per hearing payment scheme.

Anonymous said...

good day atty. galacio
i would just like to ask for some clarifications regarding my mother's case.i hope you can help me.

my mother was sued for a collection of sum of money with prayer for a writ of preliminary attachment.my mother loaned a certain amount of money that would have an interest of 10% per month to establish a business.she only managed to pay the interest for a couple of months.for that reason she was asked to signed a promissory agreement in PAO that obliged her to pay her loan until a specific due date that my mother and her friend had agreed upon.they signed and she failed to give the whole amount instead she only had given them interests coz she still didn't have enough money. her friend sued her and now our family's house is attached to the case.my father has no idea of my mother's transaction.that's why my father is appealing that the house should not be attached to the case because it is a conjugal property.and aside from that, my mother didn't even mentioned in her promissory that she will have our house as a collateral. our lawyer said it's a conjugal property that's why it shouldn't be attached.others said it can be.so my father is so worried and doesn't know what to do. what will happen to our house atty? anything you'll say will be a big help atty. more power to you and to this site

Atty. Gerry T. Galacio said...

Your lawyer can tell you about the Family Code provisions on the “family home” (Articles 152 to 162) which can be used as defense. The family home is, with certain exceptions, exempt from execution, forced sale or attachment.

Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated.

Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law.

benjamin said...

dear atty.,
i am writing in behalf of my best friend friend. their case are s follows:
1. his father applied for a loan in one other banks in their province;
2. the loan was secured by parcel of land to where their house of family home was constituted.
3. the loan was instituted without the consent of the wife since from the face of the contract, the signature of the wife appeared to be a forgery;
4.The security was foreclosed and acquired by the bank by way of bidding.
5. the foreclosed collateral was the only property left for the spouses and their children;
6.there were already notices to the family to vacate the house and to surrender the property to the bank.
6. the wife had died recently;

QUESTION:
a. Can either of the children file a civil case to annul the security since it was invalid by virtue of forgery?
b. What if for the children to file civil case to declare nullity of contract since the children will be deprived of their ligitime as compulsory heirs since the mother had died recently?
c. what family code shall govern since the transaction was entered beyond 1988?

we are praying that you will give these matter preferential attention. we really appreciate your answer. more power and thank you so much.

Atty. Gerry T. Galacio said...

Benjamin,

The children should immediately retain the services of a lawyer to look at the documents and suggest possible legal remedies.

Anyway, the bank can and will probably claim that the forgery cannot be attributed to them. If the loan documents were notarized (as they most probably were), then the bank can claim that it is in good faith and that it is the father who should bear whatever liabilities arose from that forgery.

The father himself will be estopped (legal term for “prevented”) from claiming that the wife’s signature was forged.