PROPERTY RELATIONS UNDER THE FAMILY CODE

1. Basis of Property Relations Under The Family Code

Art. 74: Family Code

1. By marriage settlements executed before the marriage (i.e., pre-nups, must

be in writing, signed by the parties and executed by the parties before the
celebration of the marriage and, to affect third persons, must be registered
in the local civil registry where the marriage contract is recorded and in
the proper registries of properties.)

2. By provisions of the Family Code

3. By the local custom

2. Property Relations that may be agreed upon by future spouses in a

marriage settlement

I. Absolute Community of Property [ACP]

II. Relative Community of Property or Conjugal Partnership of Gains [CPG]
III. Complete Separation of Property
IV. Upon any other regime that may be agreed upon

In the absence of marriage settlements or when the same are void, the property
relations shall be governed by the default rules under no. 3 below.

3. Property Relations without Marriage Settlement

Before the Family Code (Civil Code) CONJUGAL

PARTNERSHIP OF GAINS

Under the FAMILY CODE - ABSOLUTE COMMUNITY OF

(Effective August 3, 1988) PROPERTY

4. Essential Features of the types of Property Relations

I. CONJUGAL PARTNERSHIP OF GAINS

Conjugal Partnership of Gains presupposes that there are properties which are
to be considered conjugal and therefore owned both by the husband and the wife,
while there are those properties which still belong exclusively to each of the
spouses over which they exercise exclusive ownership and administration.

For marriages solemnized before August 3, 1988, the property regime that
governed the marriage, absent any marriage settlements, was Conjugal
Partnership of Gains. However, upon the effectivity of the Family Code, marriages
solemnized thereafter would be governed by Conjugal Partnership of Gains only

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 if said regime is agreed upon by the spouses in a marriage settlement executed
prior to the celebration of the marriage.

CONJUGAL PROPERTIES

Generally, under the regime of Conjugal Partnership of Gains, the spouses put
into a common fund the following:

(1) proceeds, products, fruits and income of their separate properties; and

(2) those acquired by either or both spouses through their efforts (i.e., their
work or business) or by chance (i.e., share in hidden treasure or winning
from lotteries).

Thus, the following are considered conjugal properties (Art. 117 Family Code):

(1) Those acquired by onerous title during the marriage at the expense of the
common fund, whether the acquisition be for the partnership, or for only
one of the spouses;

(2) Those obtained from the labor, industry, work or profession of either or
both of the spouses;

(3) The fruits, natural, industrial or civil, due or received during the marriage
from the common property, as well as the net fruits from the exclusive
property of each spouse;

(4) The share of either spouse in the hidden treasure which the law awards to
the finder or owner of the property where the treasure is found;

(5) Those acquired through occupation such as fishing or hunting;

(6) Livestock existing upon the dissolution of the partnership in excess of the
number of each kind brought to the marriage by either spouse; and

(7) Those which are acquired by chance, such as winnings from gambling or
betting. However, losses therefrom shall be borne exclusively by the loser-
spouse.

PRESUMPTION OF BEING CONJUGAL PROPERTY

There is a presumption that all property acquired DURING the marriage is

conjugal in nature. Art. 116 of the Family Code reads:

Art. 116. All property acquired during the marriage, whether the
acquisition appears to have been made, contracted or registered in
the name of one or both spouses, is presumed to be conjugal unless
the contrary is proved.

The determining point is the TRANSFER OF OWNERSHIP of the property.

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EXCLUSIVE PROPERTIES

The following properties are considered as exclusive, paraphernal, or belonging

only to one of the spouses:

1. That which is brought to the marriage as his or her own;

2. That which each acquires during the marriage by gratuitous or lucrative

title;

3. That which is acquired by right of redemption or by exchange with other

property belonging to only one of the spouses; and

4. That which is purchased with the exclusive money of the wife or the
husband.

The general rule is that conjugal properties cannot be alienated without the
consent of both spouses; while respect to exclusive properties, the owner thereof
can alienate the same without the consent of the other spouse.

RULES ON PROPERTY BOUGHT ON INSTALLMENTS UNDER THE FAMILY

CODE

1. Under the Family Code, whether the property bought on installments

belongs to the conjugal partnership or exclusively to one spouse depends
on the time when ownership was vested.

2. Property bought on installments by a spouse before the marriage wherein

the spouse paid some installments from his or her exclusive funds and
after the marriage said installments are paid by conjugal funds belong
exclusively to the spouses if full ownership under the contract of sale was
absolutely vested in the spouses before the marriage. However, the
amounts paid by the conjugal partnership shall be reimbursed later on,
upon liquidation.

3. If under the contract of sale, full ownership is vested not upon the
execution of sale but upon payment of the entire purchase price, which
was fully paid during the marriage and out of conjugal funds, the property
is conjugal. However, the conjugal partnership shall reimburse to the
spouse the installments paid before the marriage.

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II. ABSOLUTE COMMUNITY OF PROPERTY

Absolute Community of Property presupposes that all present and future

properties of the spouses (at the time of the celebration of the marriage) shall be
considered as belonging jointly to the husband and the wife.

Community property consists of all property owned by the spouses at the time of
the celebration of the marriage or those acquired thereafter unless excepted in
the Code or marriage settlement

The following shall be excluded from the community property:

1. Property acquired by gratuitous title by either spouse, and the fruits as

well as the income thereof, if any, unless it is provided by the donor or
testator or grantor that it shall become part of the community property;

2. Property for personal and exclusive use of either spouse; however, jewelry
shall form part of the community.

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.

4. Property inherited by either husband or wife through the death of a child

by a former marriage, there being brothers and sisters of the full blood of
the deceased child;

5. A portion of the property of either spouse equivalent to the presumptive

legitime of the children by a former marriage

The ownership, administration and usufruct of the community property pertain

to the spouses jointly.

WAIVER OF RIGHTS

Art. 89. 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.

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 DONATION BY SPOUSE

Art. 98. 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.

PRESUMPTION OF ABSOLUTE COMMUNITY PROPERTY

There is a presumption that all property acquired DURING the marriage is

common in nature. Art. 93 of the Family Code reads:

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.

For as long as purchased during the marriage, it is presumed to be common in

nature, whether the title is registered in the name of both or only one of the
spouses.

III. COMMON RULES

Common Rule on OWNERSHIP, ADMINISTRATIVE, ENJOYMENT AND

DISPOSITION OF COMMON PROPERTY (whether under Conjugal Partnership of
Gains or Absolute Community of Property)

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. (Arts. 96 and 124 of the Family Code)

Common Rule on SEPARATION IN FACT of spouses (whether under Conjugal

Partnership of Gains or Absolute Community of Property):

The separation in fact between husband and wife shall not affect the property
regime, except that:

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 (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 common property, the separate property of

both spouses shall be solidarily liable for the support of the family. The
spouse present shall, upon petition in a summary proceeding, be given
judicial authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds thereof to
satisfy the latter's share. ( Arts. 100 and 127 of the Family Code)

Common Rule on ABANDONMENT or FAILURE TO COMPLY WITH MARITAL/

PARENTAL AND PROPERTY RELATIONS OBLIGATIONS (whether under
Conjugal Partnership of Gains or Absolute Community of Property)

Arts. 101 and 128. 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, judicial separation of property or for authority
to be the sole administrator of the common properties, subject to such
precautionary conditions as the court may impose.

IV. COMPLETE SEPARATION OF PROPERTIES

If the spouses before the marriage agree on complete separation of properties, the
separation may refer to both present and future properties or it may be total or
partial.

The ownership, administration and usufruct of those properties which are

considered separate pertain to the spouse to whom they belong.

Each spouse shall proportionately bear family expenses.

RIGHT TO DISPOSE, POSSESS, ADMINISTER EXCLUSIVE PROPERTY

Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his
or her own separate estate, without need of the consent of the other. To each
spouse shall belong all earnings from his or her profession, business or industry
and all fruits, natural, industrial or civil, due or received during the marriage
from his or her separate property.
RIGHT OF SPOUSE OVER EXCLUSIVE PROPERTY

Art. 110. The spouses retain the ownership, possession, administration and
enjoyment of their exclusive properties.

Either spouse may, during the marriage, transfer the administration of his or her
exclusive property to the other by means of a public instrument, which shall be
recorded in the registry of property of the place the property is located.

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 Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise
dispose of his or her exclusive property, without the consent of the other
spouse, and appear alone in court to litigate with regard to the same.

SEPARATION OF PROPERTY DURING MARRIAGE

Art. 134. In the absence of an express declaration in the marriage settlements,

the separation of property between spouses during the marriage shall not take
place except by judicial order. Such judicial separation of property may either
be voluntary or for sufficient cause.

Art. 135. Any of the following shall be considered sufficient cause for judicial
separation of property:

(1) That the spouse of the petitioner has been sentenced to a penalty which
carries with it civil interdiction;

(2) That the spouse of the petitioner has been judicially declared an
absentee;

(3) That loss of parental authority of the spouse of petitioner has been
decreed by the court;

(4) That the spouse of the petitioner has abandoned the latter or failed to
comply with his or her obligations to the family as provided for in Article
101;

(5) That the spouse granted the power of administration in the marriage
settlements has abused that power; and

(6) That at the time of the petition, the spouses have been separated in fact
for at least one year and reconciliation is highly improbable.

V. ANY OTHER REGIME

- Any modified regime, usually a combination of one or two of the above (I), (II)
or (III).

_________________________________________________________________________

MARITAL CONSENT IN DEED OF SALE

1. Marital Consent is required -

a) when the property relations between the spouses is one of absolute community
and the property is community property; or

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b) when the property relations between the spouses is one of conjugal partnership
and the property involved was acquired by onerous title during the marriage at
the expense of the common fund.

2. Marital Consent is NOT necessary -

a) when the property relations between the spouses is one of absolute separation;
or

b) when the property relations between the spouses is one of conjugal partnership
and the property involved:

(i) was brought into the marriage by either of the spouses (property
nomenclature: husband's - capital, wife's - paraphernal);

(ii) was acquired by either of the spouses by inheritance; or

(iii) was acquired with exclusive funds of either of the spouses.

_________________________________________________________________________

PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE

- Unions without marriage are those who may marry but choose not to, for any reason
whatsoever or void marriages. This is covered by Article 147 of the Family Code which
states:

When a man and a woman who are capacitated to marry each other, live exclusively
with each other as husband and wife without the benefit of marriage or under a void
marriage, their wages and salaries shall be owned by them in equal shares and the
property acquired by both of them through their work or industry shall be governed by
the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together
shall be presumed to have been obtained by their joint efforts, work or industry, and
shall be owned by them in equal shares. For purposes of this Article, a party who did
not participate in the acquisition by the other party of any property shall be deemed to
have contributed jointly in the acquisition thereof if the former's efforts consisted in the
care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the
property acquired during cohabitation and owned in common, without the consent of
the other, until after the termination of their cohabitation.

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.

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Note the following:

(i) Even if one of the partners is not working, the common properties are deemed to
be owned by both under co-ownership, with a 50-50 sharing, if the efforts of the
non-working partner shall consist of the care and maintenance of the family and
household.

(ii) This does not include those acquired by gratuitous or lucrative title.

(iii) In case of encumbrance or disposition of the properties, both must give their
consent.

COHABITATION WITH MARRIED PERSON – EFFECT ON PROPERTY ACQUIRED

- These are called adulterous relationships, which are cohabitations by persons who
cannot marry each other because they are legally prevented from doing so because either
or both of them are married to other persons. This is covered by Article 148 of the
Family Code which states:

Art. 148. 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.

Note the following:

(i) If the partners bought property by their actual joint contribution of money, then
said property shall be owned by them under co-ownership, in proportion to their
contribution. If said property shall be sold then consent of both must be had.

(ii) Care and maintenance of the family and household is not considered “actual
contribution.”

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LEGITIMATE AND ILLEGITIMATE CHILDREN

LEGITIMATE CHILDREN

Art. 164. Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the
husband or that of a donor or both are likewise legitimate children of the husband and
his wife, provided, that both of them authorized or ratified such insemination in a
written instrument executed and signed by them before the birth of the child. The
instrument shall be recorded in the civil registry together with the birth certificate of the
child.

➢ LEGITIMATE AND LEGITIMATED CHILD CAN USE THE SURNAME OF THE

MOTHER

• ALANIS VS. CA – GR NO. 216425, NOV. 11, 2020

o Courts, like all other government departments and agencies, must

ensure the fundamental equality of women and men before the law.
Accordingly, where equally, that is the correct interpretation.

o In tum, Article 364 of the Civil Code provides:

ARTICLE 364. Legitimate and legitimated children shall principally use

the surname of the father

The Regional Trial Court's application of Article 364 of the Civil Code is
incorrect. Indeed, the provision states that legitimate children shall
"principally" use the surname of the father, but "principally" does not mean
"exclusively." This gives ample room to incorporate into Article 364 the
State policy of ensuring the fundamental equality of women and men
before the law, and no discernible reason to ignore it

ILLEGITIMATE CHILDREN

Art. 165. Children conceived and born outside a valid marriage are illegitimate, unless
otherwise provided in this Code.

SURNAME OF ILLEGITIMATE CHILD UNDER FAMILY CODE

Illegitimate children shall use the surname and shall be under the parental authority of
their mother, and shall be entitled to support in conformity with this Code.

The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child. Except for this modification, all other provisions in the Civil Code
governing successional rights shall remain in force. [ Art. 176 ] AS AMENDED BY RA
9255

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 REPUBLIC ACT No. 9255
February 24 2004

AN ACT ALLOWING ILLEGITIMATE CHILDREN TO USE THE SURNAME OF THEIR

FATHER, AMENDING FOR THE PURPOSE ARTICLE 176 OF EXECUTIVE ORDER
NO. 209, OTHERWISE KNOWN AS THE "FAMILY CODE OF THE PHILIPPINES"

SECTION 1. Article 176 of Executive Order No. 209, otherwise known as the Family
Code of the Philippines, is hereby amended to read as follows:

"Article 176. Illegitimate children shall use the surname and shall be under the parental
authority of their mother, and shall be entitled to support in conformity with this Code.
However, illegitimate children may use the surname of their father if their filiation has
been expressly recognized by the father through the record of birth appearing in the civil
register, or when an admission in a public document or private handwritten instrument
is made by the father. Provided, the father has the right to institute an action before the
regular courts to prove non-filiation during his lifetime.

The legitime of each illegitimate child shall consist of one-half of the legitime of a
legitimate child."

Approved: February 24 2004

REPUBLIC ACT. NO. 9858

AN ACT PROVIDING FOR THE LEGITIMATION OF CHILDREN BORN TO PARENTS

BELOW MARRYING AGE, AMENDING FOR THE PURPOSE THE FAMILY CODE OF
THE PHILIPPINES, AS AMENDED

Section 1. Article 177 of Executive Order No. 209, otherwise known as the "Family Code
of the
Philippines", as amended, is hereby further amended to read as follows:

"Art. 177. Children conceived and born outside of wedlock of parents who, at the time
of conception of the former, were not disqualified by any impediment to marry each
other, or were so disqualified only because either or both of them were below eighteen
(18) years of age, may be legitimated."

"Art. 178. Legitimation shall take place by a subsequent valid marriage between parents.
The
annulment of a voidable marriage shall not affect the legitimation." x x x x x x’

Approved: DEC 20, 2009

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