Published 28 October 2019, The Daily Tribune
I had discussed in my 6 July 2018 article the possibility of spouses entering to a marriage settlement before contracting marriage. But for majority of Filipinos who did not enter into such a marriage settlement, the regime of absolute community of property between spouses remains applicable if the marriage was contracted after 3 August 1988.
The conjugal partnership of gains, which governs marriages celebrated before the Family Code or before 3 August 1988, will be for another discussion.
The absolute community of property between spouses starts from the time the marriage is celebrated. It cannot be modified during the marriage; hence, any agreement must be done prior to contracting the marriage (Article 88, Family Code). Under the regime, all properties owned by the spouses before the marriage and those that they acquire during the marriage shall form part of the absolute community and is shared equally by husband and wife (Article 91, Family Code).
As a general rule, any property acquired during the marriage is presumed to belong to the community, unless it is shown that it is excluded in the following:
•Property acquired during the marriage by gratuitous title such as by way of donation or inheritance unless the donor testator or grantor provides that they shall form part of the community property. So, if one of the spouses inherited a property during the marriage, his/her future spouse will not co-own that property as well as the fruits and income therefrom.
•Property for personal and exclusive use of either spouse. Jewelry is not considered excluded under this; hence, it is part of the community property.
•Property acquired before the marriage if the acquiring party has legitimate descendants (children, grandchildren) by a former marriage. The fruits and income of such property are also excluded.
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. It shall not be charged to the community but any winnings therefrom shall form part of the community property (Article 95, Family Code).
There is a need for the absolute community to be expansive because it is answerable for the needs of the family, including the support of the spouses, their common children, and legitimate children of either spouse. All debts and obligations contracted during the marriage by the designated administrator-spouse are sourced from the community property. Even debts obtained without the consent of the other may be enforced on the community property to the extent that the family may have been benefited.
Other expenses chargeable to the community property are:
•Taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family;
•Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement, and even debts incurred by either spouse prior to marriage (for as long as it benefited the family), and expenses of litigation between the spouses, may all be sourced from the community property;
•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;
•Debts incurred prior to the marriage by either spouse that did not benefit the family;
•The support of illegitimate children of either spouse;
•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. However, this is considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and,
•Expenses of litigation between the spouses unless the suit is found to be groundless (Article 94, Family Code).
For comments and questions, please send an email to cabdo@divinalaw.com.
