I was married to my husband about a decade ago. We only lived together for five years after which we mutually decided to live our lives separately. During our brief period together as husband and wife, we were able to own several pieces of property together. I know that these are conjugal assets that we share equally, since we have no marriage settlement or pre-nuptial agreement. But since we are now living separately, I decided to contact my husband and agree to get our separate and distinct shares from our conjugal pieces of property based on our own agreement, which did not mention equal sharing of the assets. Because of this, I want to know how we can formalize this agreement. Thank you for your advice.
It appears from your narration that you want to dissolve your conjugal pieces of property as husband and wife who had no pre-nuptial agreement. According to the Family Code of the Philippines, there are two ways that you can go about this. It can either be through a judicial separation based on sufficient grounds or through a voluntary separation of the absolute community of property. In both cases, the separation of property between spouses shall not take place unless there is a judicial order to that effect (Article 134, Ibid.).
The dissolution of the conjugal property through judicial separation based on sufficient causes involves and requires the existence of specific grounds enumerated by law under Article 135 of the Family Code. Under this provision, the fact that you and your husband have been separated in fact for at least a year can be used as a sufficient cause for the judicial separation of your assets (par. 6, Id.). But since you mentioned that you and your husband agreed on the manner of the separation of your conjugal pieces of property, you may appropriately use the voluntary separation of property as a mode of dissolving your conjugal assets.
For the voluntary separation of the conjugal pieces of property, the same code states:
Art. 136. The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties.
All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest.
In filing such a petition, you and your husband need not state any grounds for it, since mere agreement between the two parties is sufficient. It is also important to note that the petition may contain the agreed manner of division of your assets as long as it is not contrary to law and public policy (Mel Sta. Maria, Persons And Family Relations Law, 2010). Therefore, your agreement with your husband as to the manner of the separation of your conjugal pieces of property can be used and put into effect in the division of your assets. And as mentioned in the above-cited law, there is also a requirement to notify your creditors if any, when you file a petition for the voluntary separation of your pieces of property.
In the end, the law states that once the separation of the assets has been decreed by the court, your conjugal assets will then be liquidated in accordance with the law, which recognizes your right to agree on the terms of its dissolution (Article 137, Family Code of the Philippines).
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to email@example.com