• Division of property can proceed without court’s participation

    Persida Acosta

    Persida Acosta

    Dear PAO,
    My friend has been separated from her husband for about a year and a half now. They only communicate with each other whenever there is something they need to talk about involving their son. Last week, they were able to discuss about the possibility of separating their pieces of property. She wants to know whether this can be done without going through court proceedings. I hope you can shed light on this matter. Thank you and more power.
    Black Jack

    Dear Black Jack,
    The first thing that must be considered is whether there exists a marriage settlement between your friend and her husband. If they have entered into such an agreement before the celebration of their marriage, then their pieces of property should be separated in accordance with the provisions thereof. Correspondingly, they may proceed with the separation of their pieces of property without having to go through a court proceeding only if this is expressly provided under the agreement.

    If, however, they do not have a marriage settlement or if they have but it is silent insofar as the procedure of dividing their pieces of property, either or both of them must file a petition in court. This is in consonance with Article 134 of the Family Code of the Philippines (FCP) which provides: “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.”

    If they wish to proceed with the voluntary dissolution of their property, they must jointly file the petition in court. The petition must specifically indicate the pieces of property that forms part of their community property as well as the list of their creditors. It is also necessary for them to notify their creditors of such petition. Nevertheless, the court is bound under the law to take necessary measures in order to protect the creditors and other persons with pecuniary interest (Article 136, FCP).

    On the other hand, if your friend and her husband could not agree to the voluntary dissolution of their pieces of property and she is determined to file the petition herself, she must be able to establish in court not only the fact that she has been separated from her husband for about a year and a half now, but also the verity that reconciliation between them is highly improbable (Article 135 (6), FCP).

    Should the court grant her petition, the final judgment thereto, together with the petition, shall be recorded in the proper local civil registries and registries of property (Article 139, FCP).

    We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

    Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chaief Acosta may be sent to dearpao@manilatimes.net


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