Factual separation

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Persida Acosta

Persida Acosta

Dear PAO,
I have been married for almost five years until my husband left us without any reason. I found out through one of his friends that he is living now with another woman. My income is not sufficient in order for me to send my three kids to school, so I am contemplating to sell a house and lot in Cavite, which we have purchased during our marriage. The prospective buyer; however, would like me to obtain my husband’s consent before we proceed with the intended sale. I, however, cannot locate my husband, and don’t know his whereabouts. What shall I do so that I can sell the property? Do I still need my husband’s consent even if we are already separated?

Farah

Dear Farah,
You are separated in fact from your husband, but not legally separated. For legal separation to take place, you must file a petition with the family court with proper jurisdiction based on the grounds provided under Article 55 of the Family Code of the Philippines (Executive Order 09). The court will issue a judicial decree of legal separation if your petition for legal separation will be granted. One of the effects of legal separation is the termination of the absolute community of property under Article 99 of the law.

For you to realize any transaction involving pieces of property belonging to the absolute community of property, you must obtain a judicial authorization since you cannot obtain the consent of your husband. Article 100 of the above-mentioned law states, “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.”

If the other spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may also petition the court for receivership, judicial separation of property or authority to be the sole administrator of the absolute community of property. A spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning. The spouse who has left the conjugal dwelling for a period of three (3) 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, Ibid.)

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

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