Filing petition for legal separation to end community property regime


Persida Acosta

Dear PAO,
I was a battered wife before. There was not a week that I would not receive a beating from him. When I realized it’s not worth it, I left him. Since then, I focused on my career, which has been very rewarding. I’m doing well these days that I think I will be able to invest in a property soon but I am taken aback by the idea that my husband will have a share in it. May I ask if there is a way to defeat my husband’s right to any property I will buy?

Dear Bamby,
You are correct in saying that your husband may claim a portion of the property you will be able to buy. Article 75 of the Family Code states:

“The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in thisCode shall govern.”

Corollary thereto, Article 91 of the same Code states: “Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.”

Thus, under the present law, the default property regime of spouses is absolute community in which all the pieces of property owned by the spouses at the time of marriage and those acquired thereafter are considered common or shared property of the spouses. Exempted from this rule are pieces of property acquired by gratuitous title by either spouse, those for personal and exclusive use except jewelry and those acquired before the marriage by either spouse who has legitimate descendants by a former marriage (Sec. 92, Id.).

On the basis of the foregoing, the pieces of property that you will purchase, during the subsistence of your marriage to your husband, will form part of your community property, which your husband may claim as a co-owner, unless there is a pre-nuptial agreement stating otherwise or he validly waives his share.

To defeat your husband’s right to the pieces of property you will purchase, you must first terminate your community property regime. One of the ways to terminate the community property regime is filing a petition for legal separation. If granted by the court, legal separation will not only entitle the spouses to live separately from each other but will also result in the dissolution of the absolute community or conjugal property regime as well as the disqualification of the offending spouse from inheriting from the innocent spouse by intestate succession (Art. 63 (1) & (2), Family Code). After which, the spouses will be governed by separation of property regime. Under such regime, “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” (Sec. 145, Id.).

Please note that one of the grounds for legal separation is “repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner (Sec. 55 (1), Id.).” Thus, if you can prove that you were a battered wife and your husband repeatedly beat you in the past, you may file a petition for legal separation to end your community property regime.

Alternatively, you may file a petition for judicial separation of property to terminate your community property if there is sufficient cause. Sufficient causes are enumerated in Article 134 of the Family Code, and it includes “that at the time of the petition, the separation in fact for at least one year and reconciliation is highly improbable.”

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


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