Grounds for judicial separation of property

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Persida Acosta

Persida Acosta

Dear PAO,
I have been married for five years now. My husband and I have been living apart for a year already. In addition to this, he continues to live with his mother and has never worked a day in his life. During an argument, my husband told me that all of my possessions are his as well. I found out that since we do not have any prenuptial agreement, our properties are owned by us in common. I am on my way to finish my amortizations on a townhouse in Quezon City. I really do not want my husband to own any of it. Is there any way for us to not own properties in common? Thank you!
Juliet

Dear Juliet,
The Family Code allows spouses to enter into a property regime of separation of property. Article 134 of this Code provides that even if the spouses did not enter into any marriage settlement, otherwise known as a prenuptial or antenuptial agreement, they can still have a separation of property by seeking a judicial order. The judicial order of separation of property may be voluntary or for sufficient cause.

If you and your husband are amenable to separating your properties, then you can jointly submit a verified petition with the court for voluntary dissolution of your absolute community or conjugal partnership of gains (Article 136, Family Code). Take note that voluntary dissolution can only be granted once by the court. Therefore, if you and your husband decide to combine your properties once again and revive your absolute community or conjugal partnership of gains, you can file a motion to revive your previous property regime in the same court. However, the court will no longer allow you to voluntarily dissolve it again (Article 141 (7), Family Code).

If there is no amicable settlement to voluntarily dissolve your existing property regime, you may still file a petition for dissolution of your property regime for cause. Article 135 of the abovementioned law numerates the following as sufficient causes for judicial separation of property:


“(1)    That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;

“(2)    That the spouse of the petitioner has been judicially declared an absentee;

“(3)    That loss of parental authority of the spouse of petitioner has been decreed by the court;

“(4)    That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101;

“(5)    That the spouse granted the power of administration in the marriage settlements has abused that power; and

“(6)    That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable.

“In the cases provided for in numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse shall be enough basis for the grant of the decree of judicial separation of property.”

If your petition is based on any of the grounds under Article 135, the court will grant your petition. The existing property regime will be dissolved and liquidated and you will have a separation of property.

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 dearpao@manilatimes.net

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