My husband abandoned us for another woman when our son was still little. Fortunately and with God’s grace, I was able to find a good job and provide for my son. Now, I am planning to buy a house for us but I fear that my husband may one day lay a claim to the house. May I know his possible claims and how I can prevent them?
Your concern is that your estranged husband may one day lay a claim to the house you wish to buy for you and your son. Such claim may indeed arise in the future and may be founded on your husband’s right as co-owner of community property, as well as his right to inherit as legal spouse.
Please bear in mind that the system of absolute community of property governs the property relations of spouses in the absence of a marriage settlement, or when the regime agreed upon is void (Art. 75, Family Code). Under the absolute community of property regime, all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter is considered community property (Art. 91, Ibid.). Pieces of community property are shared assets of the spouses that will be divided equally between husband and wife, unless a different proportion or division was agreed upon in the marriage settlement or there is a valid voluntary waiver of such share (Art. 102 (4), Id.). Hence, the house you wish to purchase now, 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.
His second claim may be founded on his successional right as your legal spouse should you predecease him. A legal spouse is a compulsory heir entitled to receive a portion of the estate of a deceased person that is reserved by the law itself, known as legitime (Art. 886 & 887, Civil Code). Such right subsists, even though you already separated as mere estrangement is not a legal ground for the disqualification of a surviving spouse as an heir of the deceased spouse (Baritua vs. Court of Appeals, G.R. No. 82233, March 22, 1990).
In order to forestall his claim, you may file a petition for legal separation before buying the property. By legal separation, the husband and wife are entitled to live separately from each other. Its effects include 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. Moreover, provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law (Art. 63 (2) (4), Family Code). Thus, securing a decree of legal separation before buying the house will cut off your husband’s claim as co-owner considering that your spousal property regime will be dissolved by legal separation. Further, legal separation will also take away his right to inherit from you in the event that you predeceased him.
In asking for legal separation, you may cite the sexual infidelity of your husband and his act of abandoning you and your son. (Art. 55 (8) & (1), Id.) Please note, however, that abandonment, as a ground for legal separation, “implies departure by one spouse with the avowed intent never to return, followed by prolonged absence without just cause, and without in the meantime providing in the least for one’s family although able to do so. There must be absolute cessation of marital relations, duties and rights, with the intention of perpetual separation.” (Partosa-Jo vs. Court of Appeals,G.R. No. 82606 December 18, 1992) Also, the abandonment must last for at least one (1) year.
Please bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary if facts are changed or elaborated.
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