My husband and I did not execute any marriage settlement when we were married in 2000. Is it possible for us to have a complete separation of property now?
According to Article 75 of the Family Code of the Philippines (FCP), when the husband and wife did not execute any marriage settlement prior to the celebration of their marriage, their property relations shall be governed by the system of absolute community of property. Under this regime, all the property owned by the spouses at the time of the celebration of the marriage and everything that they acquired thereafter shall form part of the community property that is owned by both the spouses (Article 91, FCP). However, there are instances when either of the spouses may petition the court for the separation of property. These are provided in Article 135 of the said law, to wit:
Article 135. Any of the following shall be considered sufficient cause 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.
If any of the foregoing is present, you may file a petition before the Family Court for the judicial separation of your property. However, if none of the foregoing is present, your property regime may still be changed to a complete separation of property provided that you and your husband will jointly file a verified petition with the court for the voluntary dissolution of the absolute community property of conjugal partnership of gains, and for the separation of their common properties (Article 136, FCP).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that 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 Chief Acosta may be sent to firstname.lastname@example.org