• Only judicial order can effect division of property during marriage

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    I was charged with murder in a certain court in Manila and I am detained in a police station in the same area. I was informed by my brother during his last visit that my wife had allegedly drafted an agreement to divide the property we acquired during our marriage. When I referred this matter to a policeman in the police station who is taking up law, he said separation of property cannot be done except in the marriage settlement, and it cannot be done during the marriage. Hence, the intended separation of property by my wife will not prosper. I am really worried because I know that my wife has an attitude of a “one-day millionaire.” Is there a possibility that our property will be divided?
    Willy

    Dear Willy,
    The separation of property of the spouses during the marriage can be done by means of judicial separation of property. Hence, it is necessary for your wife to file the appropriate petition in court. This premise is based on Article 134 of the Family Code of the Philippines, which explicitly states:

    “In the absence of an express declaration in the marriage settlements, the separation of property between the spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause.”

    Relative thereto, the following are sufficient causes for judicial separation of property (Article 135, Id.):
    That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;
    That the spouse of the petitioner has been judicially declared an absentee;
    That loss of parental authority of the spouse of the petitioner has been decreed by the court;
    That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided in Article 101;

    That the spouse granted the power of administration in the marriage settlements has abused that power; and
    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 case 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.”

    In your situation, your spouse can file voluntarily a petition for judicial separation of property or for sufficient cause if you will be convicted later on and the penalty imposed upon you carries with it civil interdiction.

    We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts 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 dearpao@manilatimes.net

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