Legal separation ends absolute community of property

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Persida Acosta

Persida Acosta

Dear PAO,
I married my wife without any pre-nuptial agreement in the year 2007. I am a seafarer at present and I heard from my relatives and children that my wife frequently visits casinos in Pasay City, and has an illicit affair with another man.

I am contemplating of executing an agreement separating our pieces of property, because I fear that she might sell them without my knowledge in order to support her vices. My daughter informed me the last time that we talked that my wife’s car was lost to betting. What shall I do to safeguard these pieces of property?                

Nestor

Dear Nestor,
Since you and your wife did not execute any marriage settlement, your property relation shall be governed by the regime of absolute community of property. Article 75 of the Family Code of the Philippines provides that “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 marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern.”


In order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage xxx (Article 76, Ibid.) Separation of property between the spouses during the marriage shall not take place except by judicial order. Such separation of property may either be voluntary or for sufficient cause. (Article 134, Id.) In your situation, your wife’s sexual infidelity can be a ground for legal separation under Article 55 of the Family Code of the Philippines. One of the effects of the decree of legal separation is the termination of the absolute community of property (Article 99, Id.)

You may also avail of the provision of Article 136 of the law, which states, “The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties. All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest.”

The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries and registries of property. (Article 139, Id.)

Pieces of property lost by your wife to gambling shall be borne by her. This finds support under Article 95 of the Family Code of the Philippines, which states, “Whatever may be lost during the marriage in any game of chance, betting, sweepstakes or any other kind of gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property.”

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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