On liquidating former spouses’ properties

Persida Acosta

Persida Acosta

Dear PAO,
I’d like to know the extent of my rights as to the sharing of the properties with my second wife whom I married after my first wife passed away. Because of the initial shock and depression from my first wife’s death, I was not able to arrange for the liquidation of my first wife’s properties. I was told by a friend in a similar situation that my failure to settle the properties of my deceased wife might have legal effects on my rights as to the administration and handling of the properties in my current marriage. So now I’d like to know how my new wife and I can administer our properties. I hope you can enlighten us on this matter. Thank you and more power.

Dear Arden,
Since you mentioned that you were previously married and that you failed to settle and liquidate your conjugal properties after your first wife’s death, the mandatory regime of complete separation of property will govern the administration of your property with your current wife. This is because the law on property relations from the Family Code of the Philippines states that:

“Art. 103. Upon the termi–nation of the marriage by death, the community property shall be liquidated in the same pro–ceeding for the settlement of the estate of the deceased.

If no judicial settlement pro–ceeding is instituted, the sur–viving spouse shall liquidate the community property either judicially or extrajudicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community pro–perty of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a man–datory regime of complete sepa–ration of property shall govern the property relations of the subsequent marriage.”

As shown from this cited law, the community property from a previous marriage terminated by death, such as in your case, is required to be liquidated in order to identify and separate your share from the property left by your wife. Prior to the completion of the liquidation and partition of you and your wife’s community property, any disposition of the said property is void according to law since you have yet to physically identify which part specifically belongs to you or your wife.

It is important to note that this failure to liquidate your previous community property causes the application of the regime of complete separation of property in your second marriage. This is required by law in order to protect the unliquidated properties of your first wife by preventing its inclusion to the properties of your new marriage. As to the manner of administration of properties under this regime of complete separation of property, the law specifically provides that:

“Art. 145. Each spouse shall own, dispose of, possess, ad–minister and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property” (Family Code of the Philippines).

Therefore, under a complete separation of property, you get to exclusively keep and manage the properties and earnings which you brought in to your current marriage without inter–ference from your new wife. However, with regard to the payment of family expenses, both you and your new wife will share on the charges for it in proportion to your income or to the value of your separate properties. In addition to this, you and your wife will also be solidarily liable to your creditors with regard to the family expenses (Article 146, Family Code of the Philippines). In other words, while you and your wife will separately enjoy each of your own properties, both of you will still share the obligation in the payment and charges for your family expenses.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appre–ciation 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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