Only court can order separation of property

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Persida Acosta

Persida Acosta

Dear PAO,
My wife and I have been separated for ten years. It was a mutual decision because we simply grew apart. About two years ago, we talked about how we would divide our only property, the house and lot that we bought early during our marriage. The title of the property appears under our names. We have settled that I get to keep it since we are both in agreement that a great portion of the purchase of that property was from my income, anyway I am still supporting her. We had that agreement notarized and I have kept it ever since. I just want to ask if that is enough for me to have the property transferred under my name only. Please advise.
Frank

Dear Frank,
The contract of marriage touches not only the personal relations between the man and the woman who are parties thereto, but also their property relations.

Regarding your query, it is important to determine first whether you and your wife have agreed on a marriage settlement in order to properly determine whether your notarized agreement is enough to transfer the title of the property under your name alone. If you have agreed on a marriage settlement, the provisions thereof must be complied with, as well as respected. Moreover, if it is provided in your marriage settlement that the separation of your properties may be apportioned or dealt with through the execution of a notarized agreement, then it may be concluded that such agreement will suffice to transfer the title of the subject property under your name.

On the other hand, if you have not agreed on a marriage settlement prior to the celebration of your marriage or when the regime you have agreed upon is void, the system of absolute community of property shall govern (Article 75, Family Code of the Philippines). That being the case, all the properties which you and your wife may have acquired at the time of the celebration of your marriage and thereafter will be for your common benefit and enjoyment, except those excluded under Article 92 of the Family Code of the Philippines. Insofar as the separation of your property, though it may be pursued voluntarily by the spouses or with sufficient cause, it can only be done by securing a judicial order (Article 134, Ibid.). Accordingly, you and your wife may jointly file a verified petition with the court for the voluntary dissolution of your absolute community and for the separation of your common properties. You may indicate therein your agreement with your wife as to your house and lot. You must likewise indicate in your petition all the creditors of your community property as well as your personal creditors as they shall be notified of your intended separation of properties (Article 136, Id.). Should the same be granted, such petition as well as the final judgment granting the same shall be recorded in the proper local civil registries and registries of property (Id.).


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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