My wife and I have been living separately for a couple of years. When we were still together, we were able to purchase pieces of property. We want to divide these purchases. My wife suggested that we make a contract. Is that all right? How do we go about this matter legally?
The property relation between spouses is governed by law and is not subject to stipulation, save in the case of marriage settlement or pre-nuptial agreement executed before the marriage (Art. 1, Family Code). Consequently, the spouses are only allowed to specify matters concerning their property relation before their marriage. Thereafter, their property relation will be governed by what is provided in their marriage settlement, if one is executed, or by the Family Code and local customs (Art. 74, Id.). They may no longer modify or terminate their property relation on their own. Any plan or attempt to modify the property relation during the marriage must comply with our laws, the Family Code in particular.
On this subject, the Family Code provides modes for modification of property relation between spouses during the subsistence of marriage under certain circumstances and upon compliance with the prescribed procedures. These circumstances are legal separation, revival of former property regime in case of reconciliation after legal separation, judicial separation of property or voluntary dissolution of the property regime (Pana vs. Heirs of Juanite, 687 SCRA 414). In these instances, the shared property regime between the spouses is either dissolved or revived without affecting the marital ties between them.
Yet, as previously mentioned, there are prescribed procedures, which the spouses have to comply with before their property relation may be modified. In all the mentioned instances, it is required to secure judicial authorization to modify the property relation of spouses. One or both spouses must file a petition or motion in court proving that the conditions and the requirements set by law are complied with, and pray for the modification of their property relation. If the court finds all things in order, it will issue an order, decision or decree, as the case may be, approving the modification. Only then will the modification of property relation be effected.
Taking the foregoing into account, the execution of a contract stipulating that you and your spouse have agreed to divide your common pieces of property will not be sufficient to partition the pieces of property involved. You are required to secure judicial authorization for this matter. Considering that you and your wife have agreed to partition your common pieces of property, you may opt for voluntary dissolution of property regime which can be initiated by filing a joint verified petition signed by both spouses(Art. 136, Id.).
Please bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary if facts are changed or elaborated.
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