Separation of property after wife leaves husband, son


Persida Acosta

Dear PAO,
My sister and my brother-in-law have been having marital problems for almost a year now. It began when my sister left my brother-in-law and their then two-year-old son. My brother-in-law sought our family’s help to intervene but my sister simply shut us all out and told us she will never go back to her family. Because of this situation, my brother-in-law was faced with great financial difficulty as he is the only one left working for my nephew who has special needs. We recently talked and he told me that, although he has not thought about having their marriage annulled, he really wants to have a separation of property. He just wants to be able to control the pieces of property that he has acquired since the time they got married and sell them without having to secure my sister’s consent, especially if there will be emergency situations where he will be needing money for his or my nephew’s needs. I completely understand him and although we are not related by blood, I fully support him on this. Do you think this is possible? If so, does he need to secure a court order? Please advise us.

Dear Sammy,
A contract of marriage brings about mutual obligations to the spouses. One obligation is to live together. A spouse may, nevertheless, be exempted from complying with such obligation if she/he needs to live abroad or if there are other valid and compelling reasons to live separately from the other (Articles 68 and 69, Family Code of the Philippines).

In the situation which you have presented before us, it appears that your sister has offered no valid reason to live separately from her husband. You even mentioned that she repudiated your family’s intervention without justifiable cause and altogether decided that she will no longer return to her family. With these in mind, it is safe to say that she has violated the aforementioned obligation that was imposed upon her by our law.

Corollary, your brother-in-law may seek redress from our courts as it is clearly provided under Article 72 of the Family Code of the Philippines, “When one of the spouses neglects his or her duties to the conjugal union or commits acts which tend to bring danger, dishonor or injury to the other or to the family, the aggrieved party may apply to the court for relief.”

At this point, it will be prudent to determine first what their property regime is. If they have agreed on a marriage settlement and it is provided therein that they are governed by the regime of complete separation of property, then the provisions thereof must simply be complied and there is no need for your brother-in-law to secure a court order for him to control the pieces of property that he has acquired throughout their marriage.

On the other hand, if they have not agreed on a marriage settlement prior to the celebration of their marriage or the regime that they have agreed upon is void, then the regime of absolute community of property shall govern them. (Article 75, Id.) Accordingly, your brother-in-law may file a petition in court for judicial separation of their property or for authority to be the sole administrator of the absolute community. (Article 135 (4) in relation to Article 101, Id.) If he and your sister, however, will come to terms as to the separation of their pieces of property, they may jointly file a verified petition for the voluntary dissolution of their absolute community and for the separation of their common property. (Article 136, Id.) Once the petition is granted by the court, the final judgment thereto, together with the petition, shall be recorded in the proper local civil registries and registries of property. (Article 139, 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


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