• Spouses can seek separation of property

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    I have been married to my husband for almost five years. While we both have our own jobs and a steady income, my husband has made it his responsibility to support his parents and siblings in the province. I am also six months pregnant with our second child. There have been moments that my husband placed my child and I in the least of his priorities. He basically controls our money, and he told me that I cannot complain as my income is his income because our property is conjugal. Is there any way for me to be able to enjoy my own income and properties exclusively? I am afraid that all of our savings will just go to his parents and siblings and none for our family. I just want to make sure that my children will still be prioritized despite their father’s other obligations.
    Theresa
    Dear Theresa,

    If you had no ante-nuptial agreement on your property regime, Article 75 of the Family Code states that the system of absolute community of property shall prevail. Absolute community shall consist of all the properties owned by the spouses at the time of the celebration of the marriage or those acquired thereafter (Article 95, Family Code).

    However, some properties are excluded from the community property of spouses. These are enumerated in Article 92 of the Family Code and consist of (1) the property acquired during the marriage by gratuitous title by either spouse and the fruits and income thereof, (2) property for the exclusive use of either spouse, except for jewelry, and (3) property acquired before the marriage by either spouse who has legitimate descendants (children, grandchildren, and the like) by a former marriage, including its fruits and income.

    The law allows a spouse to seek dissolution of the absolute community regime only through a court order. Article 143 of the said law states that, “In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may be voluntary or for sufficient cause.”

    You and your husband may agree to voluntarily file a petition for the dissolution of your absolute community and for separation of your common property. The law does not require that you seek separation of your property for cause if it is a voluntary petition.

    However, if it is not voluntary, it must be for at least one of the causes enumerated in Article 135 of the Family Code. Therefore, if you and your husband do not agree on having your community property separated, you must look at the causes enumerated in Article 135 and see if at least one of the causes applies to you. These are: “Art. 135. Any of the following shall be considered sufficient cause for judicial separation of property:

    (1)    That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;

    (2)    That the spouse of the petition has been judicially declared an absentee;

    (3)    That the loss of parental authority of the spouse of petitioner has been decreed by the court;

    (4)    That the spouse of the petitioner has abandoned the latter or failed to comply with his or her obligations to the family as provided for in Article 101;

    (5)    That the spouse granted the power of administration in the marriage settlements has abused that power; and

    (6)    That at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable.”

    We hope that we were able to enlighten you on the matter. 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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