Voluntary separation of properties

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Persida Acosta

Persida Acosta

Dear PAO,
My wife and I are having heated arguments recently because of our never-ending dispute over the management of our conjugal properties. To resolve this matter, we have decided that we will try to separate her properties from mine. We have no marriage settlement but we’d like to put this new agreement of separating our properties in writing and I’m wondering how we can formalize this because I was told that the properties of a married couple are legally intended to be shared with one another. Right now we realized that sharing is not the best option for us and that is why we need and have agreed to separately control our properties. Please advise us how we can legally go about this.
Felix

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Dear Felix,
You are correct in saying that married couples are bound to share each other’s properties. The law dictates that in the absence of a marriage settlement, the regime of absolute community of property shall govern their administration of properties wherein the property of one spouse is owned in common by the other spouse (Article 91, Family Code of the Philippines).

However, the law also allows for the dissolution of this mode of joint administration of properties. There are two ways that you can go about this, either through a judicial separation of properties based on sufficient grounds or through a voluntary separation of the absolute community of property. In both cases, the separation of property between spouses shall not take place unless there is a judicial order to that effect (Article 134, Family Code of the Philippines).

The dissolution of the conjugal property through judicial separation based on sufficient causes involves and requires the existence of specific grounds enumerated by law under Article 135 of the Family Code. However, for the purpose of answering your question, what applies to your situation is the voluntary separation of properties since you have stated that you and your wife mutually agreed for the separation of your community properties.

For the voluntary separation of the conjugal properties, the law states that:

“Art. 136. The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties.

All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest.”

In filing such a petition, you and your wife need not state any grounds for it since mere agreement between the two of you is sufficient. On the other hand, the said petition may contain the agreed manner of division of your properties as long as it is not contrary to law and public policy (Mel Sta. Maria, Persons And Family Relations Law, 2010). Lastly, as seen from the above cited law, while you and your wife may file a petition for the voluntary separation of your properties, there is a requirement to notify your creditors, if any, in recognition of your obligations to them.

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