• Wife can dip into joint account only after proving husband ‘really’ left her

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    My husband and I have a joint savings account in a bank. I want to withdraw the money so that my eldest son could go to college. I understand that because it is a joint account, I need the consent of my husband to make a withdrawal. Unfortunately, I could no longer locate him. He abandoned us two years ago, and we have not heard from him since. . .What should I do?
    Elena

    Dear Elena,
    Under the Family Code, the default property regime of the spouses is the absolute community of property. With respect to the scope of pieces of property considered as community property of the spouses, the law states that it consists of all the pieces of property owned by the spouses at the time of the celebration of the marriage or acquired thereafter (Art. 91, Family Code [FC]). The rule, however, is not absolute such as when there is a marriage settlement providing otherwise.

    Other exceptions include property acquired during the marriage by gratuitous title by either spouse, property for personal and exclusive use of either spouse other than jewelry, and property acquired before the marriage by either spouse who has legitimate descendants by a former marriage (Art. 92, FC). It does not appear that your joint savings account belongs to any of the exceptions mentioned. Hence, the joint savings account you and your husband maintain in the bank can be considered community property.

    Now, according to the law, the administration and enjoyment of community property belongs to both spouses jointly, but in the event that one spouse is incapacitated or is unable to participate in the administration of the common pieces of property, the other spouse may assume sole powers of administration (Art. 96, FC). In line with this provision, the law grants an aggrieved spouse the right to petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community should he or she be abandoned by the other spouse without just cause or should the latter fail to comply with his or her obligations to the family (Art. 101, FC).

    Please take note, however, that abandonment has a definite meaning in law. Article 96 of the Family Code states that “a spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.” In one case, the Supreme Court interpreting a similar provision found in the Civil Code explicitly held that there must be real abandonment, not mere separation. It must not only be physical estrangement but also amount to financial and moral desertion. There must be absolute cessation of marital relations and duties and rights, with the intention of perpetual separation (Dela Cruz vs. Dela Cruz, 22 SCRA 333).

    From the foregoing, it is clear that if you can prove “real” abandonment, then you may file a petition in court to ask for sole administration of your property regime and ask the court for authorization to withdraw money from your joint savings account to finance the education of your eldest son.

    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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