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Home Legal Advice DearPao Administration and handling of properties in the current and second marriage

Administration and handling of properties in the current and second marriage


Dear PAO,
My first wife Myrna and I married in 2010. But in 2015, she died of cancer. Then late last year, I married Myra. Due to the depression and longing I felt for my first wife back then, however, I was not able to arrange for the liquidation of our properties. I would like to be enlightened on the legal effects on my rights as to the administration and handling of the properties of my current marriage with Myra. Further, I would like to know how Myra and I could administer our properties.

Dear Carlo,
As a rule, upon termination of the marriage by reason of death, the community property between spouses should be liquidated.

Considering that you’ve mentioned that you were previously married to another, and that you failed to settle and liquidate your conjugal properties after your first wife’s demise, a mandatory regime of complete separation of property will govern the administration of your property with Myra, your current and second wife. This is in accordance with Article 103 of the Family Code which governs the property relations between spouses, which is written in this wise:


“Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

“If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void.

“Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (n)” (Emphases supplied)
As can be gleaned from the facts given and the aforementioned provision of law, the community property from a previous marriage is terminated by death, such as in your case; and is required to be liquidated in order to identify and separate your share from the property left by your wife. Prior to the completion of the liquidation and partition of you and your wife’s community property, any disposition of the said property is void according to law since you have yet to physically identify which part specifically belongs to you or your wife.

Further, it bears stressing that your failure to liquidate your previous community property causes the application of the regime of complete separation of property in your second marriage with Myra. This is required by law in order to protect the unliquidated properties of your first wife by preventing their inclusion to the properties of your new marriage.

On the other hand, as to the manner of administration of properties under this regime of complete separation of property, Article 45 of the Family Code specifically provides that:
“Art. 145. Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. (214a)”
“Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties.

“The liabilities of the spouses to creditors for family expenses shall, however, be solidary. (215a)” (Emphases supplied)

Applying the foregoing provisions of law in your current situation, it simply states that under a complete separation of property, you get to exclusively keep and manage the properties and earnings which you brought into your current marriage without interference from your second wife, Myra. However, with regard to the payment of family expenses, both you and Myra will share on the charges, in proportion to your income or to the value of your separate properties. In addition to this, you and Myra will also be solidarily liable to your creditors with regard to the family expenses.

Simply put, while you and Myra will have a complete separation of property, you separately enjoy each of your own properties, and both of you will still share the obligation in the payment and charges for your family expenses.

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. 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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