Art. 88.

The absolute community of property between spouses shall commence at the precise moment that the marriage is celebrated. Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void. (145a) COMMENT: In the absence of a marriage settlement providing for another kind of matrimonial property regime, the spouses shall be governed by the absolute community regime. (Under the Civil Code, the relative community or conjugal partnership of gains constituted the general rule.). Art. 89. No waiver of rights, interests, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property. When the waiver takes place upon a judicial separation of property, or after the marriage has been dissolved or annulled, the same shall appear in a public instrument and shall be recorded as provided in Article 77. The creditors of the spouse who made such waiver may petition the court to rescind the waiver to the extent of the amount suffi cient to cover the amount of their credits. (146a) COMMENT: Waiver of the rights, interests, shares, and effects can be made during the existence of the marriage only in a judicial separation of property (said judicial separation of property of course takes place also in a legal separation). Art. 90. The provisions on co-ownership shall apply to the absolute community of property between the spouses in all matters not provided for in this Chapter. (n) COMMENT: All matters not covered by the Family Code are governed by the rules on co-ownership. Section 2. What Constitutes Community Property Art. 91. Unless otherwise provided in this Chapter or in the marriage settlements, the community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter. (197a) COMMENT: Community property consists of all property owned by the spouses at the time of the marriage celebration or thereafter acquired. Art. 92. The following shall be excluded from the community property: (1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they shall form part of the community property; (2) Property for personal and exclusive use of either spouse; however, jewelry shall form part of the community property; (3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property. (201a) COMMENT: (1) Note that even in the system of absolute community, there are also separate (separately-owned) properties. (2) Reasons for the Separate Properties Mentioned in the Article (a) Par. 1 The desire of the gratuitous giver must be respected. (Re: the exception) (b) Par. 2 The reason here is obvious. (c) Par. 3 This is to protect the rights or legitimes of the children or other descendants of the prior marriage. Said children and other descendants must be legitimate. (3) Problem A husband and wife were living under the system of absolute community. A friend donated a parcel of land to the husband. Who owns the land? Answer: The husband in view of the gratuitous title. Art. 93. Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom. (160a) COMMENT: (1) Evidence Must Be Shown But before the presumption applies, evidence must be shown that the disputed properties have been acquired during the marriage. (2) Case Torrela v. Torrela 93 SCRA 391 Knowing that TCTs (or Transfer Certifi cates of Title) are insuffi cient, the mere fact showing that the properties in question have been registered in the name of Emilio Jocson married to Alejandra Poblete is no proof that said properties have been acquired during the duration of the marriage. Be it noted that registration and acquisition are entirely different things. Registration does not confer title but merely confi rms one already existing. Section 3. Charges Upon and Obligations of the Absolute Community Art. 94. The absolute community of property shall be liable for: (1) The support of the spouses, their common children, and legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; (2) All debts and obligations contracted during the marriage by the designated administrator-spouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other; (3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited;

(4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property; (5) All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family; (6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement; (7) Antenuptial debts of either spouse insofar as they have redounded to the benefi t of the family; (8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; (9) Antenuptial debts of either spouse other than those falling under paragraph (7) of this Article, the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a quasi-delict, in case of absence or insuffi ciency of the exclusive property of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and (10) Expenses of litigation between the spouses unless the suit is found to be groundless. If the community property is insuffi cient to cover the foregoing liabilities, except those falling under paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate properties. (161a, 162a, 163a, 202a-205a) COMMENT: (1) Par. 1 The children of either spouse must be legitimate for the support to be charged against the absolute community. (The illegitimate children of either spouse must also be supported, but not by the absolute community.) (2) Solidary Liability If the community property is not enough, the spouses are liable solidarily with their separate properties. Exception the liabilities referred to in Par. 9 of the Article. Art. 95. Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of gambling, whether permitted or prohibited by law shall be borne by the loser and shall not be charged to the community but any winnings therefrom shall form part of the community property. (164a) COMMENT: The gambler bears the losses, but the winnings shall go to the absolute community. Section 4. Ownership, Administration, Enjoyment and Disposition of the Community Property Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husbands decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within fi ve years from the date of the contract implementing such decision. In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors. (206a) COMMENT: (1) General Rule Joint administration and enjoyment by both the husband and wife. (2) Exception In case of disagreement, the husband will prevail, subject to recourse to the court by the wife for the proper remedy. (Prescriptive period fi ve years from the date of the contract implementing the husbands decision.) (3) Rule If One Spouse is Incapacitated or Otherwise Unable to Participate The 2nd paragraph of the Article applies. [NOTE: That there are different rules for: (a) administration (b) disposition or encumbrance This (b) needs either: 1) the consent of the other spouse, or 2) the authorization by the court.] (Effect of non-consent and non-authorization the contract shall be VOID, without prejudice to future marital consent or judicial authorization.) (4) Case Roxas v. CA GR 92245, June 26, 1991 Leasing a realty is encumbering the same. Art. 97. Either spouse may dispose by will of his or her interest in the community property. (n) COMMENT: While the community subsists, either spouse may not dispose inter vivos of his interest to the extent of 1/2 unless otherwise stipulated in the marriage settlement. For that matter, he may dispose of such interest only by will (a mortis causa act) observing: (1) the formalities of a will; and (2) the provisions on legitimes and free portion. Par. 1 Brought to the Marriage (a) Example: a house brought by a wife into the marriage. (b) Prior to her marriage, a woman purchased land from a minor. The seller reached the majority age when the woman was already married, but he did not ask for the annulment of the sale. Is the land paraphernal (exclusive property of the wife) or conjugal? ANSWER: Paraphernal, for it was purchased by the exclusive money of the wife even prior to the marriage.

While it is true that the defect of vitiated consent was cured only during the marriage, this fact should not be considered important, for in no case were conjugal funds used. Besides the virtual ratification of the contract cleanses it of any defect from the very beginning. (c) Prior to her marriage, a woman purchased a piece of land on the installment plan. Part of the purchased price was paid prior to the marriage, while the balance was paid during the marriage. All receipts were issued in the name of the wife. Is the land paraphernal or conjugal? ANSWER: Paraphernal since it was purchased even prior to the marriage. However, she must reimburse the conjugal partnership for whatever amount was used from the conjugal fund for the payment of the balance. Said balance must be deemed to have come from the conjugal funds because no evidence was given to show that said balance was paid from paraphernal funds. (Lorenzo, et al. v. Nicolas, et al., L-4085, July 30, 1952). Note, however, that homesteads the right to which is perfected after the celebration of the marriage are regarded as conjugal property. (Ocampo v. Delizo, L-32820, Jan. 30, 1976). (d) Property alienated before the marriage but subsequently reacquired during the existence of the marriage by say annulment of the previous contract, by revocation, or by rescission. (Santos v. Bartolome, 44 Phil. 76). (3) Par. 2 Acquired During the Marriage by GRATUITOUS (Lucrative) Title (a) Examples 1) Property inherited during the marriage. (Alvaran v. Marques, 11 Phil. 263). 2) Remissions and donations. BUT NOT: 1) Hidden treasure (conjugal). (Art. 117[4], Family Code). 2) Those acquired by occupation like fi shing and hunting. (Art. 117[5], Family Code). (b) Gratuities and pensions 1) If given gratis by the government because of previous work (like the retirement pay of a provincial auditor (Mendoza v. Dizon, L-387, Oct. 25, 1956), or that of a Justice of the Peace (Eclar v. Eclar, CA, 40 O.G. 12th Supp. No. 18, p. 86), this is a gratuity and should be considered as separate property. This is true even if the amount is computed on the basis of months or years of service. (Mendoza v. Dizon, supra). 2) If no liberality on the part of the government is involved, and what are being given are merely accumulated savings or deductions, this would be a PENSION and therefore considered as conjugal, for then it was money really earned during the existence of the marriage. (See Eclar v. Eclar, CA, 40 O.G. 12th Supp. No. 18, p. 86). Being conjugal it ought to be administered by the husband even if he is living separately from his wife. (Atienza v. Lopez, L-18327, Aug. 24, 1962). (c) Unearned increment (such as increase in the value of the paraphernal property) belongs to the spouse concerned. (d) Damage because of an accident 1) If for physical or moral damages of the injured spouse paraphernal 2) If loss of expected salary, or for hospitalization expenses conjugal. (See Lilius v. Manila Railroad Co., 62 Phil. 56). (4) Par. 3 Acquired by Right of Redemption (a) Here the thing to fi nd out is: Who had the right to redeem? Whoever had the right gets the property redeemed. The source of the money is not important. Santos v. Bartolome 44 Phil. 76 FACTS: Before her marriage, a wife sold a piece of land to A with the right to repurchase it from A. In other words, she gave herself the right of redemption with reference to the land. During her marriage, the time for redemption came, but she did not have money. So she and her husband redeemed the parcel of land with conjugal funds, and they were able to get back the land. Who owns the land, the wife or the conjugal partnership? HELD: The wife owns the land because she acquired it by right of redemption of her own paraphernal property. However, since conjugal funds were used to effect the redemption, the wife is now indebted to the conjugal partnership for the amount of the repurchase money used. The community estate or the conjugal partnership thus becomes the creditor of the amount thus expended. In the liquidation of the conjugal property, account should be taken of this obligation. Alvarez v. Espiritu L-18833, Aug. 14, 1965 If a husband redeems the paraphernal property of his deceased wife with his own money, he does not become exclusive owner thereof. Ownership belongs to the heirs of the wife (this would of course include the surviving spouse). Gefes v. Salvio 36 Phil. 221 FACTS: A husband owned two parcels of land during his marriage. Later the husband died. But since he had personal debts before his death, the two parcels of land were sold at public auction to pay for his debts. Meantime, his wife had married for the second time. She authorized her second husband to acquire with her own money, and in her behalf, the two parcels of land which were being auctioned off. The second husband bought the parcels in question. Later, without any authorization from the wife, the second husband sold the two parcels of land. What was the effect of the sale made by the second husband? HELD: The sale made by the second husband was not valid because without the authorization from his wife, he sold her paraphernal property. The two parcels of land could not be considered anymore as the property of the fi rst husband for the wife had subsequently acquired them with her own money through her second husband. The purchase by the second husband was indeed valid since it was authorized, but his subsequent sale thereof cannot be considered as valid for want of proper authorization. [NOTE: But is it not true that what had been redeemed here was the separate property of the husband, and therefore the husbands heirs should be entitled to

the property? True, redemption was made of the separate property of the husband but this redemption took place after the death of the husband, and the widow had no obligation at all to redeem such property. What she did was purely voluntary on her part.]. Consunji v. Tison 15 Phil. 81 FACTS: During the marriage, the husband sold his property with the right to repurchase the same after a certain period of time. The husband was not able to repurchase it because he died. Afterwards, the widow purchased the property of her dead husband. The heirs of the husband now claim the property as their own. Who owns the property, the wife, who purchased it with her own money, or the heirs of the late husband? ANSWER: The owners of the property are the heirs of the husband, subject to a lien in favor of the wife for the money she used in redeeming the property. [NOTE: Does this not contradict the doctrine laid down in Gefes case? No, there is really no contradiction. In Consunji case, the right to purchase was acquired by the husband when still alive, and so the widow was merely exercising the right previously given in favor of the husband; and thus the property does not belong to her. In Gefes case, the right of redemption was not given to the husband during his lifetime. She was therefore exercising a right exclusively hers. Thus, the property should be considered hers.]. (b) During the marriage, a husband registered under his own name the property which really belonged to the wife as her separate or paraphernal property. Does this make the property now the exclusive property of the husband? ANSWER: No, the property is still the wifes. But since it is registered in the name of the husband, the proper remedy for the wife is to compel the husband during his lifetime, or his heirs after his death, to execute a deed of conveyance transferring the registered title to the land to the wife or her assigns (those to whom she may have given or assigned the property). (Consunji v. Tison, 15 Phil. 81). [NOTE: The right to compel the conveyance exists however only while the property is still registered under the name of the husband or the heirs, and not under the name of a stranger.]. Rosete v. Sheriff of Zambales 95 Phil. 560 FACTS: A husband was convicted, and to satisfy his civil liability since he did not possess suffi cient separate property, four parcels of land belonging to the conjugal partnership were sold. Out of the P1,385 the husband was supposed to pay, only a portion was paid from the proceeds of the sale and there remained a balance of P793. In the meantime, two of the parcels were redeemed by the wife with money she had obtained from her father. Later, the sheriff attached said parcels and sold the same on execution to satisfy the balance. The wife now wants to cancel the sale on the ground that the redeemed parcels are to be considered paraphernal, and should therefore, not have been levied upon. HELD: The sale should be annulled because the parcels are paraphernal. The wife redeemed the property, not in behalf of her husband, but in her own behalf as a successor in interest in property. Having been obtained by her own right of redemption with money belonging exclusively to her said property becomes paraphernal. It thus ceased to be conjugal property; it cannot be levied on by virtue of a judgment affecting exclusively the personal liability of the husband. (5) Par. 3 Acquired by EXCHANGE With Other Property Belonging to Only One of the Spouses (a) Exchange here generally means barter, not purchase or sale. Example: If a wife brings a paraphernal Jaguar car, which she exchanges during the marriage with a diamond ring, the ring is also paraphernal. But if the car is traded in for a new car, with the additional price coming from the conjugal funds, the new car is conjugal without prejudice to the trade-in value of the old car. (See Abella de Diaz v. Erlanger & Galinger, 59 Phil. 326). (b) A wife received an inheritance of certain property from her father when she was already married. Later, she bartered said property with land. Who owns the parcel of land? ANSWER: The wife is the owner. Property acquired by barter or exchange with paraphernal property belongs to the wife. (Lim v. Garcia, 7 Phil. 320). (c) A wifes paraphernal house, insured prior to the marria ge, was destroyed by fi re, and the wife was able to collect the insurance indemnity. Later, the land on which said house had been built was expropriated by the government. Questions: 1) Who owns the insurance indemnity? 2) Who owns the expropriation indemnity? ANSWER: In both cases, the wife for the indem-nities given merely substitutes for the house and the land. (See 9 Manresa 567). (6) Par. 4 Purchased With Exclusive Money of Either Spouse Here who makes the purchase is not important; what matters is whose money was used. (Rivera v. Batallones, C.A., 40 O.G. 2090). Land bought partly with paraphernal and partly with conjugal funds are partly paraphernal and partly conjugal. (De Padilla v. Paterno, L-4130, Sep. 30, 1953). If the wife acquired land with her own funds, and the husband never asserted any right thereto and there is notarial proof, it is evident that the land is hers. (Hartske v. Frankel and Phil. TrustCo., 54 Phil. 156). And this is true even if she be described as a wife, hence, if the title reads X, married to Y. X is the owner, the reference to marriage being merely descriptive of her civil status. (Gonzales v. Miller, 69 Phil. 340).