PROJECT II

SEPARATION OF PROPERTY REGIME

REVIEWER

Submitted by:

Dayap, April Marie

Villafuerte, Mary Joselle

Lumacad, Cristy

Fernandez, Pauline August

Macasa, Almena

Nash, Regina

Ceballos, Jesus

Corong, Luzviminda

Mulit, Mark Anthony

Balucanag, April Gem

Caballero, Jeremiah

Misterio, John Kessler

Apurada, Kathryn
 PROJECT II. SEPARATION OF PROPERTY REGIME

I. JUDICIAL SEPARATION OF PROPERTY

1. Valid causes for Judicial Separation of Property

Under Article 135 of the Family Code, any of the following shall be considered sufficient cause for
judicial separation of property:
(1) Civil interdiction of the spouse of petitioner;
(2) The spouse of the petitioner has been judicially declared an absentee;
(3) Loss of parental authority of the spouse of the petitioner has been decreed by the court;
(4) The spouse petitioner has abandoned the latter or failed to comply with his or her
obligations to the family as provided in Article 101;
(5) The spouse granted the power of administration in the marriage settlement has abused the
power; and
(6) The spouses have been separated in fact for at least one year and reconciliation is highly
improbable.

In cases (1), (2) and (3), presentation of final judgment against the guilty or absent spouse is
sufficient for the grant of separation of property.
In cases (4) to (6), there must be proof of the cause or ground for separation of property.

2. Legal Effects for Judicial Separation of Property

The Effects of Separation of Property between the spouses are as follows (Article 136 139 FC):

(1) The absolute community or conjugal partnership of the spouses is dissolved and liquidated;
(2) Each spouse shall thereafter have exclusive management, ownership, and disposition of all
his or her earnings and the fruits of his or her separate property.
(3) The liability of the spouse to creditors shall, however, be solidary with their separate
properties.
(4) The mutual obligation of the spouses to support each other continues except when ther is
legal separation between them; and
(5) Rights previously acquired by creditors are not prejudiced.

3. When may spouses revive their former property regime?

Under Article 141 of the Family Code, the spouses may, in the same proceedings where
separation of property was decreed, fi le a motion in court for a decree reviving the property
regime that existed between them before the separation of property in any of the follow- ing
instances:
1) When the civil interdiction terminates;
2) When the absentee spouse reappears;
3) When the court, being satisfied that the spouse granted the power of administration in the
marriage settlements will not again abuse that power, authorizes the resumption of said
administration;
 4) When the spouse who has left the conjugal home without a decree of legal separation
resumes common life with the other;
5) When the parental authority is judicially restored to the spouse previously deprived thereof;
6) When the spouses who have separated in fact for at least one year, reconcile and resume
common life; or
7) When after voluntary dissolution of the absolute community of property or conjugal
partnership has been judicially decreed upon the joint petition of the spouses, they agree to the
revival of the former property regime

4. Procedures for Revival of Former Property Regime.

A. The agreement to revive the former property regime shall be executed under oath and shall
specify:
i. The properties to be contributed anew;
ii. Those to be retained as separate properties; and
iii. The names of all their known creditors with their address and amount of liability.

B. The agreement mentioned in the preceding number together with the motion for its approval
shall be filed with the court, with copies furnished to the creditors.

C. After due hearing, the court, through an order, shall take measures to protect the interest of
creditors and such order shall be recorded in the proper registry of property.

Note: The recording of the order shall not prejudice any creditor not listed or notified unless the
debtor- spouse has sufficient properties to satisfy the creditor's claim.

5. May a 2nd voluntary separation be granted after revival of former regime?

No. In case where the previous property regime was judicially separated on the basis of the
voluntary agreement of the parties, the parties can revive the same upon petition in court (Art
142 [7]). However, no voluntary separation of property may thereafter be granted. If anyone of
the spouses gives cause for involuntary separation under Article 135, the proceedings for judicial
separation invoking any of the grounds in Article 135 can be initiated and a proper decree of
separation granted.

6. Will reconciliation of spouses automatically revive former property regime?

No, the reconciliation of spouses will not automatically revive the former property regime. As
provided by Article 141 of the Family Code, the spouses may file a motion in court for a decree
reviving the property regime that existed between them before the separation of property. The
revival of the former property regime shall be governed by Article 67.

However, under the Article 108 of the Civil Code, the reconciliation of the spouses results in
the automatic revival of their conjugal partnership or other property regime that prevailed
between them prior to the legal separation without prejudice to acts and contracts executed by
the spouses during their separation.
 7. Cases when Court may transfer administration of all classes of Exclusive Property of one spouse
to the other.

Under Article 142 of the Family Code, the administration of all classes exclusive property of
either spouse may be transferred by the court to the other spouse:
(1) When one spouse becomes the guardian of the other;
(2) When one spouse is judicially declared an absentee;
(3) When one spouse is sentenced to a penalty which carries with it civil interdiction;
(4) When one spouse becomes a fugitive from justice or is hiding as an accused in a criminal
case. If the other spouse is not qualified by reason of incompetence, conflict of interest, or
any other just cause, the court shall appoint a suitable person to be the administrator.

II. SEPARATION OF PROPERTY BY ANTE-NUPTIAL AGREEMENT

1. Concept of separation of property regime

Under this regime, the spouses retain ownership, management, and control of their properties
before the marriage and those acquired during the marriage, together with their earnings and
fruits and accessions of their separate properties, and each of them is responsible for his or her
liabilities, with each spouse contributing to the family expenses proportionately with their
income or value of their properties.

2. Advantages and disadvantages of separation of property regime.

Advantages
(1) There are no common properties;
hence, no liquidation.
(2) Neither spouse can be accused of
being interested in the other's
properties.
Disadvantages
(1) This system is based on distrust.
(2) There will be little trouble with reference to
personal expenses, but in view of the fact that
each spouse shall proportionately bear the
family expenses, trouble at this point might as
well be expected.
(3) Aside from the system of complete separation of
property, there can also be a partial separation
of property. In the latter case, it can be said
that the conjugal partnership of gain or the
absolute community also exist.
(4) It may lead to constant disputes between the
spouses in the sharing of family expenses.
(5) It is inconsistent with the community of life and
interests which a marriage is supposed to
create.
(6) It is ordinarily unfavorable to the wife whose
duties in the home give her less opportunity to
earn for herself.
(7) It is against the custom of Filipinos which is
trust and sharing between the spouses.

3. May the separation of property regime of spouses established in their marriage settlement be
converted into another regime during their marriage?
 No. Separation of Property cannot be converted to any other regime during the marriage. While
the absolute community regime or the conjugal partnership system can be converted during the
marriage with court approval into a separation of property between the spouses, the regime of
complete separation of property, once established in their marriage settlement before the
marriage, cannot be changed or converted into any other regime during the marriage as there is
no provision of law allowing such conversion.

4. What will govern the regime of separation of property agreed by the spouses in the marriage
settlement?

A regime of separation of property agreed upon by the spouses is governed by:

(1) The provisions of their marriage settlement;

(2) The provisions of Chapter 6 of Family Code by way of suppletory application. In the event
the contracting parties want their property relationship shall be governed by the regime of
separation of property, they have to enter into a valid marriage settlement prior to the
marriage stipulating such regime. The marriage settlement shall principally govern the
regime of separation of property. The family Code shall only be suppletory in character.

5. Extend and kind of separation of property regime.

1. As to extent:
a. total
b. partial - in this case, the property not agreed upon as separate shall be absolute community
property unless the parties agree otherwise.

2. As to kinds of property
a. present property
b future property
c. both present and future property

6. What is default or automatic status of property not agreed upon as separate property?

Under Article 144 of the Family Code, xxxx the property not agreed upon as separate shall
pertain to the absolute community.

7. What properties of the spouses may be covered by the separation of property regime?

The following properties of the spouses may be covered by the separation of property regime,
to wit:
(1)Present property;
(2)Future property; and
(3)Both present and future property.
8. Rights of each spouse under the separation of property regime.

The rights of each spouse under the separation of property regime as provided in Article 145 of
the Family Code are as follows:
(1) Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate
estate, without need of the consent of the other.
(2) 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.

9. What is the liability of each spouse for Family Expenses under the separation of property
regime?

As a general rule, both spouses shall bear the family expenses in proportion to their income. In
case of insufficiency or by default, to the current market value of their separate property.

10. What is the liability of each spouse to Creditors for family expenses under the separation of
property regime?

However, the liability of the spouses to creditors for family expenses shall be solidary.