CO-OWNERSHIP

A lot of countries, as discussed, have legalized same sex marriage and it is

presumed that it will take time before the passage of law in the Philippines. Be that as it
may, property relations of homosexuals and/or in the same sex relationships should be
recognized. Veritably, there is an existing law which governs the property relations
between couples of the same sex. Its either by mutual agreement embodied in a
contract, which has the force and effect of law as between the parties or by applying the
general laws, including the principle of co-ownership.
The New Civil Code provides under Chapter 7, Art. 484, that there is coownership whenever the ownership of an individual thing or right belongs to different
persons and in default of contracts, or of special provisions, co-ownership shall be
governed by the provisions of this Title. 1
Co-ownership, as defined by Sanchez Roman refers to the common right of dominion
which two or more persons have in a spiritual part of a thing, which is not materially or
physically divided. 2 Likewise, co-ownership, according to Manresa, is a manifestation of
the private right of ownership which is exercised by two or more owners and the
undivided thing or right to which it refers is one and the same, instead of being
exercised by the owner exclusively. 3
As to sources, co-ownership may be created through the following;
(1) Law (a) If by will of their owners two things of the same kind or different
kinds are mixed or if by the will of only one owner, but in good faith, two things
of the same or different kinds are mixed or confused. 4 (b) When a man and
1 Art. 484, New Civil Code
2 Rabuya, Elmer T., Property, 2008, p. 272.
3 Rabuya, Elmer T., Property, 2008, p. 272.
4 Rabuya, Elmer T., Property, 2008, p. 279

woman who are capacitated to marry each other, live exclusively with each
other as husband and wife without the benefit of marriage or under a void
marriage, the property acquired by both of them through their work or industry
shall be governed b the rules on co-ownership. Likewise, in cases of
cohabitation not falling under Article 147 of the Family Code, only the
properties acquired by both of the parties through their actual joint
contribution of money, property, or industry shall be owned by them in
common in proportion to their respective contributions. 5
(2) Contract An agreement to keep the thing undivided for a certain period, not
exceeding ten years, shall be valid and the term may be extended by a new
agreement. 6
(3) Succession When there are two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such heirs, subject to
the payment of debts of the deceased. Testator may prohibit the partition of
the estate among the heirs for a period not to exceed twenty (20) years. 7
(4) Fortuitous events or chance If two things of the same kind or different kinds
are mixed by chance and the things are not separable without injury. 8
(5) Occupancy When two (2) or more persons catch a wild pig or get forest
products or when a hidden treasurer is accidentally discovered by a stranger,
who is not a trespasser, on the land of another. 9
By way of analogy, the application of co-ownership will depend on its source. The
Family Code of the Philippines fixes a special kind of property relation (co-ownership)
between adulterous partners. Article 148 provides that a man and a woman living
together as husband and wife, without benefit of marriage but are not capacitated to
5 Rabuya, Elmer T., Property, 2008, p. 279
6 Rabuya, Elmer T., Property, 2008, p. 279
7 Rabuya, Elmer T., Property, 2008, p. 280
8 Rabuya, Elmer T., Property, 2008, p. 280
9 Rabuya, Elmer T., Property, 2008, p. 280

marry because they are in an adulterous relationship, or in a bigamous or polygamous

marriage, or in an incestuous void marriage (Article 37), or in a void marriage by reason
of public policy (Article 38), or one or both parties is under 18 years of age, co-own
properties in proportion to their respective contributions of money, property, or industry.10
The presumption is that their contributions are equal so long as there is proof of
actual contribution. Nonetheless, if the contributions are not equal, the presumption of
equal sharing is defeated.
Since same-sex couples cohabiting is akin to living together as married couples
but outside a valid wedlock and is incapacitated to marry since they are of both sexes (a
man and a man), it is safe to presume that this proviso protects and safeguards equal
rights of same sex couples, particularly with regard to property relations. This is more in
keeping with the constitutionally guaranteed right of equal protection of laws available to
everyone without disregard to his sexual orientation and/or preference.

10 Article 148, par.1 of the Family Code provides that: "In cases of cohabitation not falling under the
preceding Article, only the properties acquired by both of the parties through their actual joint contribution
of money, property, or industry shall be owned by them in common in proportion to their respective
contributions. In the absence of proof to the contrary, their contributions and corresponding shares are
presumed to be equal. The same rule and presumption shall apply to joint deposits of money and
evidences of credit."