09/15/2015

Article 68, 70 and 71 enumerates the rights and obligations of

husband and wife. Under Article 68, the husband and the wife
are obliged to live together. Its the first obligation and right to
live together, the right to marital consortium. The right and
obligation to live together, observe mutual love, respect and
fidelity, and render mutual help and support. As you can see,
the rights and obligations of the husband and wife are always
premise on mutuality. Its a two way affair, its never one
sided. So when you demand for love, respect and fidelity, be
sure youre also able to do and gave the same to the other
because its always based on mutuality.
Under Articles 70 and 71, there are also jointly liable for the
support of the family and their children and maintenance of
the household. And also, jointly and severally liable for the
management of the family, administration of the household
and common and conjugal properties. So its always based on
joint rights to administer and manage family affairs. Take note
that except for the obligation to support, the rights and
obligations of spouses are personal and voluntary, therefore
they cannot be enforced by judicial or court action. So if you
feel that the other commits a breach of his marital obligation,
because his being unfaithful to you, the obligation to be
faithful to the other is a violation to that obligation to be
faithful. If you feel aggrieved by the infidelity of the other, you
cannot go to court and ask for an order to direct the other to
be faithful to you under pain of contempt because its a
personal and voluntary obligation on the part of the other.
Although there are other remedies but not compulsion. In the
same manner if the other spouse, for one reason or another
finds it awful to make love to you, you cannot go to court and
ask for an injunction to compel your spouse to sleep with you.
Because as Ive said, its a personal and voluntary obligation
imposed on either spouse. Im not saying there are no other
remedies but Im saying it cannot be imposed on the other
under pain of contempt.
Except for support, because support is indispensable for
sustenance. If one spouse unjustifiably refuses to give support
to the other, the aggrieved spouse can always go to court and
file action for support. If the court finds reason to order the
other to give support, an order to support may be issued by
the court and the other may be compelled to give support
under pain of contempt. This is the only way where a spouse
may be jailed for complying with his/her marital obligation.
This obligation may be enforced by a court action to compel
the non-complying spouse to perform his/her marital
obligation. The rest, it cannot be compelled by court action.
But there are various remedies available for non-compliance
with the marital obligations. What are the remedies? If your
spouse commits breach of the marital obligations
contemplated under Articles 68, 70 and 71, there are so many.
Under Article 72, enumerates remedies but these are not
exclusive remedies, there are remedies available in other
existing laws other than the family code. But under Article 72,
the aggrieved spouse may resort to the following remedies:
1. Nullity of the marriage. Like article 36, where its
precisely grounded on the inability of the other
spouse to comply with the marital obligation. You
may go to court and file an action for the declaration
of nullity of marriage. Thats one remedy, if you can
afford to let your spouse go.
2. If the other spouse commits acts which tend to bring
dishonor, danger or injury to the family and the
household, the aggrieved spouse may ask for
receivership. For example, if the other spouse is
dissipating family assets, you want to prevent him
because hes the one administering the family
business but hes dissipating the business by
mismanagement. You can always go to court and ask
for receivership. This is a remedy where the court
appoints someone to take care of the family
business/affairs in lieu of the spouse who is recently
in the management and administration of family
business or properties. Receivership is a remedy.

3.

Aggrieved spouse may ask for an order from the

court declaring separation of the properties. If you
believe that your spouse is dissipating common
properties, then you can go to court and ask for
judicial separation of properties to protect your own
separate properties. So, your spouse may dissipate
his own assets, he can always do that but as long as
you own separate properties are protected.

4.

You dont want to separate you properties, you want

the common property intact, you can go to court and
ask for authority to be the sole administrator of the
common properties. You have to justify the need for
the issuance of this relief, by the fact that the other
spouse commits a breach of marital obligation or
commits acts which tend to bring dishonor, danger or
injury to the family or to family assets or properties.

5.

Other than these remedies provided for by Article 72

of the Family Code, special laws like RA 9262
otherwise known as Violence Against Women and
Children Act popularly known as the VOWC law, this
is now that main weapon of wives and women to the
point that this has been abused by most wives and
women. This is a special law that provides remedies
and relief to wives and women and their children who
are victims of physical, psychological and economic
abused committed by their husbands. Take note, this
is a law specifically designed to favor wives and
women against husbands and men. Under this
special law, the women or the wife can always avail
of remedies instances abused committed by the
husband, like if the wife is subjected to verbal and
emotional and psychological abused, the wife can
always go to court and ask for protection order. There
two kinds of protection order, the temporary and the
permanent. The common type of protection order
that may be availed of by the abused wife is an order
directing the husband to stay out of the family
dwelling. In a certain distance the husband may be
prohibited by the court under the pain of contempt
from getting close to the wife or to the children. Or
the husband may be prohibited from enjoying some
of the family properties, like family car.

Illustration: We have a client in the office where by virtue of

his position as a manager, the company issued him a service
car. But because of domestic problem, allegedly brought
about by the abusive conduct of the husband, the wife filed a
case in court under the provisions of the VOWC law and the
wife applied and obtained a protection order from the court.
One of the orders is prohibiting the husband from using the
service car, this may appear ridiculous as the car belongs to
the company and issued in favor to the husband. The court
said, the law does not distinguish. So it ends up the wife using
the company car. Any form of relief that may be necessary to
relieve the suffering of the wife may be granted by the court
under this provision. Imagine you are thrown out of your
family dwelling or thrown out of your office even if youre the
one managing. Unjustified refusal to support, thats economic
abuse. Take note, one of the sanctions that may be imposed
to the erring husband under this law is a criminal sanction.
This is a criminal offense committing acts constitutive of
economic, psychological, physical and emotional abuse, this
constitute a criminal offense. So the abusive husband can
end up in jail under this provision. Its because of this existing
law that domestic abused has been observed to reduced in its
frequency. On the part of the husband this is very scary but an
effective weapon on the part of the wife that is susceptible to
abuse. The husband can be practically stripped off all his
rights over family assets and properties. You need to be aware
of these remedies, especially you the wives. Support as I said,
failure to comply an order from the court directing a spouse to
give a support is contemptuous. I also have a client who
refused to give support to the wife, he ends up in jail and
there is no fix period for imprisonment. One may be jailed for
as long as he refuses to comply with the courts order,

because the order of contempt is such that the respondent is

send to jail unless he complies with the order to give support.
Well if you can justify your non-compliance with the order as
with the respondent can justify that he has no means in which
to pay, thats an exception. The general rule is, as long as the
respondent fails to comply an order for support that justifies
the court to send him to jail. Thats one way of enforcing the
obligation to give support. Take note of these rules.
Question: What about action for damages? Can the wife or
husband go to court and file an action for damages against
the other on the ground that the other committed a breach of
marital obligation? This is now action for damages, monetary
relief. Can the spouse do that against the other?
Answer: In the case of Te v. Court of Appeals, the Supreme
Court said that our laws do not comprehend actions for
damages against spouses simply on mere breach of marital
obligation. So, this is frowned upon under this jurisdiction.
Normally, spouse cannot go to court and ask for damages
against the other on the ground that the defendant, the
defending spouse is guilty of violating marital obligations.
Thats not the rule in this jurisdiction.
One of the reasons advanced by the Supreme Court for this
rule is that it would be absurd to compel the erring spouse to
pay damages to the complaining spouse, when the damages
would come from the common property. So, it would be like
transferring the money from the right pocket to the left
pocket. So for practical purposes, it wouldnt serve any
practical purpose.
So, impliedly therefore, if the property regime that governs
the property relations among spouses is that of a complete
separation of property, then action for damages would
prosper because the absurd situation contemplated under the
regime of absolute community of property does not apply in
the complete separation of property regime. So an argument
can be made that if the property regime that governs is that
of separate, then one spouse could ask for damages against
the erring spouse.
What would be the cause of action? What would be the
statutory basis of action that the complaining spouse
may file against the erring spouse?
Answer: According to Sta. Maria, the action that the
aggrieved spouse may file against the erring spouse for
damages may be based upon the abuse of rights principle
under the Civil Code (Art. 19). The provision which
commands that every person to observe good faith, give
everyone his due. So if a spouse complied or failed to comply
with his marital obligations, then he is in fact, in effect, not
giving the other spouse his/her due. That constitutes a
violation of the human relations provisions of the Civil Code.
Normally, no action for damages may be allowed or may
prosper in that aspect.
ARTICLE 73 Either spouse may exercise a legitimate
profession, occupation, business or activity even
without the consent of the other.
This is one of the rights of every spouse the right to exercise
a legitimate profession, occupation, business or activity. This
right is so important that the concerned spouse need not
secure a consent from the other. You can do that. Unlike
before that the wife was always required to ask consent from
the husband. Now, the concept of joint equality, levelling of
playing field. Either spouse, the husband or the wife, may
exercise a legitimate profession independently from the other.
BUT the non-consenting spouse may object on valid, serious
and moral grounds.
So, consent is not necessary but that does not mean that the
non-consenting spouse cannot object. Under the law, the nonconsenting spouse may object but such objection should be
based on valid, serious and moral grounds.
Question: Who should be liable for obligations incurred by
either spouse in the exercise of his profession, occupation,

business or activity WITHOUT the consent of the other? It is

not uncommon that one spouse exercises profession or
activity without the consent of the other spouse but
obligations are incurred in the course thereof. Who should
shoulder the liability? Should the liability be personal,
exclusive to the incurring spouse or can such liability or
obligation incurred by one spouse be enforced against the
common property, meaning enforced also against the other
spouse who did not consent of the others profession,
occupation, business or activity?
Answer: There are TWO SCENARIOS that may be possible
to answer this question. You have to distinguish obligations
incurred in the exercise of a LEGITIMATE profession or
obligations, burdens incurred in the exercise of
ILLEGITIMATE profession.
The particular provision that covers the situation where there
are obligations incurred in the exercise of an ILLEGITIMATE
profession, occupation, business or activity is ARTICLE 73.
The particular provision that covers the situation where there
are obligations incurred in the exercise of a LEGITIMATE
profession, occupation, business or activity WITHOUT the
consent of the other is ARTICLE 94 par. 3.
ART. 73
Question: What is the rule if one spouse exercises an
ILLEGITIMATE profession and the other spouse OBJECTS on
valid, serious and moral grounds? As with Ms. Gonzaga,
without the consent of Mr. Comendador, engages in escort
service. This is a profession. Oldest profession. So, whats the
rule?
Answer: Art. 73 provides the rule. Suppose Ms. Gonzaga
incurred debts and obligations, like she borrowed money from
a friend so she could buy sexy clothes, so she could augment
her breasts, she could improve her skin flawless, or buttocks
augmentationor virginity restoration. Obligations are incurred!
Suppose Mr. Comendador objects it because it is an immoral
profession. So, Mr. Comendador can object and base his
objection on this ground that the profession of Ms. Gonzaga is
immoral. The Court is likely to agree with Mr. Comendador
that the profession of Ms. Gonzaga, no matter how lucrative,
is immoral. Whats the rule? Who shall shoulder the
obligations incurred by Ms. Gonzaga?
Art. 73 distinguishes TWO SITUATIONS:
1. If benefits redounded to the family BEFORE the nonconsenting spouse (in this case, Mr. Comendador)
bases his objection; meaning, if benefits redounded
to the family before Mr. Comendador knew about the
illegitimate profession, that he could not base his
objection
Any debts, liabilities or obligations incurred by
Ms. Gonzaga shall be her own personal
obligation. And, therefore, the creditor, from
whom Ms. Gonzaga borrowed the money for this
purpose, cannot levy on execution the property
belonging to the community property. If they
have a house and lot which belongs to them in
common under the regime of absolute
community of property, the creditor cannot
touch the house and lot. The creditor may only
levy on execution which exclusively belongs to
Ms. Gonzaga. Thats only fair.
2.

If benefits redounded to the family AFTER the

objection was made by Mr. Comendador he knew
about it, he stormed the heavens and objected to it
because of jealousy, and yet despite raising his
objection, he shared in the profits of Ms. Gonzaga, he
also partook of the money that Ms. Gonzaga
borrowed from a friend, knowing that that money
was obtained by Ms. Gonzaga from her illegitimate
profession
The principle of estoppel now applies on this
case, such that under Art. 73, this obligation
incurred by Ms. Gonzaga in the exercise of her
profession may be enforced not only against the
separate exclusive property of Ms. Gonzaga but

also it may be enforced against the common

property, in effect, the obligation is also
shouldered by the husband who objected but
shared in the benefits.
INTERLUDE: Naaygi-ask si Nigel *inaudible*
ANSWER NI SIR: You go now to Art. 94 par. 9, okay? There
are charges and obligations that may be enforced against the
common property, but we will discuss that more thoroughly
later. There are 10 enumerated items there. The 9th there
provides or enumerates the kind of obligations that are
enforceable only against the incurring spouse as his or her
separate obligation. BUT in case the incurring spouse has no
sufficient separate property, the common community property
may be compelled to advance, subject to reimbursement.
Now, what are these obligations contemplated under
par. 9, Art. 94?
1. ANTENUPTIAL DEBTS that do not redound to the benefit of
the family
2. Support of the illegitimate children
3. Obligations arising from crime or quasi delict
These obligations are chargeable against the personal
exclusive property of the incurring spouse but the community
property maybe compelled to make the advances.
Take note: that obligations in court during the marriage
which do not redound to the benefit of the family, does not fall
under any of those items enumerated in paragraph 9 and 94.
Therefore, the advance reimbursement cannot be invoked. So
the answer to that question that obligation is an obligation
incurred during the existence of the marriage but it did not
incur to the benefit of the family then it does not fall under
paragraph 9 and it should be shouldered separately but if
benefits incurred to the family then it falls under debts
redound to the benefits of the family, paragraph 3.
Now lets go if the obligation was incurred with the exercise of
an illegitimate profession. Now lets go where the obligations
incurred with the exercise of a legitimate profession this is
contemplated under paragraph 3 Art 94 all debts and
obligations incurred by one spouse without the consent of the
other to the extent that the family may have been benefited.
So if the spouse incurred an obligation in the exercise of his
profession occupation, business o activity which is legitimate
under art 94 par 3 so long as the family was benefited that
obligation maybe charged against the community property
but there are actually two scenarioscontemplated under this
rule. Lets distinguish between transactions, professions,
occupations or business activity which would normally
redound to the benefit of the family from a transaction, which
is, isolated which would normally not redound to the benefit of
the family.
A transaction, which would normally redound to the benefit of
the family like engage in a business or a profession.
Example Ms. Gonzaga is now a lawyer, a
legitimate profession and in the course of her
practice Ms. Gonzaga incurred obligation, a loan
from the bank for the construction of her law
office. But she was unable to pay the obligation
the bank goes to court, obtain a money
judgment against her. Can the bank assuming
the husband did not consent for the exercise of
her profession, can the bank go after the
common/community
property
without
the
consent of the husband? Under 94 par 3, this
kind of obligation that would normally redound
to the benefit of the family even if there is no
actual benefit. The SC said this is chargeable
against the community property, thus the
husband should share in the obligation. This was

the ruling in the case of G Tractors Inc. vs CA

and spouses Nicasio. The husband was
engaged in the logging business. He obtained a
logging concession from the government. In
pursuit of this business, he alone entered into a
contract with G Tractors for the purpose of the
logging business. Due to the non-payment of the
stipulated rentals for the heavy equipment, the
owner of the equipment goes to court for the
collection of the unpaid rentals. G Tractors won
and now seeks to enforce the money judgment,
but G tractors levy on execution a property
belonging to the community property. WON this
obligation enforce against a common property
when Mr. Nicasio was the only one who incurred
this obligation and there was no showing that it
benefit of the family because in fact the
business went down the drain.maybe
The Supreme Court said Mr. Nicasio ventured
into this business which is intended for the
family. It is not required if the nature of the
construction itself that it would normally
redound to the benefit of the family, it is not
required that actual benefit is incurred to the
family, it is enough that it is presumed to have
been intended for the benefit of the family. So
when the business went down the drain any
liability incurred thereof maybe enforce against
the common/community property. The incurring
spouse should not be left alone.

On the other hand, if the transaction is an ISOLATED

TRANSACTION.
A transaction, which normally is not intended for
the benefit of the family, or by itself. By itself it
is not expected for the benefit of the family, the
only way the community property maybe levied
upon is when there is proof that there is actual
and direct benefit.
This was the ruling in the case of Ayala
Investment and Development Corp. vs CA
and spouses Ching. There was this corporation
the Philippine Blooming Mills Corp. which
obtained a loan from Ayala Investment as a
standard practice of the bank, the bank would
not extend loan to corporations unless the
owners or officers execute surety agreement,
making themselves personally liable for the
obligation of the corporation. This is to avoid a
situation where a corporation goes bankrupt but
the stock cannot be sued for the obligation of
the corporation. Consistent with the principle
that a corporation has a personality separate
and distinct from the stockholders.The rule is the
obligation of the corporation is only the
obligation of the corporation, it cannot be
enforce against the stockholders. To avoid the
bank to be left with empty bag, their practice is
to make it as a condition as to the release of the
loan that the stockholders undertake a surety
agreement, holding themselves personally liable
incase the corporation cannot pay. Mr. Ching the
vice president executed a surety agreement.
Fast-forward the corporation did not do well, so
the corporation was unable to pay. Ayala
Investment now is constrain to file a collection
suit against Philippine Blooming Mills and Mr.
Ching., under the surety agreement that the
later executed. Ayala Investment won and was
able to obtain a money judgment. The court
sheriff levied an execution to the properties
belonging to the community property or conjugal
property of gains from Mr. Ching and his wife.
And so Mr. Ching and his wife filed an action in
court to enjoin the sheriff from foreclosing the
property. They argue that the obligation incurred
by Mr. Ching is chargeable on Mr. Chings

separate property, so it is only his personal

obligation. Thus it cannot be enforce to the
property belonging to the community property.
The SC said the obligation that Mr. Ching entered
into with the Ayala Investment is one which is
not normally redound to the benefit of the family
because the loan obligation was released not to
Mr. Ching but to the corporation, the money did
not go to Mr. Ching but to the corporation. Mr.
Ching only served as a surety incase the
principal power fails to pay. And so the SC said
unless there is proof that actual benefit
redounds to the family, it may not be enforce to
the property belonging to the absolute
community property.

The rule is, if the obligation is incurred in a legitimate

profession, occupation, business activity which would
normally redound to the benefit of the family is enough that it
is presumed to redound to the benefit of the family, to make
the common property liable. It is not require that there is
proof of actual benefit even if the obligation results in actual
loses the common property may still be liable. But in Isolated
transactions one, which would not normally redound to the
benefit of the family, it may not be charge to the absolute
community property, unless there is proof of actual benefit
that redounds to the family. Take note of these cases.
Lets go to PROPERTY RELATIONS BETWEEN SPOUSES.
Governed by (1) Marriage Settlement executed before
marriage. (2) by the Provisions of the family code. (3) by Local
Customs. These are the three possible laws that govern the
property relations between spouses. The principal source is
the marriage settlement.
What is a marriage settlement?
It is a contract containing terms, conditions and
stipulations governing the property relations between
spouses. So any terms, condition or stipulation which has
anything to do with property relations between spouses may
be put in there. A common item that may appear in marriage
settlements is the enumeration of the properties that the
parties agreed to be their exclusives and the properties they
agreed to be common. The future spouses can actually agree
before their marriage that okay these are my properties and I
want these property remain my exclusive the other spouse
would also propose I want also that these property should
remain mine even during the marriage, you can actually
stipulate it in fact it is very the most important in the marriage
settlements.
Another item that is commonly found in the marriage
settlements is the donation by reason of marriage it can also
b found there the marriage settlements may contain among
others stipulation donation by reason of marriage.
What is a donation by reason of marriage?
The family code contemplates of two kinds of donations. The
so-called donation by reason of marriage made before
marriage and in consideration of marriage and donations
during the marriage. These are two separate donations
governed by distinct provisions. So lets go to donation by
reason of marriage. The donation by reason of marriage may
be made by a third party. 1 st kind of donation by reason of
marriage made by a third party in favor of one or either of
would be spouses like if ms Gonzaga is about to get married
her parents execute a donation in consideration of her
marriage a house and lot so the donor is a third party the
beneficiary or the donee is the would be spouses or both
would be spouses.
What is the rule if the donation by reason of marriage is made
by a third party the donor is a third party?
1. This kind of donation by reason of marriage can only
be done in a separate deed of donations it cannot be
incorporated in a marriage settlements because the
marriage settlements is strictly executed between

2.

3.

4.

the would be spouses stranger cannot be a party to a

marriage settlements. So the only way by which a 3rd
party may execute or may make a donation by
reason of marriage in favor of either spouses or both,
is for that donor to execute a separate deed of
donation.
A donation by reason of marriage made in the form
of a separate deed of donation but a stranger is valid
even in the absence of the marriage settlements so
for this kind of donation to be valid it is not required
for the spouses should execute a marriage
settlements in other words this donation or separate
deed of donation is independent the marriage
settlements is not required.
This kind of donation is not subject to the not more
than 1/5 limitation in other words the donor may
donate property to either or both of the would be
spouses even if it exceeds 1/5 the value of which
may be more than 1/5 of the donor present property
there is no such limitations. The only limitation here
is the donor cannot donate everything and the donor
should retain something for his sustenance and
provided it will not impair the legitime of his heirs. So
not subject to the not more than 1/5 limitation but
subject to the rule that he should retain something
for his sustenance and provided it will not impair the
legitime of his heirs.
If the marriage doesnt take place the deed of
donation is only revocable under the option of the
donor so if the donor does not wish to revoke it, the
donation remains valid.

So lets go to donation by reason of marriage made by one

would be spouses in favor of the other would be spouse.
Whats the rule?
There are two way by which this kind of donation may be
name.
i.
For this kind of donation by reason of marriage is
made incorporated in the marriage settlement
the other way is the separate deed of donation
so if the donation by reason of marriage is made
by a would be spouse in favor of the other would
be spouse this kind of donation by reason of
marriage
would be done either through
separate deed of donation or by incorporating
donation by reason of marriage in a marriage
settlements. Lets go to donation by reason of
marriage incorporated in a marriage settlements
whats the rule cause this are governed by
different rules.
1st There must be a marriage settlements 2 nd the marriage
settlements must stipulate a property regime other than
absolute property of community of property regime. Why?
Because (cant understand) the donor being the spouse its a
legal impossibility because donation presupposes transfer of
ownership its a lost on the part of the donor its a gain on the
part of the donee but in the absolute property of community
of property regime whatever is his is hers there would be no
transfer of ownership. So this can only be valid and possible if
the property regime is other than the absolute property of
community of property it could be conjugal partnership of
gains, complete separation of property regime or any
combinations of this 3 but not absolute property of community
of property regime.

09/17/2015
Ways in making donation of one would be spouse in favor of
the other would be spouse:
1. Donation by reason of marriage incorporated in a
marriage settlement. So there is a marriage settlement and
one of the stipulations stated in the marriage settlement is
donation by one would be spouse in favor of the other would

be spouse. Now, if this is the kind of donation made the ff.

rules will apply.
Rule 1: there is a valid marriage settlement.
Rule 2: the marriage settlement must stipulate a
property regime other than the absolute property
regime. The reason here being is that if the property
regime is absolute community of property regime it
will result in an absurd situation wherein the donor
will end up also becoming the donee.A donation is
supposed to be a mode of transfer and acquisition of
ownership. It means that the donor losses something
and the donee receives something from the donor.
But if the property regime that governs the property
relation is that of Absolute Community of Property
regime then this will not result in a situation where
the donor losses something because in effect he will
be donating unto hisself. And because of this legal
impossibility it is required expressly by the family
code that the marriage settlement must stipulate a
regime other than absolute.
Rule 3: the donor cannot donate more than 1/5 of
his present property. So the donation here is limited
to not more than 1/5 of the present property of the
donor. The obvious reason behind this limitation is
that if a donation by reason of marriage incorporated
in the marriage settlement, and a marriage
settlement is basically a contract, and that a contract
presupposes stages of negotiation, perfection and
performance. The stage of negotiation poses the
possibility that the donee may exercise undue
influence over the donor. Thats the nature of a
contractual negotiation. The parties will try to
outsmart the other. So the donor, obviously, more in
love to the donee than the donee being in love with
the donor. Its more likely that the doneewill exercise
undue influence to the donor. And if there is no
restriction its likely that the donor will donate
everything to the donee. So to avoid that possibility,
the evil of undue influence, the law makes it a point
that a donation should not exceed than 1/5 of the
present property of the donor. The 1/5 limitation
should be reckoned at the time the donation is made.
Rule 4: if the marriage does not take place, the
donation by reason of marriage is void. Take not not
just voidable or revokable but void by virtue of Art.
87 because the donation by reason of marriage is
incorporated in the marriage settlement. And it is the
rule under Art. 87 that if the marriage doesnt take
place, the donation within the marriage settlement is
rendered void. Including all terms and stipulations
and donations by reason of marriage is made
dependent on the celebration of the marriage.
2.Execution of a Separate Deed of Donation. The
donation is not incorporated in the marriage settlement but a
separate document itself called deed of donation. If this is
the kind of donation being made the ff: rules shall apply;
Rule 1: there must be a valid marriage settlement. It
may appear absurd at first brush but the validity of
the donation by reason of marriage made in a
separate deed of donation is made dependent on or
is conditioned upon the execution of a marriage

settlement when this is suppose to be separate,

independent from the marriage settlement. But the
reason behind the requirement is all too obvious. The
same reason as in the first form. If there is no
marriage settlement the default property regime that
will automatically govern is Absolute Community of
Property regime and so even if the donation by
reason of marriage is made in a separate deed of
donation the same situation will result. The donor
ending up being the donee along with the other
would be spouse. So, for this kind of donation to be
valid, even if its separate, there should be a marriage
settlement and that marriage settlement must
stipulate a property regime other than Absolute
Community of Property regime.
Rule 2: this kind of donation by reason of marriage,
the 1/5 limitation rule does not apply. The donor here
may donate more than 1/5 of his present property
unlike if the property is incorporated in the marriage
settlement. the reason for this rule is obvious. If the
donation by reason of marriage is made in a separate
deed of donation; the deed of donation, by its nature,
is unilateral. Its a unilateral contract, meaning it all
depends on the sole liberality of the donor. So since it
is unilateral process, negotiation does not take place.
You dont negotiate in a deed of donation because it
is purely based on the liberality on the part of the
donor. So the evil of undue influence is unlikely to
take place. And because of the least likely scenario of
undue influence, the law does not also deem it
necessary to impose the limitation which is the one
involved in the donation by reason of marriage
incorporated in the marriage settlement.
Q: What happens if the marriage does not take
place? And the donation by reason of marriage
is made in a separate deed of donation?
A: The deed of donation is only revocable at option
of the donor under At. 86 because it is not
incorporated in the marriage settlement.

Other form of DONATION:

Donation made by one spouse in favor of the other
during the existence of the marriage.
Rule 1:If the donation by either spouse in favor of
the other spouse during the marriage. The rule is, the
donation is void. And this is tru regardless of the type
of property regime that governs the property
relations. And regardless of the value, it is not
governed by the not more than 1/5 limitation and it is
not required that the property regime should be one
other than the Absolute Community of Property
Regime. Regardless of the kind of property regime, it
is always void. The reason here being the
combination of two reasons behind the limitation; (1)
the possibility of undue influence when two
people are already married to each other, living
together for a very long time, the likelihood that one
may exercise undue influence over the other is high.
So thats the evil sought to be avoided by the
prohibition. And also, (2) if the property regime

that governs the property relation is that of an

Absolute Community of Property regime then
again the reason of legal impossibility applies.
The only exception to this prohibition is MODERATE
DONATION made by reason of family rejoicing. So,
moderate donation made by one spouse in favor of
the other during the reason of family rejoicing like
birthday, anniversary, christmas and when there is a
special occasion, promotion of the other. Moderate
should be determined on the capacity of the
donor/giver. This prohibition of donation
between spouses during the marriage equally
applies to a donation made between persons
living
together
under
a
common
law
relationship
or persons in a union without
marriage, the same principle applies. So if 2
peopleliving together as husband and wife without
the benefit of marriage, any donation made by one in
favor of the other is also void otherwise it will result
in an absurd situation where legitimate relationship
will be placed at disadvantage and that upon
illegitimate relationship. This is the ruling of Arcaba
vs. Tabancura. This is the donation made by an old
man in favor of his supposed house help maid while
the old man was under the care of the woman house
help but it turns out that the woman was actually his
lover. So the SC said there the prohibition against
donation between spouses during the marriage
equally applies and therefore that donation made by
the Oldman in favor of his lover is void. (sir is
coughing for about 20 seconds)
Q: Whats the rule on donation made by either spouse
during the marriage in favor of a third party?
A: Since donation is an alienation encumbrance of
in
disposition of property. And under article 96 or 124? (sir
wasnt certain this time, pls check the book instead)the
donation made by one in favor of a third party without the
consent of the other is void because any disposition say it
alienation or encumbrance of a property belonging to the
absolute community or conjugal partnership of gains is void.
Except:
Moderate
donations
made
for
charitable
purposes/moderate donations made for family
rejoicing or family distress.
Example: If one family member is suffered from
tragedy or died , you can donate moderate gift for
occasion of family distress. Moderate can be
determined on case to case depending on the
capacity of the spouses.

Marriage settlement to be valid needs only to be in writing

and executed before the marriage. It doesnt have to be in
public instrument nor notarized unless it contains a donation
by reason of marriage a real or immovable property, then it
has to be in a public instrument and notarized. (take note)
Instances where donation by reason of marriage is
rendered revocable. (revocable at the option of the
donor not void okay?)
1.

IF THE MARRIAGE DOES NOT TAKE PLACE OR

THE MARRIAGE JUDICIALLY DECLARED VOID.
Except: However if the donation by reason of
marriage is incorporated in a marriage settlement in

which case the donation by reason of marriage is

rendered void under article 81
For marriage judicially declared void:
Under article 86 paragraph 1. If the marriage is
judicially declared void, donation by reason of such
marriage is rendered revocable at the option of the
donor except under the following instances:
(The gravity of the grounds for the nullity of
marriage are of great importance to determine
whether the donation by reason of marriage is
only revocable or totally void)okay?
1.

When the marriage is judicially declared void for

the reason of article 40, not compliance
therewith. Meaning a person is married
previously and the previous marriage is void but
failed to obtain judicial declaration of nullity of
the previous marriage, he contracts a
subsequent marriage, the subsequent marriage
is void under article 40 due to failure of
compliance with the requirements under articles
51and 52.
What is the status of the donation by reason of
such marriage rendered void under article 40?
Here, we are going to apply article 50 in relation
to article 43 paragraph 3.
Article 50: The effects enumerated in article 43
paragraphs 2 3 4 and 5. Paragraph 3 says
donation by reason of marriage shall be revoked
by operation of law if the donee acted in bad
faith. Clearly, this is revoked by operation of
law and not revocable at the option of the
donor. Take note

2.

3.

When the marriage is void under article 44. This

contemplates of a situation where one of the
spouses to this marriage was previously married
to someone else but was missing and thatparty
obtained a court order declaring the missing
spouse presumptively dead. And then that party
contracted a subsequent marriage. But the
spouses of the subsequent marriage acted in
bad faith for they knew that the missing spouse
is still alive. That subsequent marriage is void.
Under article 44, donation by such marriage is
void by operation of law not revocable at the
option of the donor.
If the marriage is rendered void for being
bigamous under article 35 paragraph 4 in
relation to article 739 of the civil code.
Article 739: Donation made between
persons guilty of concubinage and adultery
is void by reason of public policy. Donation
made between spouses in a bigamous
marriage because one of them is married
to someone else, that marriage is still
existing. That is bigamous under article 35
paragraph 4 in relation to article 739. That
donation is void for being guilty of adultery
and concubinage as the case may be.

So the general rule is donation by reason of marriage

is rendered revocable if the marriage is declared
judicially void, EXCEPT: under the 3 instances: 40, 44,
bigamous in relation to 739.

Take note: If the donation by reason of marriage is rendered

revocable at the option of the donor, meaning the general rule
applies as contemplated in article 86, the donation by reason
of marriage is rendered revocable regardless of the bad faith
or good faith of the done. If the marriage is declared void by
art. 40, it is revoked by operation of law only if the done acted
in bad faith. In the same manner as Article 44. It is rendered
revoked by operation of law because the done is in bad faith.
This is intended to punish the donee. BUT if it is rendered
revocable at the option of the donor, under art 86 because the
marriage was declared void on grounds other than articles 40,
44 and 739, by express provision of article 86, the donation by
reason of marriage there is revocable regardless of whether
the donee is in bad faith. Like marriages declared void by
reason of psychological incapacity, under art. 36. Whatever
donation by marriage made by one spouse to another, even if
the done is the innocent spouse, that donation is revocable at
the option of the donor not because the donee is in bad faith
but because of the fact that the marriage is declared void.
Q: When do you file an action to revoke if the donation is
revocable?
A: If the donation by reason of marriage is revocable at the
option of the donor, it means that if the donor did not do
anything about it, the donation remains valid even if the
marriage is void or doesnt take place. But if the donor wants
to have it revoked, he has 5 years from the time the cause of
action accrues. Ex: Non-realization of marriage: 5 years from
the time the marriage was supposed to take place;
declaration of nullity of void marriage- within 5 years from the
time the decision declaring it void becomes valid.

Q: Whats the prescriptive period if the donation by reason of

marriage is VOID?
A: When a marriage is declared void under articles 40, 44 or
739, the donation by reason of marriage is declared revoked
by operation of law or void by operation of law. If the done
voluntarily returns the property donated, upon finality of the
decision declaring the marriage void, then there would be no
problem. The donor gets back the property donated. But in a
situation where the done refuses to return the property
donated, even after the nullity of the marriage, the donor has
the right of action to file a complaint for RECOVERY of the
property donated. Thats where prescription comes in. The
rule of prescription here depends on the nature of the
property donated. If the property is movable, the prescriptive
period is EIGHT (8) years from finality of the decision
declaring the marriage void. If the property is immovable (real
property), the prescriptive period is THIRTY (30) years from
finality of the decision nullifying the marriage.

effects under article 43 paragraph 2,3,4 and 5, which includes

among others the fact that any donation by reason of
marriage is revoked by operation of law if the done acted in
bad faith shall apply to voidable marriages declared annulled
under article 45. So if the marriage is annulled, and the
donnee is found in bad faith by virtue of art. 43, which applies
to voidable marriages, by virtue of article 50, it is not only
revocable but revoked by operation of law like it is decalred
void by reason of article 40. So there is a contradiction
between 86 and 43 inrelation to 50. There are two conflicting
views on the matter, one view provides that since article 86 is
the later provision, then it should prevail over art 40 but some
writers, including sta. maria, art 43 is more consistent with
the purpose of the law in declaring the donations by reason of
marriage revoked by operation of law in case the done acted
in bad faith is to punish the done who acted in bad faith. If the
donation by reason of marriage is rendered revocable, this
penalty is lighter than declaring the donation revoked by
operation of law. So, consistent with the purpose of
punishment, so 43 which punishes a harsher effect making
the donation by reason of marriage revoked by operation of
law should prevail.
Theres a way to reconcile. Take note that 43 says that if the
done acted in bad faith, the donation is revoked by operation
of law. If the done is not in bad faith, if she is not the guilty
spouse, the donation is perfectly valid. It Is not even
revocable but valid. So, the way to reconcile this is if the done
acted in bad faith, maybe Sta. Maria is right, we should punish
him. And therefore, apply 43, revoked by operation of law. But
in a situation where there is no guilty party, maybe you can
apply art. 86. The law says bad faith. In annulment of
marriage, the grounds art. 45 dont always involve bad faith
to the guilty spouse. If it is annulled by reason of insanity, its
not bad faith. Or impotency, its not bad faith.
4. WHEN THE DONATION BY REASON OF MARRIAGE IS
SUBJECTED TO RESOLUTORY CONDITIONS AND IT IS
COMPLIED WITH.
There are two kinds of conditions:

2. IF MARRIAGE IS SOLEMNIZED WITHOUT THE

PARENTAL CONSENT OF EITHER OR BOTH SPOUSES
WHEN PARENTAL CONSENT IS REQUIRED.So the parties
here are between the ages of 18 and 21 but both or one of
them failed to obtain parental consent and there is a donation
by reason of marriage made by one in favor of the other, the
donation by reason of marriage is revoked at the option of the
done.

Suspensive: Condition which suspends the effectivity of the

obligation. Meaning, if an obligation is subject to a suspensive
condition, the obligation does not take effect immediately. It
does not become demandable immediately until the condition
is complied with. So obligation in the mean time is suspended,
but when the condition is complied with, thats the time when
the condition takes effect, now demandable. For example,
when Mr. Comendador in consideration with her marriage with
Ms. Gonzaga donates his house and lot in favor of Ms.
Gonzaga, but subject to the condition that Ms. Gonzaga
should bear him a dozen of children during the marriage.
(Vienna: grabe sad ka sir) So at the time the donation by
reason of marriage is executed, the donation doesnt take
effect. Ms. Gonzaga cannot demand fulfillment because it is
subjected to suspensive condition. It is only when the
condition is complied with that the donation by reason of
marriage is effective and demandable. Resolutory condition is
the opposite

3. WHEN THE MARRIAGE IS ANNULLED UNDER ARTICLE

45.Voidable marriage and the court declared it annulled.
Donation is revocable at the option of the donor. However,
this provision, paragraph 3 of article 86 is in complete
contradiction to article 50, in relation to article 43, paragraph
3 of the FAMILY code. Under article 50, it says there that the

Resolutory: the obligation is immediately effective and

demandable but the same is extinguished by the happening
of the resolutory condition. For example, Mr. Commendador
donates his house and lot in favor of Ms. Gonzaga in
consideration of the marriage subject to the resolutory
condition that ms. Gonzaga should remain faithful to him. So

the moment the donation is executed or made, it becomes

immediately demandable, effective. BUT the moment ms.
Gonzaga commits an act of infidelity, thats a RESOLUTORY
CONDITION that produces the effect of extinguishing the
obligation. So, what is contemplated in article 86 is a donation
by reason of marriage subject of a resolutory condition. If the
resolutory condition is complied with, the donation by reason
of marriage is revocable.

Donation by reason of marriage where the done is guilty of

ACTS OF INGRATITUDE.
These acts are enumerated in article 765. Which may include
the following:
1.

2.

Commission of crimes against the person, honor and

property of the donor, the donors wife, or the
donors children under parental authority.
If the donee imputes to the donor any crime or acts
involving moral turpitude. Even if the done should
prove the truth of the implication (?) EXCEPT IF: the
crime imputed to the donor is committed against the
done, his wife or children under his parental
authority. So if the doneeaccuses of raping somebody
else, even if thats true, the donor can always revoke
except if the accusation of the rape is committed
against the person of the done, his wife or children
under his parental authority.
When the done refuses to support the donor when
under the circumstances, the done is morally and
legally obliged to support the donor. That is an act of
ingratitude.

A: The rule here is that under ACPR, all properties that either
or both spouses own at the time of the celebration of
marriage or acquired thereafter, form part of the ACP.
Whatever is brought to the marriage and acquired thereafter
is common.
EXCEPTIONS (meaning, these are the properties that are
exclusive and separate in ACPR):
1. Contractual Exclusions. Properties which parties in their
marriage settlement stipulated are to be separate and
exclusive properties. They can mention in their marriage
settlement what they want to remain exclusive and which
properties they want to form part of ACP. They can do this
because a marriage settlement is basically a contract
between the parties.
2. Statutory Exclusion. Those properties which by laws are
considered excluded not only part of the absolute community
property, so it is the law itself that make these properties
exclusive.
What are these properties?
1.

PROPERTY REGIMES:
1.
2.
3.
4.

ABSOLUTE COMMUNITY OF PROPERTY REGIME (ACPR)

CONJUGAL PARTNERSHIP OF GAINS (CPG)
COMPLETE SEPARATION OF PROPERTY
ANY COMBINATION OF THE 3, A MIXED KIND OF
REGIME

ACP is the default regime. Meaning, if the would-be spouses

do not stipulate in a marriage settlement their property
regime, or did not execute a marriage settlement,
automatically, the ACPR governs. This is so because this
regime best express in the saying What is mine is ours. What
is yours is ours.Consistent with the Filipino culture which
treats marriage is a single, indivisible institution emphasizing
the oneness of the couple. In this kind of regime, there are
more properties belonging to the common than exclusive
separate properties. That is why this is prescribed law as the
default type of regime.
Q: When does ACP operate to govern the property relation
between spouses?
A: 1. In the absence of a marriage settlement, automatically
apply ACPR.
2. If the would-be spouses execute a marriage settlement, and
stipulates a kind of property regime other than ACPR, but that
stipulated property regime is void, then the effect here is that
it is as if they did not stipulate on a kind of property regime,
then apply default ACPR.
3. If the would be-spouses execute a marriage settlement, and
stipulates that they will have ACPR.

2.

3.

Mentioned in Article 92, properties acquired during

marriage by either spouse by gratuitous title
including the fruits and the income unless the donor
expressly provide that the same will should (di ma
klaru) part of the absolute community of property.
What is property acquired by gratuitous title? Refers
to property acquired by either spouse during the
marriage without any consideration other than the
pure liberality of the giver or the grantor. The most
common property acquired by gratuitous title is a
property donated or property inherited. If the
property is donated the done doesnt part anything in
a change in the property donated just the pure
liberality, kindness or generosity of the giver or
donor. Gratuitous as oppose to onerous. Onerous title
is properties acquire for something consideration
burden on the part of the one acquiring the property.
Like property purchase your salary that you acquired
by reason of your profession these are properties
acquired by onerous because you didnt acquire
pursuant to the generosity of the giver you acquire it
due to consideration that you pay or you work for
So again when the property is inherited it should be
separate always because under Art. 92 only
properties acquired during marriage by gratuitous
title are considered exclusive and separate. So those
properties by gratuitous title before the marriage
doesnt fall under art. 92 because 92 is acquisition
during the marriage.
How to classify properties acquire by gratuitous title
before the marriage?
That property will fall under the general rule that
properties that each spouse brought in to the
marriage
Properties of personal use of either spouse
It should be personal and exclusive use except
jewelry because of its inherent high value.
Properties acquired by either spouse before marriage
who has legitimate descendant of former marriage
(child or grandchild) ruling of the case of Abrenica vs.
Court of Appeals.

09/22/15
PERSONS AND FAMILY RELATIONS SEPT. 22, 2015

Q: What are the properties that form part of ACPR (meaning

common, belonging to both husband and wife?

The last statutory exclusion is any property obtained by

either spouse before marriage and the owner spouse
has legitimate descendants of former marriage i.e Ms.
Gonzaga is previously married and she has legitimate
descendants take note of legitimate descendants, NOT
illegitimate and NOT ascendants but DESCENDANTS,
meaning children, grandchildren, great grandchildren
by the former marriage and she acquired property from
that former marriage before the subsequent marriage, that
property that she acquired prior to that subsequent marriage
is considered her exclusive separate property. This is to
protect the interest of the parties involved in the previous
marriage. So it will not be mixed with the properties acquired
during the existence of the subsequent marriage.
So these are the four statutory exclusions. Meaning, the law
itself makes these properties exclusive.
The ACP is primarily governed by the marriage settlement,
the family code. So in the marriage settlement, the would-be
spouses are free to stipulate as to the properties they want to
remain as their exclusive properties these are called
contractual exclusions.
So a very interesting question is can the would-be
spouses stipulate that any of those properties
excluded by law meaning those statutory exclusions
forming part of the ACP? Because in the marriage
settlement they are free to stipulate which properties remain
exclusive and which properties shall form part of the ACP.
Answer: absolutely NO, because the law itself makes
these properties exclusive properties of either
spouses. Therefore, any stipulation to the contrary is void
being contrary to law. Thats precisely the reason why the law
itself in Art. 92 specifically make these kinds of properties
exclusive.
CHARGES UPON AND OBLIGATIONS OF ACP
These charges are those enumerated in Article 94. Those
enumerated in art. 94, except Par. 9, are obligations, liabilities
and indebtedness which are chargeable against the ACP.
Meaning, chargeable against the common property of the
spouses. It is a common liability. So lets have a rundown of all
these properties.
1. Support of the:

Spouses
Common children
Legitimate children of either spouses because its
possible that either of the spouses have legitimate
children from former marriage

By express provision of Art. 94 Par.1, these are chargeable

against the ACP.
Take note: Legitimate children only of either spouse. So
if one of the spouses has illegitimate child by previous
relationship, the support is not chargeable against the ACP
because it does not fall under Par. 1 of Art. 94
2. All debts and liabilities incurred by:

designated administrator spouse

both spouses

by one with the consent of the other

This kind of obligation is incurred by either spouse so long as

that spouse is designated as the administrator. Not all
instances where both spouses are co-administrators of the
common property. There are instances where one of them is
designated as administrator. So if one is designated as
administrator, any obligation incurred by him for the benefit of
the family is chargeable against the common property, even if
this is incurred by one designated as administrator.
If obligation or liability is incurred by both, so since this is
incurred by both, naturally it is chargeable against ACP. Both
of them should shoulder the liability.
Liability is incurred by one with the consent of the other for
the benefit of the family. And obligation is incurred during the
marriage.
3. Obligation or debts incurred by either of the spouse
during the marriage without the consent of the other
to the extent that the family may have been benefited.
Take note that paragraph 3 is different for par. 2 because in
par. 2, the obligation is incurred by the spouse designated as
the administrator or incurred by both or by one with the
consent of the other.
In par.3, the obligation is incurred by only one of them without
the consent of the other but this can be charged against the
ACP provided the family is benefited.
I already discussed this with you earlier that for
purposes of Par.3 Art. 94, you have to distinguish a
transaction which gives rise to the liability and would
normally redound to the benefit of the family and
ISOLATED transaction. If the transaction normally redound
to the benefit of the family (i.e exercise of a profession,
occupation, business, or activity), even if no actual benefit
that redounded to the family as when the business went down
the drain or the business incurred losses, since this business is
presumed to be for the benefit of the family, this kind of
obligation is chargeable against the common property. Even if
the transaction is entered into by one without the consent of
the other. We already discussed the case of G-tractors, a
husband who entered into a contract without the consent of
the wife but the contract was in accordance with his logging
business. The business went down the drain as the husband
could not even pay for the rentals incurred for the use of the
leased heavy equipment but the SC said since the business is
such that would normally redound to the benefit of the family
there is no need for proof of actual benefit in order for this
kind of obligation may be charged against the ACP or CPG.

If isolated transaction like in the case of Ayala Investment,

where the husband executed a surety agreement in order to
secure the obligation obtained
from the bank by the
husbands employer, the corporation. The SC said since the
obligation was obtained by the corporation of the debtor and
the money went to the corporation and nothing went to the
husband, this kind of obligation is such that would not
normally result to the benefit of the family. The only way by
which the ACP may be charged or may be held liable for this
obligation is proof of actual benefit that redounded to the
family. In this case, the SC said there is no proof of actual
direct benefit to the family and so the SC said that this kind of
obligation incurred by the husband arising from the surety
agreement that he alone executed without the consent of the
wife is only personal and exclusive obligation.

to the spouse who incurred them. So normally, these are

not chargeable against the common property. What are the
items listed in par. 9 of art. 94 which are personal to the
spouse concerned?

Take note of these two distinctions.

4. All taxes, liens, expenses, charges including major
and minor repairs on common properties incurred
during the marriage. So if the family has common property
like a car, a house and lot, or any property any taxes,
charges, liens including minor and major repairs of these may
be charged against the common property.
5. All taxes and expenses for preservation. Take note this is
different from number 4. This paragraph contemplates of
taxes and expenses for mere preservation of separate
property of either spouse so long as the property is
used by the family. For example, the wife has a separate
car and the car is also used by the family, any expenses for
mere preservation of the car is chargeable against the
common property. So the husband may not refuse to shoulder
the expenses simply because the property is the exclusive
property of the wife. The operative fact there is the fact it is
being used by the family, so it redounds to the benefit of the
family.
6. All expenses to enable either spouse to commence
or complete vocational course or any activity for selfimprovement. So either of the spouse may pursue any
course masteral, doctoral, law so long as it is for selfimprovement of either spouse, it is chargeable against the
community property.
7. This is also important. Antenuptial debts incurred by
either spouse provided benefits redounded to the
family. So it is possible that before the marriage, either
spouse already incurred some obligations. Now under par.7 of
art. 94, even if the obligation is incurred prior to the marriage
but so long as this obligation redounded to the benefit of the
family during the marriage, that obligation may be charged
against the common property. So if before the marriage ms.
Gonzaga obtained a loan from the bank in order to shoulder
the high cost of their grand wedding that obligation incurred
prior to the marriage may be charged against the common
fund.
8. The value of anything donated or promised to their
common children for the exclusive purpose of
commencing or completing professional or vocation
course or any activity for self-improvement. So anything
spent for self-improvement is chargeable against the common
fund.
9. The items listed in par. 9 are those obligations which
are by specific provision of law personal and exclusive

Support of illegitimate children so if either of

the spouse is or having illegitimate children, the
support of their illegitimate children shall be their
exclusive obligation, it cannot be taken from the
common property.
Antenuptial debts that do not redound to the
benefit of the family This is different from par. 7
because in par. 7 antenuptial debts incurred have
benefited the family that is why it is chargeable
against the common property. But in par. 9, these
antenuptial debts do not redound to the benefit of
the family and therefore personal to the spouse who
incurred the obligation.
Liabilities arising from crimes and liabilities
arising from quasi delict so even during the
marriage either spouse is charged with an offense
like in one case I assigned to you. The wife there was
charged with slander, a civil liability was charged
against the wife arising from slander. So it was a civil
liability arising from crime. The SC said that kind of
obligation can only be enforced against the separate
property of the spouse concerned. It falls under par.
9 of art. 94.

So these four items, if any of these is incurred by either

spouse as a general rule these liabilities and
obligations cannot be charged against the ACP. It can
only be charged against personal and exclusive property of
the spouse who incurred them. BUT in the event that the
spouse personally liable to these obligations has no
sufficient or absolutely no property with which to
answer for these personal obligations, by virtue of
par.9 art. 94, this obligation although personal to the
spouse concerned may be charged against the ACP by
way of advances. In other words, even if this is a personal
obligation to the spouse who incurred them, the ACP may still
be compelled to advance in order to satisfy that obligation.
Example: Ms. Gonzaga was sued for estafa and she is civilly
liable for 1 million but she has no sufficient property to satisfy
the judgment of 1M, the creditor may go after the ACP. And
the ACP cannot refuse payment simply because the obligation
is personal to Ms. Gonzaga because by virtue of par. 9 of art.
94 the ACP may be compelled to make the advances. The only
consolation there is upon dissolution of ACP, if there is enough
property left, whatever advances that the ACP may have been
compelled to make can be deducted from the share of Ms.
Gonzaga at the time of the dissolution. BUT that is only
condition upon the existence of community assets at the time
of liquidation. If at the time of liquidation, nothing remains in
the ACP because the obligation chargeable against the
common property is more than the value of all existing
common properties, there would be deficit. So at the end of
the day, the ACP is prejudiced even if the obligation is
supposed to be the personal obligation of Ms. Gonzaga.
So obviously, the benefit of advance reimbursement
mechanism is for the protection of creditors. This is intended
to protect the creditors and to ensure that third party
creditors are paid.

10. Chargeable against the ACP is litigation expenses

between spouses. So if there is a dispute between the
spouse and a case is filed in court between the spouses which
is filed by one against the other, any litigation cost is
chargeable against the ACP unless the litigation is established
to be groundless. If groundless, the litigation expenses will be
charged against the personal account of the spouse who
initiated the case. They should be shouldered respectively by
the spouses in their own personal capacity, not chargeable
against the common fund. BUT normally, if it is not
groundless, chargeable against the common fund.

Okay what happens if the debts and obligations chargeable

against the ACPR are more than the assets? So obligation >
assets of the ACPR. For example, the total obligation, in art 94
except par 9, is 1 million; but the absolute community only
has 500,000. So there is a deficiency of 500,000. So how is
the creditor supposed to be protected or paid by the
deficiency of 500,000?

Paragraph 9 contemplates only of an antenuptial debt that

does not redound to benefit of the family. So if the obligation
incurred is during the marriage and does not redound to the
benefit of the family, it is not antenuptial and since it did not
benefit of the family, it is a personal obligation of the spouse
who incurred it. AND SINCE IT DOES NOT FALL UNDER
THOSE ENUMERATED IN PAR.9, it cannot avail of the
advance reimbursement mechanism. So the third party
creditor there cannot compel the ACP to advance the
payment, it is not covered.

Under art 94, it says there that, in case of deficiency, in case

the absolute community is not sufficient to pay off all common
obligations, the spouses shall be solidarily liable for the
remaining balance, through their respective separate
properties. First, by the fruits of their respective properties,
and if not sufficient by their separate properties themselves.
The law says solidarily liablewhat does this mean? When
the spouses are solidarily liable it means that the entire
obligation maybe recovered from both- 50-50 or it maybe
recovered from either of them but whoever was made to pay
for the entire obligation has the right to collect the share of
the other. So for example the total obligation is 1 million, the
assets of the absolute community is only 500k so there is a
balance 500k. The 500k is now the solidary liability of both
spouses. So the creditor has the option, he may sue, recover
the remaining 5ook from either of the spouses, esp if the
creditor believes that only one of them has the sufficient
separate property to pay. Its possible that only the husband
has the capacity, the wife is just a plain housewife no
separate property so the creditor can collect from the
husband alone and demand from the husband the entire 500k
and the husband cannot refuse payment of the entire balance
of 500k, by just saying that were supposed to sjhare this,
250k each because we are solidarily liable- that is not a
defense because it is the nature of solidary liability that the
entire obligation may be recovered from either of them. The
only remedy of the one compelled to pay the entire balance is
the right to ask for reimbursement from the other. The
reimbursement is limited only to the share of the other who
was not made to pay for the entire obligation. So if the
creditor sues only the husband for the 5ook and the creditor
obtained a money judgement for the entire 5ook, that 5ook
may be recovred from the husband alone, against his
exclusive, separate property. The husband cannot decline. But
the husband can demand reimbursement from the wife to the
extent of 250k. again if the wife cannot, because she has no
property, the husband is prejudiced. Thats the essence of
solidary liability.

Question: atty, what if there is nothing left in the absolute

community to pay for the obligation, what is the remedy for
the creditor?

Or if both the spouses have financial capacity to pay, the

creditor has also the option to go after both and demand
payment of 250k from each of the spouses.

Atty T: Well!!!! Lets just hope the spouse-debtor wins in a

lotto and his financial condition improves!!! Okay? Its always
subject to future condition. But of course the principle of
prescription now applies. Or if the spouse-debtor files a
petition in court for insolvency- a remedy for someone buried
in debt to clear him/herself from any obligation. For a natural
person, once you obtain an order of release you are in effect
given a new lease in life. You cannot anymore be compelled to
pay even if your financial condition improves. Unlike if its a
corporation where it is always subject to a improvement
condition of the same. But, that will be your official record. Its
not also good to be officially declared as insolvent. Thats not
a good record for purposes of applying for credit line from
banking institutions.

This mechanism is obviously intended for the benefit of the

creditor. So that the creditor has a leeway whether to go after
both of go only after one of the spouses.

TAKE NOTE: The only items that may be subject of the

advance
reimbursement
mechanism
are
those
mentioned in par. 9 support of illegitimate children of
either spouse, antenuptial debts that do not redound to the
benefit of the family, and liability arising crime and quasi
delict.
What if the obligation is one that is incurred by either
spouse without the consent of the other during the
marriage and does not redound to family?
ANSWER:
(a) An obligation incurred DURING the marriage is NOT an
antenuptial debt, it does not fall under par. 3 neither under
par. 9.
(b) An obligation incurred by either spouse without the
consent of the other during the marriage and does not
redound to the benefit of the family is not chargeable against
ACP neither can it avail of the benefit of advance
reimbursement mechanism because it does not fall under the
items enumerated in par. 9.

Question: sir kung wala najuy exclusive property ang wife, dili
sha ka reimburse, so wala jod?
Atty T: the husband cannot.. the husband can always sue the
wife for reimbursement but the husband will end up with an
empty bag. You will have a judgement favourable to you but
you cannot extract blood from stone if the wife has really no
property, what can we do? Thats empty judgement. So moral
lesson there, choose your spouse! Wisely. youre even
supposed to vote wisely, what more, marry wisely!

So lets go to ownership, enjoyment, administration and

disposition of absolute community property. This is one of the
most important provisions. There are many cases involving
this provision- disposition of common property. This is spelled
out under art 96, insofar as absolute community property is
concerned. Take note that this provision under 96 is absolutely
the same with conjugal property community under art 124. So
exactly the same. The case there that I assigned, you will
realize that all those cases involve conjugal partnership of
gains. There was not a single case which involved absolute
community property. But for purposes of our discussions, as I
said these provisions are exactly the same, the same
doctrines enunciated in these cases also equally applies to
ACPR.
NOW WHAT DOES ART 96 SAY? Art 96 consists of 2
paragraphs. 1 there is says the administration of absolute
community property shall be jointly exercised by both
spouses take not! The rule there is JOINT ADMINISTRATION.
So gone are the days when only the husband can administer
absolute
community
properties.
But
if
there
is
DISAGREEMENT, the HUSBANDS DECISION PREVAILS. But the
WIFE HAS THE RIGHT TO GO TO COURT ask for relief within 5
years from the date of the contract implementing the
husbands decision. TAKE NOTE.

same contemplates of ACTS OF ADMINISTRATION. Meaning,

acts which DO NOT INVOLVE disposition, alienation,
encumbrance, sale. Acts of administration DO NOT INVOLVE
TRANSFER OF OWNERSHIP. So if the husband performs acts of
administration and the wife objects, the first par if art 124 and
96 provides that the decision of the husband prevails but the
wife has the right to go to court.
The second par according to this view, contemplates of
alienation, encumbrance, disposition. If the act of either
spouse involves these acts, without the consent of the other,
any alienation, encumbrance, disposition, is VOID; but the
transaction serves a continuing offer on the part of the
consenting spouse and the third party WHICH MAY BE
PERFECTED the moment the non-consenting spouse consents
eventually, or when the court gives its authority.
So for authors and authorities who adhere to this view, the
first paragraph only consists of ACTS OF ADMINISTRATION, the
second paragraph to ACTS OF ALIENATION, DISPOSITION,
ENCUMBRANCE.
So when the sale/disposition is done, even if it results to
disagreement, the sale/disposition should be void= 2nd
paragraph governs.

So if the husband decides to lease out a property, but the wife

objects, disagreement results, the husbands decision
prevails. The wife may go to court for relief.

If its only an act of administration and there is disagreement,

only VOIDABLE AT THE ISTANCE OF THE WIFE WITHIN 5
YEARS.

In the case of Ravena v Abrilye [?] ( wa ko kabasa pas kaso

guys hahaha) the husband sold a property belonging to the
conjugal partnership of gains. When the wife knew about the
husbands decision, the wife objected. In fact the wife, through
the lawyer, wrote a letter to the prospective buyer that, she is
objecting to the sale. So when the matter reached all the way
up to the Supreme Court, the issue was WON the sale of the
property belonging to the conjugal partnership of gains is
valid, considering that it was only executed by the husband
over the objection of the wife.

Thats the opinion of those writers, I think they also have a

point there. But Ravena v Abrille case, disproves this view bec
in this case, the sale made by the husband over the objection
of the wife, to a property belonging to the conjugal
partnership, was only considered VOIDABLE, not void.

The supreme court said, consistent with the 1 st par of art 124
(which is just the same with art 96) if a property belonging to
the conjugal partnership of gains or the absolute community
property for, that matter, is sold or disposed of by one spouse
without the KNOWLEDGE & CONSENT of the other, the sale or
disposition, or encumbrance is VOID.
Take note! Sale or disposition, encumbrance, alienation
WITHOUT THE KNOWLEDGE AND CONSENT OF THE OTHER
SPOUSE = VOID
But in the case of Ravena v Abrille, the SC said this is not the
case here. The sale was done over the objection of the wife
meaning, THERE WAS DISAGREEMENT. Bec the wife knew
about the intended sale and the wife, OBJECTED. There was
disagreement.
And so pursuant to the 1st par of the art 124, it is only
VOIDABLE at the instance of the wife. The wife has 5 years,
from the time the sale was executed by the husband, to go to
court, which the wife did. It was well within the prescriptive
period of 5 years to nullify the deed of sale.
Some writers of civil law ( you can find this in the book of
Legarda, Family Law) particularly Dean Gupit, is of the opinion
that the first paragraph of art 124 and art 96 which are the

In the subsequent cases of Fuentes v Roca, the husband there

sold a property belonging to the conjugal partnership while
the wife was in Quezon City, but the husband sold a property
located somewhere in Mindanao, at the time of the sale wife
was in Quezon City. It was claimed that the signature of the
wife appearing in the deed of sale was forged, the SC there
was sufficient evidence that indeed there was forgery of the
signature of the wife and so therefore, the sale of a property
was done by the husband without the consent of the wife. And
therefore it is VOID. The same ruling was applied in the case
of the spouses Gyang (???) v Court of Appeals. The sale
executed by the husband without the consent of the wife, I
think the wife there was somewhere else, the Supreme Court
said, the sale is VOID. Without the consent of the other
spouse.
But in these 2 cases, Fuentes v Roca, Gyang v CA, the wives
there were obviously unable to participate in the management
because they were far away. So consistent with the 1 st par of
art 96 and 124, the sale made by the husband alone is VOID.
I have yet to see a case where the disposition was made
without the consent of the other but both of them are jointly
administering the property.
So as it is now, it would appear now that for purposes of art
96 and 124, its not relevant at all to distinguish whether both
of them are jointly administering the property or not, or if one
of them is only the one administering the property. Because it
would appear that if it is DISPOSITION, ALIENATION,
ENCUMBRANCE of a property without the consent of the other,

whether they are jointly administering the property as in the

case of Ravena v Abrille, the transaction is really VOID bec its
DISPOSITION! A property belonging to both spouses cannot be
disposed by only one of them.
So it is not correct to say that the first par of art 96 and 124
contemplates only of administration.
What distinguishes the first par from the second is that in the
first par the disposition must be with knowledge of the other
spouse and the other spouse did not consent or objected and
so therefore DISAGRERMENT resulted.
But if it was done without the KNOWLEDGE AND CONSENT of
the other, therefore there was no DISAGREEMENT because the
other spouse had no knowledge it is VOID, so you apply the
second par.
Ravena v Abrille has not yet been abandoned or superseded
by the SC. It cannot be said that this case has been
overturned by the cases Fuentes v Roca and Gyang v CA, bec
in these two subsequent cases, the wives were unable to
participate in the management and so therefore it falls under
second par which provides that in a situation where one
spouse in incapacitated or is unable to participate in the
management the other be assumed with the exclusive power
of administration, but this power does not include the
authority to alienate, encumber, and dispose bec for these,
the consent of the spouse is necessary. Or if the other spouse
is incapacitated to give consent, courts authority is
necessary.
So as it is now, the rule is, applying Ravena v Abrille: if the
other spouse knew about the disposition and the other spouse
did not consent as she in fact objected and disagreement
arises, it is only VOIDABLE. Wife has 5 years from the date of
the deed of sale within which to go to court and ask for proper
relief, the relief there may be a declaration of nullity of
transaction. But if it is done without the knowledge or
consent, as in the case of Fuentes v Roca and spouses Gyang
v CA, it is VOID.
The ruling in Ravena v Abrille has been criticized, many said
that the transaction there should have been declared VOID
bec the rule that rule that it is voidable refers only to the acts
of administration. But there is no jurisprudence that supports
this view while this may be consistent with the language of
the provision.
So you differentiate now if the there is DISAGREEMENT, or
there was DISPOSITION WITHOUT CONSENT.
Now what about ACTS OF ADMINISTRATION PERFORMED BY
THE WIFE OVER THE HUSBANDS OBJECTION? It is not always
that the husbandd decision prevails in the family. There are
occasions where its the wife who wears the pants in the
family. So when the wife makes a decision, the husband
objects, and disagreement arises, then wife insists: whats the
status of the transaction?
You cannot apply the first par of art 96 and 124 bec the first
paragraph contemplates of a situation where the husband is
the one who exercises the acts of administration over the
objection of the wife resulting in disagreement. Under the first
par its the husbands decision which prevails, the wife may
go to court. But what if the situation is the reverse?

According to Sta. Maria, since this is not covered by the first

par of art 96 and 124, the husband may assail the transaction
as an unenforceable contract. It was done by the wife without
authority. Any contract entered into without authority is
unenforceable contract. I think thats under 1308 of the civil
code. This opinion of Sta Maria is premised on the theory that
insofar as acts of administration are concerned, the law favors
the husband consistent with the first par of 96 and 124. So in
case of disagreement only the husband has the right act of
administration but the wife has the right to go to court not the
reverse! In case of disagreement the wife has no authority to
perform acts of administration. Any act of administration
performed by the wife without consent of the husband is an
unenforceable contract or worse, according to Sta Maria, the
husband can even ask the court to declare the contract as
void having been entered into by the wife without the
provisions of the law. Bec if you look at the first par of art 96
and 124 it can be inferred that really in case of disagreement
the wife has no right to insist to perform acts of
administration. Its only the husband.
But when it comes to disposition, alienation, encumbrance, it
now involves transfer of ownership, the rule is always that, if a
property belonging to the absolute community or conjugal
partnership of gains is disposed of, alienated, encumbered, by
either of the spouse, not just the wife or the husband, that
transaction is always void. Take note! The voidness of the
transaction, refers to the entire transaction, the voidness does
not only refer to the share of the non-consenting spouse. If
you happen to buy a property, which is a common property,
belonging to both the husband and the wife, and only one of
them executed the necessary deed of conveyance and
consequently the non-consenting spouse questioned the
transaction, you cannot rest comfort in the thought that
anyway, half of the property is validly obtained. That is not
a correct argument. Even if insofar as the share of the
consenting spouse is concerned that portion is also void.
Because until and unless the property regime is liquidated,
none of them can dispose of their respective shares. Any
disposition is void. The entire transaction is void. So be careful
with buying with properties which are common to spouses but
only one of the spouses executed the deed of conveyance,
because the entire property maybe recovered by the nonconsenting spouse. Take note of that.
While in a way, the property which is owned by both spouses
is in a way governed by a special kind of co-ownership, the
law says special kind of co-ownership, dont be misled by
that description given by authors and the law itself. Because
the ordinary rule on co-ownership is such that every coowner has the right to dispose of his or her shareeven without
the consent of the other owner so if the property is owned by
5 co-owners, their share is 1/5 each, and they do not have a
specific designated portion of the property, just an abstract
portion of 1/5. Now if you are one of the 5 co-owners under
the rule on co-ownership you always have the right to dispose
of your 1/5 even to third parties, subject of course to the right
to redeem by the other co-owners. But the theory is any of
the co-owners can dispose of their share not if the property is
owned by the spouses, bec neither of them can dispose of
their share during the existence of the marriage or during
existence of their property regime.
It is only during the dissolution, separation of property is
effected that they may now appropriate their respective share
and dispose of the same. Thats a common mistake of the
people, that anyway the husband consented to the sale so at

least I get the the share of the husband- that is not

accurate. The entire sale, the entire transaction is void.

2nd hour
Article 92 enumerates the exclusive properties. There are
three properties:
1. Properties acquired by gratuitous title during the
marriage
2. Properties for exclusive and personal use
3. Properties acquired by either spouse before the
marriage who has legitimate descendants by former
marriage
What is the rule if any of this exclusive property is sold during
the marriage? What will become the proceeds of the
marriage?
For example Ms. Gonzaga inherited a property during
her marriage with Mr. Cid, under Article 92 (1) thats
an exclusive property.
What happens if Ms. Gonzaga during the marriage sells the
piece of land to someone and obtains in return 1M as
consideration for the sale? What will happen to the 1M that
Ms. Gonzaga receives as proceeds of the sale? Or exchange
the piece of land with a sports car? Will the sports car become
common or remains exclusive?
There are two conflicting views on the matter.
o
One view is to the effect that if a property which is
exclusive is converted into something else, like if it is
sold during the marriage or it is exchange with
something else. The property received in return
remains exclusive, so a piece of land that the
spouse inherited during the marriage which is
exclusive under Article 92, if this is sold during the
marriage, the proceeds remains exclusive.
o
The other view is to the effect that if an exclusive
property is converted into something else, like when
it sold or exchange with something else, the property
which either spouse receives in return for the
exclusive property becomes common. So if Ms.
Gonzaga inherited a piece of land during the
marriage, if she sells it during the marriage, the
proceeds 1M for example becomes common.
So what then is the better view?
According to Sta. Maria, the better view is the 2 nd when an
exclusive property is converted into something else, the
property received in exchange for the exclusive becomes
common.
-

The justification being it is only in an absolute

community of property regime, general rule is all
properties acquired during the marriage are
common. The only exceptions are the contractual
exclusion and statutory. If the property exchange
with something else, that something else that either
spouse receives in return or in exchange is neither
contractual because its not the one contemplated in
the marriage settlement nor statutory because its
not the one mentioned in Article 92. So if the
property is changed into another form it is taken out
of the context of exclusive property and becomes
common. It will now fall under the general rule that
all properties acquired during the marriage are
common.

The justification to those who adhere to the first view (remains

exclusive) is that if the property received in return for
exclusive property considered common then it will circumvent
the law that considered the property exclusive. But the
counter argument to that is that if the spouse who owns the
exclusive does not want that the exclusive property becomes
common then all the spouse has to do is preserve it, do not
convert it to something else. Once he or she decides to
convert it to something else then he is deemed to have
waived the rule on exclusive property. And he or she is now
risking that the exclusive property becomes common when
converted to something else.
Q: Are there instances wherein one spouse owns an exclusive
real property and then a contractual exclusion and then it is
also stipulated in the MS that if he sells the land the proceeds
will still be exclusive. Will the money remains exclusive?
A: There is no prohibition in fact under the Family Code, the
primary rule is the MS. So what is stipulated in the MS should
be upheld so long as it will not run counter the provisions of
the Family Code. There is no prohibition to that effect. What I
said earlier which cannot be done is example in your MS
stipulate that whatever you inherit during the marriage would
be common, that would be a circumvention of Article 92
because 92 is statutory exclusion.
While the parties are free to stipulate which properties should
be exclusive, which property should be common, this is
allowed so long as it does not contrary to any provisions of the
law. The obvious purpose of Article 92 is really to make this
property exclusive, so you cannot stipulate anything that runs
counter this provision.
When does liquidation takes place?
-

Liquidation takes place when the

community of property is terminated.

absolute

When does absolute community of property regime end?

There are five instances under which absolute community of
property is deemed terminated and therefore liquidation
follows as a matter of course.
1.

2.
3.
4.
5.

Either or both of the spouses die, death of either or

both terminates the marriage and with it comes the
termination of the property regime. If the property
regime that governs their property relation is that of
absolute community of property regime then that
kind of property regime is deemed terminated.
When there is decree of legal separation. One of the
effects of legal separation is the termination of the
property regime.
When there is declaration of nullity
Annulment of marriage
When there is judicial separation of property.

DEATH
What happens if one of the parties dies?
The marriage is terminated and along with it termination of
the existing property regime. Under rule 103 for absolute
community of property regime and rule 130 for
conjugal partnership of gains, the rule requires that when
the marriage is terminated and the property regime is
terminated along with it, liquidation follows. And the
liquidation under 103 and 130 as a GENERAL RULE should be
done in the same proceedings for the settlement of the estate
of the deceased spouse. So if someone dies, succession takes
place. And succession requires the settlement of the estate of
the deceased. This is where the obligations of the deceased
person shall be settled and whatever remains of the property
or estate shall be divided among the heirs, this is settlement
proceeding. If there is a will then there will be a testate
proceedings, the division, liquidation should be done in

accordance with the wishes of the testator. If there is no will,

intestate settlement of estate will govern. So the provisions of
the Civil Code apply.
The general rule under 103 is the liquidation shall be done in
the settlement of the estate of the deceased but not all times
that this is resorted to by the heirs. So under 103 if there is no
settlement of estate proceeding instituted, the surviving
spouse is required under 103 and 130 to liquidate the
absolute property or the conjugal property as the case may be
within 1 year from death.
-

The liquidation may be done through court

proceeding
which
is
judicial
settlement
or
extrajudicial, within 1 year from death.

What is the effect if no liquidation is effected within 1 year

from death?
Under 103 and 130, the first effect is any disposition of the
property of the part of the deceased is void and in case the
surviving spouse contracts a subsequent marriage the
property regime that will govern the subsequent marriage is
that of a complete separation of property regime.

pertains to the shares of those who did not consented of the

sale. TAKE NOTE OF THE CASE! VERY IMPORTANT CASE! This is
one of the instances where the SC did not actually completely
agree to the express provision of the law. Without this case
one would easily say that it is void but SC has its own way in
making things complicated. Dont be mislead by 103 and 130,
understand it in the context of this recent decision.

CONJUGAL PARTNERSHIP OF GAINS

Before the Family Code this was used to be the default
property regime but now this is a regime of choice. This can
only happen if the parties stipulated in the MS.
When does it begin?
-

The moment the marriage is celebrated. The

conjugal partnership of gains is primarily governed
by the MS, the contract of partnership then the
Family Code. These are the primary basis for that
governs the provisions of the property relations
between the spouses.

There are two significant effects if no liquidation is done by

the surviving spouse within 1 year from the death of the other.
But the provision in 103 and 130 which says that any
disposition without liquidation is void and is not accurate.
TAKE NOTE not an accurate rule.

The common property (in absolute community of property

regime referred to as community property) in conjugal
partnership of gains is referred to as conjugal property.
So when you say conjugal it is both owned by the
husband and the wife.

In the case of Protacio Go vs Ester Cervacio, this is a case

that happened in Maasin City. This is a property that belongs
to the conjugal partnership of gains of the spouses Protacio
and his wife. When the wife died the father and one of the
children Rito Go sold a portion of the estate to Ester Cervacio.
The other children who did not sell their shares filed a case to
declare the transaction between Protacio and Rito on one
hand and Ester Cervasio on the other void under Article 130
which is similar to 103. They are contending that since there
was no liquidation, any disposition of the estate of the
deceased wife is void. But the SC ruled that its not
necessarily void, the disposition of the estate without the
required liquidation being made before the disposition is not
necessarily void. It is only void if the property sold will impair
the right of the others who did not agree to the disposition
because what will happen there is when the wife died the
property now being inherited by the surviving husband the
rest of the children under co-ownership. Upon the termination
of the co-ownership each heir shall be entitled to their
respective shares. If one or some but not all of them dispose
their respective share before the liquidation, the disposition
shall be valid in so far as it pertains to the share of those who
consented to the disposition. What will become void is only
the portion which will correspond to the shares to those who
did not consent to the disposition. The rule that provided in
Article 493 of the Civil Code which says that every co-owner
has the right to dispose of his/her share in the property in
common. Now in this case of heirs of Protacio Go vs Ester
Cervacio and Rito Go it turned out that the portion which
Protacio go (the father) and the Rito sold to Cervacio did not
even involved the respected shares of both, meaning the
portion sold was even less than what the two of them were
entitled to after liquidation. Supreme Court said that in so far
as the sale that corresponds to the shares of Protacio and Rito
Go is perfectly all right even in the absence of liquidation. For
any way upon liquidation the shares of the other heirs who did
not consent to the sale will not be affected, meaning have the
transaction involved the portion of the estate more than what
the two of them were entitled to inherit upon dissolution the
excess would have been void but in this case it is less than
what the two are entitled to inherit.

What are the properties which form part of the conjugal

partnership of gains?

103 and 130 which says that any disposition of the property
without liquidation conducted or made in a period of 1 year
from the death has to be qualified. It is void only in so far as it

Generally, under a conjugal partnership of gains the

spouses place in a common fund the proceeds,
products, fruits and income of their respected
separate properties TAKE NOTE!
Properties acquired by either or both spouses
through their efforts or by chance
Upon the termination of the marriage and dissolution
of conjugal partnership of gains, all net profits or
benefits obtained by either spouse, so whatever is
left upon liquidation and termination are conjugal
properties, both owned by the husband and wife.

These are the properties generally which form part of the

conjugal partnership, specifically what are these properties?
1.

2.

Properties which acquired by either spouse by

onerous title during the marriage. So if either spouse
acquires a property by onerous title meaning not
gratuitous like purchase or sale it has valuable
consideration other than the pure liberality of the
grantor, conjugal.
Properties acquired by labor, industry, work or
profession by either spouse. If either or both is
working, whatever earning the spouse receives in the
exercise of his profession thats a property that he
earns through effort, work, industry, labor or
profession thats conjugal. Even if he earns it by
himself alone because suppose to be the fruits of his
labor and in conjugal partnership of gains the fruits
are conjugal.

3. The fruits of the common, say for example they purchased

a saw? and a butakal. When the saw and the butakal
made love, they produced piglets. The piglets are also
conjugal because these are the fruits of their common
property or the net fruits of their separate. Take note. Say for
example at the time of the celebration of the marriage, ms
Gonzaga brought into the marriage a saw or anay. The anay is
exclusive. During the marriage, the anay produces piglets.
Under this provision the net fruits of the separate property
become conjugal.

4. The share of either spouse in hidden treasure. Article 438 of

the civil code provides that if the hidden treasure is found of
someone elses property, the owner of the property gets to
own the entire hidden treasure.
If the hidden treasure is found by someone else in anothers
property, the finder is entitled to of the hidden treasure.
Relating this to the conjugal property of gains (CPG), if ms
Gonzaga, the wife, finds a hidden treasure in her own
exclusive property under article 438, ms Gonzaga gets to own
the entire hidden treasure. But under CPG, since this is her
share in the hidden treasure this is conjugal, property
acquired by chance.
If ms Gonzaga finds the hidden treasure in anothers property,
ms Gonzaga is entitled to get of the hidden treasure.
Which of the hidden treasure forms part of the CPG.
5. Property acquired though occupation, such as hunting and
fishing. Take note that under the second paragraph, properties
acquired by labor, industry, work or profession by either
spouse are conjugal. But in paragraph 5, it also speaks of
occupation. But why is this placed in a separate paragraph?
The answer is because occupation is understood in a different
context, not in the context of work, industry, or profession.
Occupation there has a technical meaning under the law on
property. Under the laws of property, there are various modes
of
acquiring
ownership;
donation,
sale,
succession,
occupation. Occupation is a mode of acquiring ownership
where the property acquired has a no known owner. In
donation, the donee acquires the property previously owned
by the donor. There is a previous owner. But in occupation, the
one who acquires a property through occupation acquired it
the first instance that he becomes the owner because there is
no known owner. That is why the law specifies hunting and
fishing because if you happen to catch fish while fishing in the
ocean, the fish or school of fish that you happen to catch
there has no known owner. You catch it, you become the first
owner. That is property acquired through occupation. When
you happen to catch an anaconda while hunting in the wild,
the anaconda has no known owner. You catch, you become
the first owner.
6. Livestock existing at the time of dissolution in excess of
what was brought into the marriage. Say for example, Ms
Gonzaga has a livestock, at the time of the celebration, 10
carabaos. But at the time of the dissolution of the partnership
there are already 100 carabaos. The 90 carabaos which are in
excess of the 10 carabaos that you brought into the marriage
are conjugal.
7. Property acquired by chance. Losses shall be borne by the
spouse who incurred the loss.
Take note that in article 116(dili sure si sir if mao ba ni na
article), the presumption is that all properties acquired during
the marriage are presumed conjugal even if the property is
registered in the name of only one of the spouses. And even if
the property is acquired during illicit cohabitation with
someone else, the presumption it is conjugal. Take note of the
cases Villanueva vs CA and Belcodero? vs CA.
In Villanueva, the husband there abandoned his legitimate
family to cohabit with his mistress. During his cohabitation
with his mistress, the husband acquired properties. One of the
properties is registered in his name. When the husband died,
the legitimate family sued the mistress to recover the
property, the mistress argue that the property belongs to her.
But SC said, general rule is all properties acquired during the
marriage are presumed conjugal even if this was acquired
during cohabitation with someone else, the presumption is
that property was acquired during the legitimate marriage and
therefore that property belongs to that legitimate marriage. It
is the burden of the other party who claims otherwise to prove
that it was acquired by the mistress.

The same was applied in the case of Belcodero. In Belcodero,

the husband abandoned his legitimate family to cohabit with
his mistress. During his cohabitation with his mistress, the
husband acquired property. In order to keep it away from the
reach of the family, the husband made it appear that the
property was acquired by mistress by having it registered in
the name of the mistress. So when the legitimate family sued
to recover the property, the mistress argued that the property
was acquired during cohabitation and in fact it was registered
in the name of the mistress. but SC said that since the
property is acquire during the existence of the legitimate
marriage, it is conjugal. It is the burden of the mistress to
prove otherwise which the mistress failed to do in this case.
What are the exclusive properties of the spouse?
1. Properties brought by either spouse to the marriage. This is
opposite to Absolute community. In ACP whatever is owned by
either spouse in the exact moment of marriage becomes
common. However in CPG, whatever is owned whatever is
owned by either spouse in the exact moment of celebration of
marriage remain their exclusive properties. But the fruits and
income of their exclusive are conjugal. What do you mean by
fruits? Mango fruits? Banana fruit? (har sir. Har) fruits refer to
civil, industrial or natural improvement. It is the product of the
principal.
Examples of industrial fruits are buildings that are constructed
on the land. The building is the fruit, the land is the principal.
Natural fruits are trees, plants. You plant a mango tree, that
mango tree is a fruit. It is an improvement to the land. The
mango tree is the fruit, the land is the principal. And civil fruits
are rentals.
If at the time of the marriage, Ms Gonzaga owns an apartment
or a condominium. If she leases this out, the rentals are
conjugal.
2. Properties acquired during marriage by gratuitous title but
the fruits are conjugal. This is not exactly the same as
properties acquired by a gratuitous title under ACP. Although
both involve properties acquire by gratuitous title as exclusive
but they are not exactly the same. In 92 which are the
exclusive property of ACP, the property acquired by gratuitous
title is exclusive but there is an exception, that is when the
grantor provides that it forms part to the community and the
fruits of that exclusive remain exclusive under ACP. In CPG, all
properties acquired by gratuitous title during the marriage are
exclusive and there is no exception.
3. Property acquired by right of redemption, barter or
exchange using the property belonging to either spouse. This
provision is not adapted under ACP. Under this rule, whatever
property that either spouse acquires by right of redemption or
by barter or exchange using their exclusive property remains
their exclusive property. So if ms Gonzaga, at the time of the
marriage, already owned a brand new bmw, under CPG this
remains her exclusive. But if during the marriage, ms Gonzaga
decides to barter her bmw with a house and lot, the house
and lot is also exclusive. This is opposite to the rule under ACP
because where the property received in return of the
exclusive becomes absolute community. Here it remains
exclusive.
What about right of redemption. This contemplates of a
situation like for example, ms Gonzaga before the marriage
constituted a real property Mortgage over her exclusive
property to guarantee a loan. During the marriage, ms
Gonzaga failed to pay the loan and so the property mortgage
was foreclosed. In order to redeem the property, conjugal
funds were used to pay off the obligation. So when the loan
obligation was already paid in full, the mortgage is already
released to ms Gonzaga even if the money used in redeeming
the property by paying the loan obligation belongs to the
conjugal partnership. The property redeemed remains
exclusive. But since part of the redemption price paid for was

out of the conjugal funds, the conjugal partnership is entitled

for reimbursement.
What about if the property is sold and the proceeds is
received, the cash that the spouse receives as proceeds of the
property sold? One view holds that, the proceeds is
considered fruits and therefore, conjugal. Other view holds
that, there was exchange when the exclusive property is sold
and the case received there was only a barter of property.
Therefore, a property received by virtue of barter or exchange
is exclusive by applying the analogy on property acquired by
barter or exchange. But the better view is when the exclusive
property is sold during the marriage, the proceeds equivalent
to the value of the property at the time of the marriage should
be considered exclusive. Because it is the cash representation
of the principal property but any excess should be considered
conjugal because this is already fruits or income. If the
exclusive property is 1 million , during the marriage, and it
was sold for 2 million, the 1 million is exclusive to the owner
of the exclusive property and the other 1 million is conjugal.
4. Any property acquired using the exclusive money of either
spouse. The operative fact there is the money used in the
acquisition of the property should be exclusively owned by
either spouse. If the property is acquired is partly using the
exclusive and partly using the conjugal funds, the property is
conjugal but the other spouse is entitled to reimbursement.

PERSONS 9/24/15- make up class-library

So, whats the rule if before the marriage either spouse
bought on installment a property, but the purchase price,
therefore is fully paid during the marriage out of the funds of
the conjugal property? Will the property become the property
of the partnership? Or will it remain exclusive property of the
spouse who purchased it on installment?
Take note: the transaction started before the marriage
but completed during the marriage, involving
acquisition of property by one spouse.
Ans: the rule says that it depends, if the title to the property
is transferred before the marriage, then the property shall
belong to the spouse who acquired it, but if the title is
transferred during the marriage it becomes the property of
the conjugal partnership.
But the most critical issue there is; when is there transfer of
title? When is ownership deemed transfer from the seller to
the buyer? So that we can apply the rule.
For purposes of this article we need to distinguish between
two types of transaction, one is contract of sale, the other is
contract to sell.
Contract to sell- the parties expressly stipulate that the
ownership or title over the property is transferred only upon
the full payment of the purchase price.
Contract of Sale(as like a deed of absolute sale) ownership
or title to the property is transferred the moment there is
delivery, regardless of whether the purchase price is fully
paid.
So whats a typical example of a contract of sale?
This is illustrated in a transaction involving motor vehicle. You
go to Toyota, Honda, Nissan, whatever. You purchase a car on
installment, thats the common now installment, 3 years, 4
years, 5 years, and you are only required to pay a
downpayment of certain percentage of the purchase price,
like 20%, 30% or 50% the remaining balance payable within
3years, 4 years, 5 years, depending on the scheme you are
comfortable with. Now, under this transaction when the

buyers pays the downpayment, lets say 20% or 30% the

buyers gets the item, you go out of Toyota or Honda, you drive
your brand new car, thats Delivery, and by that precise
moment the buyer becomes the owner. But take note the
buyer only made payment 20%.
So, if before marriage, Ms. Gonzaga bought on installment a
new BMW sports car, payable in 5 years, she made a
downpayment of 50%. So the moment Ms. Gonzaga gets the
BMW she paid 50%, she gets the BMW, she drives it, she
becomes the owner. Now supposed, on the 3rd year, Ms.
Gonzaga got married, and the installment due on the 3 rd and
4th and 5th year are paid out of the conjugal funds. So part of
the purchase price is paid for out of the exclusive money of
Ms. Gonzaga and part is paid for at the expense of the
conjugal partnership. Since this is a contract of sale
where title of property is transferred to the buyer upon
delivery, then under this rule the BMW remains to be
the exclusive property of Ms. Gonzaga, even if the
balance was only paid during the marriage and out of
the partnership funds. Thats contract of sale.
On the other hand, CONTRACT TO SELL, is a transaction
where by the parties expressly stipulate that the ownership of
the property subject of the sale, shall only be transferred to
the buyer upon full payment of the purchase price. This is the
kind of contract that buyers and seller of real estate usually
enter into. like you buy a condo unit or a house and lot in a
particular subdivision, you dont immediately execute a deed
of absolute sale, deed of absolute sale shall only be executed
upon full payment of the purchase price, but at the start the
preliminary document that the parties will have to sign is just
a CONTRACT TO SELL, so pending the full payment of the
purchase price the ownership remains to the seller.
So, if Ms. Gonzaga,before marriage purchase on installment a
house and lot, payable in 5 years, she was made to execute a
contract to sell, expressly stipulating that ownership shall be
transferred to her upon full payment of the purchase price.
During the first two years she paid the installment due using
her exclusive money, but on the third year she got married,
and during the third, fourth and fifth year she paid the
corresponding installment due out of the conjugal funds. So
lets say the balance of the purchase price was duly paid out
of the conjugal funds on the fifth year during the existence of
the marriage. The seller now upon full payment of the
purchase price will now execute a deed of absolute of sale.
The buyer whose name will be reflected in the deed of
absolute sale is not Ms. Gonzaga, but the partnership,
meaning Ms. Gonzaga and her beloved husband, because the
property belongs to the partnership. Okay? So the
determining factor there is look at the nature of the
transaction.
Now lets go to the rule governing a situation when before the
marriage, one of the spouses extended loan to someone, and
during the marriage that spouse received certain amounts
from the borrower in payment of the loan. Okay? So lets say
Ms. Gonzaga before the marriage, is engaged in the lending
business, she extended loan to various borrowers, say her
classmates in college of law to finance their law education,
when she was still single she extended loan amounting to
5million, payable in 5 years. But on the second year she got
married, and during the existence of the marriage, Ms.
Gonzaga kept receiving payments from the borrowers, Take
note, That these sums of money are received by ms.gonzaga
during the marriage, does it mean to say that these sums of
money belong to the partnership, under the rule that
properties acquired during the marriage are presumed
belonging to the conjugal partnership it does not necessarily
follow.
Now what is the rule that governs this particular transaction?
The answer is it depends.

If the money received during the marriage, is delivered to

ms.gonzaga in payment for the principal amount. TAKE
NOTE, if the payment is for the principal amount, that
money received during the marriage remains to be
ms.gonzaga exclusive property. As we discussed earlier
any property that either spouse owned at the time of the
marriage is their respective, exclusive, separate property. The
principal amount was extended as a loan by ms.gonzaga to
the borrowers, thats her exclusive property. When the
borrower paid the principal amount during the marriage that
payment remains exclusive.
What is the rule if the payment made during the marriage is
for the interest, the rule is it depends.. if the amount received
during the marriage is in payment for the interest that
accrued before the marriage that is exclusive, because the
rule is whatever property either spouse owned at the time of
the celebration of the marriage is his or her exclusive
property. So that interest accrued before the marriage is
exclusive, had that amount been paid before the married it
would have been her exclusive property, so if its paid during
the marriage the rule is it should be exclusive.
But payment received during the marriage for the interest
that accrued during the marriage, thats conjugal, because
that is now consider as fruit or income.
Whats the rule on damages? Lets say during the
marriage, Ms. Gonzaga suffered physical injuries, while she
and her husband are joyriding they figured in a vehicular
accident, ms.gonzaga suffered serious physical injuries, so
she sued the stupid driver, she prevailed in the suit, the court
awarded her 5million in damages for the physical suffering
she endured as a result of the accident. What will become of
the 5million awarded by the court by way of damages?
In the case of Lilius vs. Manila Railroad, this involves a
family, husband and wife and their child who figured in a VA,
they were hit by an on rushing train owned by the manila
railroad, the wife suffered serious physical injuries, after trial
the court awarded certain sum of money by way of damages,
moral damages for the sufferings, the pain that the wife
endured. The SC ruled that since the award of damages is
intended to compensate the injured party for the injury she or
he suffered, that should be his or her exclusive property.
because the pain and suffering are personal to the party
concern.
What about damages arising from breach of contract? The
rule is it depends if the contract is finance by the
partnership, any damages that the court may award arising
from that breach of contract or transaction, it should form part
of the conjugal partnership, but if its personal it should form
part of the exclusive.
This was the ruling of the case of Zulueta vs. PAN American
airways, the husband bought an airline ticket, but the airline
committed a breach of the contract, the airline failed to bring
Mr. Zulueta to the stipulated destination, so he sued for
damages, and he won, damages were awarded by the court
arising from the breach of contract of carriage. the SC said
there is no evidence that the money used in the purchase of
ticket which served as the contract within the party was the
exclusive money of mr.zulueta, so the presumption is it was
bought using conjugal funds, and therefore the damages
awarded by the court arising from the breach of contract,
financed by the partnership should be conjugal. So, again you
determine the source of the funding.
Whats the rule on retirement benefits, annuity,
pension? When you become senior citizens, you retire from
employment, you are leave by your pension, your retirement
benefit, what rule governs the ownership of the pension the
spouse or the spouses respectively earn during their lifetime,
during their remaining days of their lives. The rule is it
depends. If the pension or retirement benefit is given to the
spouse gratuitously as when it is given as a matter of law, or

it is given on pure liberality on the part of the giver, in

consideration for ones good performance while still working,
this is given in a gratuitous manner under the rule the
pension, the retirement benefit shall be exclusive, because
under conjugal partnership of gains properties acquire by
gratuitous title are exclusive.
On the other hand if the pension or the retirement benefit is
onerous in character, because it consists of the accumulation
of amounts deducted from the salary of the employee
concerned and paid to him during retirement thats onerous in
character because actually that amount consisting or forming
part of the pension is actually an accumulation of the salaries
deducted over the years while the employee concerned still
worked for the employer. So the nature of retirement that govt
employees received or those working in private sectors, from
the SSS these are onerous in character because these are
accumulation of the salaries deducted over the years, you
have that in your payroll, if you look at your payroll there is a
portion deducted there I think 500 its SSS or pagibig or
Philhealth, its actually your money deducted from your salary
and over the years it is returned to you in the form of
retirement benefit, thats onerous in character and therefore
belongs to the conjugal partnership. But when it is given to
you by law, for example there is a law pass by congress
requiring employers to provide retirement benefits to all
employees who retired in the age of 70 the giving of the
retirement benefit is by law itself, there is no valuable
consideration given on the part of the employee concern, so it
takes the form of a gratuitous retirement benefit or pension.
What is the rule if an improvement like a building is
constructed on the separate piece of land belonging to
either spouse and the construction is made at the
expense of the conjugal partnership? Lets say
Ms.Gonzaga owns a piece of land, but during the existence of
marriage with Mr. Cid and out of the conjugal funds a building
was constructed, should the building belong to ms.gonzaga
being the owner of the principal property, the land? Or should
the land now become the part of the conjugal partnership she
being married. take note that the law frowns upon
ownership of the land and the building by different
parties, the law as much as possible encourages
ownership of both the land and building by one and the
same party, the reason being that if ownership of the
land and building belongs to different persons it is
receptible to conflict of decisions on how to administer,
dispose and enjoy the property, so this is a fertile
ground for conflict between the land owner and the
owner of the improvement, so to avoid that likely
conflict the family codes precisely provides this rule
when the land is owned by one of the spouse and the
improvement is introduced out of the conjugal funds.
Now, the rule is it depends if the value of the improvement
and the resulting increase in value of the land and the
improvement are more than the value of the separate
property of either spouse, the rule is the house and the
building shall become part of the conjugal partnership,
meaning Ms. Gonzaga losses exclusive ownership over the
piece of land, because the piece of land which used to be her
exclusive separate property now becomes a property of the
partnership being shared by the husband along with the
building. Now, on the other hand if the value of the
improvement and the resulting value of the land and the
improvement are not more than the value of exclusive
property meaning the land the rule is shall the improvement
shall become the exclusive property of the owner of the land,
but either way whether the entire property will go to the
partnership or will go to the spouse concern the other party
shall be reimbursed to the extent of the contribution.
So how do you demonstrate this formula? Lets say the land of
Ms. Gonzaga is worth1miilon, out of the conjugal funds a
building was constructed, worth 1million. Okay so 1million
piece of land, one million building. So what does the rule say?
If the value of the improvement (in our example is 1million)

and the increase in value of both the improvement and the

exclusive property(meaning the land) are more than the value
of the exclusive property. So how do you get the figures here?
You get the value of the improvement which is 1million and
the increase of value of both the land and the building , how
do you get the increase of the value of both the land and the
building? 1 million land 1 million building, 2million? (NO) thats
not the way to get the increase in value, you just dont add
the cost of both, a simplistic demonstration maybe best
described in a situation where you engaged in a business of
manufacturing and selling of puto maya, puto, puto.. simply
things. What would take you to produce a puto maya? You
have the ingredients, sugar, sticky rice, tuno(?)(haha d ko
alam) banana leaf, so 4 ingredients, lets say your aim is to
produce 100 pieces of puto maya on a day, and for you to be
able to produce these number of puto, you need lets say
100worth of sugar, 100 worth of sticky rice, 100 worth of tuno
and 100 worth of dahon saging, so your investment is 400
pesos, you add the cost of each ingredients, so lets say you
produced of 100 pieces of puto, but you are a businessman
you just dont sell at the breakeven, you always anticipate
profit, so your 400pesos investment, you will not sell your 100
pieces of puto for 400, you will only have a break even, so you
anticipate a margin of profit, so lets say for 100pieces of puto
you want to obtain maybe 1000 in a day, so you have a
markup of 600, so thats how you get the increase in value of
both the land and the building. What Im saying is you just
dont add the cost of the building and the land, you just dont
add the cost of the ingredients, there is always a markup for
profit, so if you join the 1m worth of piece of land with 1m
worth of improvement you just dont value this in its totality at
2m, 1m if taken separately and another 1m taken separately
but if you join them together you just dont value it
mathematically by adding both cost, the reality in the market
is the land joined by the building will now command a price
more than their respective cost, lets the building and the
land now will cost 3m instead of 2m, so the increase in value
is the 1m, joining the land 1m and the improvement 1m, =
3M, so the increase in value is 1M.
Now, how do you apply the formula? If the cost of the
improvement is 1m and the increase of the value of both the
land and improvement which is 1M, are more than the value
of the land which is the separate property of one spouse, the
entire property will form part of the conjugal partnership. So,
we have 2M which the value of the improvement plus the
resulting value of 1M , is more than the value of the piece of
land which is only 1m, so the entire land and the building will
become part of the conjugal partnership.
If the result is the reverse, meaning the cost of improvement
plus the increase is value is not more than because it is equal
or less, the rule is the opposite, the entire building, the
improvement and separate property the land will be the
exclusive property of the owner spouse. Either way whether
the entire property will go to the owner spouse or to the
partnership the other party should be entitle to
reimbursement because they shared in the improvement.
Now, take note, that until and unless actual reimbursement is
made the title over the property remains with the owner, in
other words in a situation where the cost of the improvement
and the increase in value of both the land and the
improvement are more than the value of the exclusive
property the entire property will become part of the conjugal
partnership, so the piece of land will become part of the
conjugal partnership, but Ms. Gonzaga is entitled to
reimbursement, 1M, until and unless ms.gonzaga is
reimbursed actually, she remains the owner, so that before
reimbursement, if the creditors of the conjugal partnership
wants to execute a judgment against the conjugal partnership
that property that piece of land, which remains the exclusive
property of ms.gonzaga for luck or before reimbursement is
made cannot be levied on execution to satisfy the judgement
against the conjugal partnership because as of that time
ownership is still with ms.gonzaga because of nonpayment
reimbursement.

When is reimbursement required to be made? Reimbursement

is only required upon dissolution, the ownership in short will
only transfer to the owner upon dissolution, when
reimbursement is made. Take note of the rule, very
interesting, a question will come out.
Lets go to the rule on ownership, enjoyment, administration,
disposition of properties belonging to the conjugal
partnership, the same as the rule on absolute community of
property. Then the rule on charges upon and obligation are
more or less the same.
If you look at the rule on charges upon obligations of the
absolute community of property, under art.94 there is a rule
on advance reimbursement mechanism, par.9, in case the
spouse who is liable for his personal obligations has no
sufficient property, the creditor may go after the absolute
community for advances. Similar provisions under art.121 and
122, under conjugal partnership of gains, if you look at the
items listed there individually they are essentially the same
except that there is only one provision for this rule under
absolute community which 94, but for conjugal partnership of
gains there are two art.121 and122. The 122 speaks of the
separate, exclusive liabilities of either spouse, this is
supposed to be the par.9 of 94. Meaning 121 enumerates the
conjugal debts, liabilities and obligations; 122 exclusive,
separate liabilities of each spouse under conjugal partnership
of gains. But individually if you look at these items, they are
essentially the same. But there is a salient s substantial
distinction in so far as the rule on advanced reimbursement
mechanism. As I said under par.9 of art.94 if the spouse who
is personal liable in items mention in par.9, the creditor may
go after the absolute community for advances subject to
reimbursement at the time of liquidation, this is also true
under a regime of conjugal partnership of gains, except that
under conjugal partnership of gains, the conjugal partnership
may only be compelled to make the advances if the assets of
the partnership are enough to cover the conjugal liabilities,
take note, while it may be compelled to make advances to
satisfy personal separate, liabilities of either spouse this is
only possible if the conjugal partnership has sufficient
properties to cover its own conjugal liabilities, not if its assets
are not even sufficient to cover its own conjugal liabilities.
Lets say for example, the conjugal obligation is 1m, thats
conjugal liabilities, but the assets of conjugal partnership is
only 900,000, so short by 100,000. So lets say, the husband
has a personal liability, support for his illegitimate children,
100,000, can the partnership be compelled to advance the
100,000 to satisfy the personal liability of the husband? Under
the law it cannot be done, because the assets are not enough
to cover the existing 1m conjugal liabilities, so advances is
subject to the Principle of Exhaustion, the conjugal
liabilities should first be exhausted, and if there is a remaining
asset of the conjugal partnership then that maybe applied to
satisfy the personal liabilities of either spouse. This rule is not
applied under absolute community of property, there is no
requirement that the community obligation shall first be
exhausted before the personal liabilities of either spouse
maybe charge against the absolute community of property.
The difference is obvious, under the absolute community of
property there are more common properties, so theoretically
protected, there are more common properties, than the
separate, but under the conjugal partnership is the reverse,
the parties , there are more separate exclusive properties,
fewer conjugal, so the benefit of exhaustion applies.
For purposes of the advances reimbursement mechanism, or
for purposes of enforcing personal liabilities of either spouse
as against the conjugal partnership under the advances
reimbursement mechanism, it is not necessary to wait until
dissolution, so the creditor need not to wait until dissolution to
see if there are more conjugal assets than the conjugal
liabilities, so long as the obligation is due and demandable the
creditor may enforce it against the conjugal partnership and
the principle of exhaustion shall be applied by determining
the value of the conjugal assets and the conjugal liabilities as

of the time the obligation is enforced. It should be determine

as of the present.
The rule of exhaustion was apply to the case of Efren Pana
Vs. The Heirs of Juanite, this involves the husband and wife
who were charged of murder along with other accused, after
trial the husband was acquitted but the wife was convicted
and adjudged civilly liable to pay the victims, when the
judgement becomes final, the sheriff enforced, executed the
money judgement the civil aspect of the case, and the sheriff
tried to enforce it against the conjugal partnership. In this
case the court applied the rule on charging the conjugal
partnership for the personal liabilities of either spouse. The
liabilities is personal the wife because if arose from the crime,
under 122 personal, under 94 personal, but it was allowed to
be enforce against the conjugal partnership, because the
court said that it appears that there are sufficient and there is
no need to wait for liquidation. So in this case the SC made a
categorical ruling that for purposes of satisfying obligations by
way of advance reimbursement mechanism it is not necessary
to wait until liquidation.
Although for purposes of reimbursement which will be
deducted from the share of the spouse who incurred the
personal obligations, thats how the reimbursement is done,
just deduct it from the share, is always subject to the
conditions that at the end of the day during liquidation there
is still assets to share or to divide.
COMPLETE SEPARATION OF PROPERTY REGIME
So lets go to complete separation of property regime. What
are the instances where this kind of property regime governs
the property relations between the spouses, there are only 3
instances where this kind of regime may govern property
relations.
3 instances
1. In a situation where a marriage is terminated by
reason of death and the surviving spouse fails to
liquidate the conjugal partnership or the absolute
community of property within one year and without
the liquidation the surviving spouse contracts a
subsequent marriage, under art.103 and art. 130 the
property that will govern the subsequent marriage is
that of the mandatory regime of complete separation
of property. Any contrary stipulation is void.
2.

When the parties in the marriage settlement

expressly stipulate that their property regime will be
that of complete separation of property

3.

When there is judicial separation of property. This is a

situation where the marriage remains intact but the
properties of the spouses are divide, under the
regime of complete separation of property.

Lets go to judicial separation of property.

This is a situation where the parties remain married to each
other but their property relation is governed by complete
separation. Normally the property regime is divided or
separated when the marriage is also terminated like nullity,
annulment or even in legal separation the marriage remains
intact but the property relations are divided.
Judicial separation is allowed, this maybe resorted to under
two ways, the so called involuntary judicial separation and
the so called voluntary judicial separation of property.
Whether voluntary or involuntary there is always the
involvement of the court.

Lets go to the first mode, involuntary judicial separation;

this can only be resorted to when there is a legal ground, the
legal grounds are those provided by the family court, there
are I think 6 grounds for this purpose, if any or some or all of
these grounds exist then the aggrieved party may file a
petition in court for involuntary judicial separation of property.
Grounds for involuntary judicial separation
1.

When one of the spouses is imposed with the penalty

of civil interdiction
2. When the other spouse is adjudged to have loss his
parental authority
3. When the other spouse is adjudged to be guilty of
abandoning the other.
Note: in these 3 grounds, the offended spouse may petition
the court for involuntary separation of properties, in these 3
grounds it is required that there must be a final judgement.
4.

5.
6.

When the other spouse is guilty of failing to comply

with marital obligations or abandonment of the
family. (that maybe a ground, there is no need a final
judgement for this purpose)
When the other spouse is guilty of abuse in the
management of the conjugal or the absolute
community of property.
When there is separation de facto between the
spouses for a period of atleast 1 year and
reconciliation is not probable.

So there are 6 grounds, if any, some or all of them are present

involuntary separation is a remedy.
On the other hand, the Voluntary needs no legal ground at
all. The only requirement is if the party so decide to resort to
judicial separation, so this can be done by both of them filling
a petition for voluntary separation jointly.
Whether the properties of the parties are declared judicial
separated through voluntary or involuntary means, the parties
can always agree later on to revive their previous property
regime.
When is this allowed?
If the judicial separation is effected through involuntary
means, (because of the 6 grounds) revival is possible if the
ground therefore subsequently disappeared or cease to exist.
So if the parental authority which was declared lost which was
restored, revival of the previous property regime may be
made, by filling a petition for revival.
In a situation where the dissolution is by voluntary means, the
previous property regime may be revived by both of them
filling jointly a motion to revive
Take note : however the remedy of voluntary judicial
separation and revival by joint petition can only be availed of
once by the parties.
But, involuntary judicial separation can be availed of as many
times as there are grounds that could justify the petition; it
doesnt matter how many times.