CONJUGAL PROPERTY VERSUS ABSOLUTE COMMUNITY OF PROPERTY AND THE RELATION OF MARRIAGE TO REAL PROPERTIES.
Here are some basic rules regarding the effect of marriage to property relationship…
- In case there is a pre-nuptial agreement that separates the properties of spouses, the terms and conditions within that pre-nuptial agreement shall apply.
- Any property donated or inherited or given via gratuitous act to either spouse within their marriage, the receiving spouse shall exclusively own that said property.
- As a general rule, spouses cannot donate, sell, mortgage, lease, or exchange properties to each other.
- If the spouses’ properties are separated by a pre-nuptial agreement, either spouse cannot donate more than one-fifth (1/5) of his or her property to the other spouse.
- Local customs and traditions, and/or religious beliefs that govern the effects of marriage to property relations may apply in special cases. Example: Indigenous Tribal marriage or Muslim marriage.
We often hear this phrase when pertaining to a property owned by a married couple as “That’s their CONJUGAL PROPERTY.”
But what is CONJUGAL PROPERTY? IS IT STILL APPLICABLE TODAY?
The law on CONJUGAL PARTNERSHIP OF GAINS of Properties in simple terms shall be like this…
- Any property acquired before the husband got married shall be exclusively his.
- Any property acquired before the wife got married shall be exclusively hers.
- When the man and woman get married their exclusive properties shall be joined-together as part of one estate within the CONJUGAL PROPERTY and the “FRUITS” of those properties shall be shared between the husband and wife for the duration of their marriage.
- Any property acquired during their marriage shall be considered part of the CONJUGAL PROPERTY and shall be equally owned by the husband and wife.
- Should the the husband and wife file for LEGAL SEPARATION, DIVORCE OR ANNULMENT, the exclusive property of the husband which he acquired before the marriage and all its’ fruits, shall be taken out of the CONJUGAL PROPERTY and will be again solely owned by him; and likewise the exclusive property of the wife and all it’s fruits, which she acquired before the marriage shall again be solely owned by her.
- Also, in case of LEGAL SEPARATION, DIVORCE OR ANNULMENT, and the spouses filed for SEPARATION OF PROPERTIES in court, the properties acquired by both or any of the spouses during their marriage shall be considered part of their CONJUGAL PROPERTY and shall be split in half between the husband and the wife.
In this this scenario, should there be no Judicial Separation of Properties, when the married couple get estranged, either of the spouses can sell, lease, mortgage, exchange or joint-venture their exclusive properties acquired before their marriage, even without the consent of the other spouse. If the property was acquired within the marriage, notarized written consent from both spouses is still needed to sell, mortgage, lease, exchange, donate or joint-venture the Conjugal Property.
This was the prevailing law BEFORE THE 1987 FAMILY CODE… Therefore, it is important to note; When the property was acquired and when was the couple got married?
EXECUTIVE ORDER 209, or THE FAMILY CODE OF THE PHILIPINES was enacted as a law by then President Corazon Aquino in July 6, 1987.
Hence, Filipinos who were married after that date are now covered by this law.
The Family Code of the Philippines states that, in the absence of a “Marriage Settlement” or what is commonly known as “Pre-nuptial agreement” that separates the properties of the spouses married after the enactment of the Family Code, their properties shall no longer be governed by the law on CONJUGAL PROPERTY but by the regime of ABSOLUTE COMMUNITY OF PROPERTY.
Absolute Community of Property in simple terms would be like this…
- All properties acquired by the spouses before their marriage, and all properties acquired during their marriage shall be considered part of one whole estate of the ABSOLUTE COMMUNITY OF PROPERTY owned by both spouses.
- All properties donated, inherited and/or properties given gratuitously to either of the spouse before their marriage shall also be considered as part of the ABSOLUTE COMMUNITY OF PROPERTY once they get married, and shall be owned by both spouses.
- IN CASE OF LEGAL SEPARATION, DIVORCE OR ANNULMENT, the regime of ABSOLUTE COMMUNITY OF PROPERTY shall not be affected and will remain owned by both spouses, unless the spouses FILED FOR JUDICIAL SEPARATION OF PROPERTIES
- In case the spouses filed Judicial Separation of Properties, the properties within the Absolute Community of Properties shall be split in half between the husband and the wife.
In this scenario all properties acquired before and during the marriage of either and both spouses shall be considered as part of one whole estate of the Absolute Community of Property. Therefore, notarized written consent from both spouses shall be needed in order to sell, mortgage, lease, exchange, donate and joint-venture any real property that belongs to the ABSOLUTE COMMUNITY OF PROPERTY.
Unless there is a Judicial Separation of Property, even if the spouses get estranged, separated, divorced or their marriage annulled, it will not affect the regime of absolute community of property, hence notarized written consent from both spouses shall be needed to sell, mortgage, lease, exchange, donate and/or joint-venture the said property.
What if the Filipino was married to foreigner?
Read more details about it here —> CAN FOREIGNERS OWN PHILIPPINE PROPERTIES?
I encountered so many cases wherein certain properties could not be sold, mortgaged, exchanged, donated or joint-ventured simply because the spouses got estranged, and/or the other spouse is no where to be found, or the spouses would not want to speak to each other anymore.
We often hear lovers always say that they would give their life and their all to their loved one. But in many cases, after the separation, divorce or annulment, spouses wouldn’t want to give half of what they own to their estranged partner!
My advice to engaged couples about to be married are these:
1. Put aside P200,000.00 in a secured savings bank in case the couple separated, they’ll have money to spend for their annulment proceedings.
2. Both parties should agree to a marriage settlement, that clearly defines “who-owns-what”, to avoid more trouble in case they be separated, divorced or annulled in the future.
3. Make sure to prepare a notarized will before any of the spouse dies so that the heirs would know exactly what to do with the inheritance left by the deceased partner.
What if one or both spouses died? —> WHO INHERITS WHAT? – info on inheritance laws and inheritance taxes in the Philippines.