Conjugal Property - Lecture notes 1 PDF

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Summary

Conjugal property is property that belongs to both spouses. When you marry, part or all of your property becomes conjugal property. Part or all of your spouse’s property also becomes conjugal property. Conjugal property can be formed in the following ways: Conjugal partnership of gains
Absolut...

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Conjugal PropertyDissolution of Marriage Conjugal property is property that belongs to both spouses.

The family home is often part of conjugal property.

When you marry, part or all of your property becomes conjugal property. Part or all of your spouse’s property also becomes conjugal property. Conjugal property can be formed in the following ways: • • • •

Conjugal partnership of gains Absolute Community Legal Separation Other

These different ways of forming conjugal property come into play in different ways. If a prenuptial agreement was formed, then one of these property regimes can be picked. If not, then a default property regime comes into play based on the year of marriage. Conjugal property has several effects.

It affects the disposal or encumbrance of property as both spouses must now agree. It is also a concern between separating spouses. As you can see, conjugal property is a topic of intense continuing interest.

The default property regime is absolute community of property but a preuptial agreement allows other conjugal property arrangements.

Contents[hide] • • • • • • •

What property regime applies to your marriage? What is Conjugal Partnership of Gains? What is Absolute Community of Property? What is Complete Separation of Properties? How do you avoid conjugal property? Is your inheritance part of conjugal property? What is the right of an illegitimate child to conjugal property?

• What happens to the conjugal property after the death of a spouse?

What property regime applies to your marriage? Pre-nuptial safeguard your property but must be entered into before marriage.

If you have executed a valid agreement (or a pre-nuptial agreement) regarding your property before you married, then you are bound by this agreement. But what if you did not execute a pre-nuptial agreement before your marriage? In that case, you are governed by the default property regime in effect the year you married. Prior to August 3, 1988 – Conjugal Partnership of Gains On and After August 3, 1988 – Absolute Community of Property So, if you have no prenuptial agreement the date you were married determines your conjugal property regime.

What is Conjugal Partnership of Gains? In a Conjugal partnership of gains, the conjugal property is the income or property generated by both spouses during the marriage. Each partner’s separate property remains theirs. It was the default marriage regime before Aug 3, 1988 and comes into effect when the marriage was celebrated. It can be waived before marriage through a marriage settlement.

In Conjugal Partnership of Gains, only properties and income gained during the marriage form the conjugal property.

How does conjugal partnership of gains differ from absolute community of property? In absolute community, properties separately held before the marriage become part of the conjugal property. In conjugal partnership of gains, only income and properties accumulated during the marriage are considered conjugal property. Conjugal partnership of gains can be rather complicated when you actually sit down to calculate it.

Is property bought on installment also part of the marriage? It depends.

For instance, what happens when a property is bought on installment before the marriage with both exclusive and joint funds? In this situation, it is part of conjugal property if ownership vests before the marriage. As you can see, things can quickly become complicated. These and several other rules from the Family Code [Art 116 to Art 120] dictate what conjugal property is in a marriage governed by conjugal partnership of gains.

Are there properties that are excluded from the Conjugal Partnership of Gains? Yes. Excluded from the conjugal partnership of gains are exclusive properties prior to marriage, properties obtained by gratuitous title, or properties that are bought/redeemed/bartered with the exclusive money or property of the wife or husband. So, property owned by one spouse before marriage remain the property of that spouse even after marriage.

Yes, some properties are excluded from the conjugal property in conjugal partnership of gains.

In addition, property that has been obtained by the exclusive money of one spouse is the property of that spouse. Lastly, property donated or inherited by a spouse during the marriage remains that spouse’s property. Everything that is exclusively acquired is separate from the conjugal partnership of gains.

What happens to the conjugal property of Conjugal Partnership of Gains when a marriage ends? What happens to property when a marriage is dissolved?

If the marriage ended through annulment, the net proceeds of the marriage are divided jointly. If ended through legal separation however, the net proceeds of the marriage are awarded to the innocent spouse. These are very different outcomes. In addition, computing this type of separation can easily become quite confusing. It often takes effort to assess what these net proceeds are and become complex when more assets are involved. Read more in: How is the marriage property divided in Legal Separation? This explains how properties under conjugal partnership of gains are separated in legal separation cases.

What is Absolute Community of Property? Absolute community of property means that all property owned by either spouse becomes conjugal property when the marriage is celebrated. Absolute community of property is the default marriage regime for marriages on or after August 3, 1988.

What does this mean, exactly? Say you bought a condo prior to your marriage. Meanwhile, your partner owned a car before the wedding. After your marriage, your partner has a right to half of the condo while you have the right to half the car.

Absolute community of property means that all properties that each spouse owned before the marriage becomes conjugal property.

This happens automatically when the marriage is celebrated. While you can execute a prenuptial agreement before the marriage, you cannot do anything about it afterwards – the law specifically forbids it. This is problematic, especially when a marriage starts to fail.

Are there properties that are excluded from the conjugal property of Absolute Community? Yes, properties acquired by gratuitous title, personal properties and properties from a former marriage with children are excluded from conjugal property.

Yes, some assets such as jewelry are excluded from the conjugal property in absolute community.

• Properties acquired during the marriage by gratuitous title. Gratuitous means “without pay”. In this case, these are properties inherited or donated during the marriage. • Property for the personal use of each spouse such as clothing, excluding jewelry. • Property acquired before that marriage by either spouse who has children by a former marriage. This is to protect the inheritance of the children of the previous marriage. These are a very narrow classes of property. The vast majority of property in an absolute community marriage will usually fall under conjugal property.

What happens to property under Absolute Community when a marriage ends? Property is divided differently when a marriage ends under Absolute Community versus under Conjugal Partnerhip of gains..

This is the question I get most often. When a marriage is annulled or legal separation undertaken, what happens to the property of the spouses? If the legal proceeding is annulment, then the following would happen: • Net conjugal property is divided between the spouses • The family home goes to the spouse with whom the children live • Exclusive properties are returned to the spouses. If the marriage ends through legal separation, then the innocent spouse is awarded all the conjugal properties. The court determines who the innocent spouse is – so you’d have to examine your case to determine who the innocent party would be. Read more in: How is the marriage property divided in Legal Separation? This explains how properties under absolute community are separated in legal separation cases.

What is Complete Separation of Properties? Properties of husband and wife are completely separate from each other

Complete Separation of properties is exactly as stated. It means that there is no conjugal property. Instead, whatever is exclusively owned is retained by the ownerspouse before and during the marriage.

This pertains to any income or livelihood as well as to property.

How do you avoid conjugal property? You can choose your conjugal property regime – but only before you are married. Before marriage, Philippine law allows the future spouses to determine the property regime they want to govern their marriage. They may decide on any one of the 3 regimes available: 1. Absolute community 2. Conjugal partnership of gains 3. Complete separation of property

You have the option to decide what property regime to use – but only before marriage and through a prenup!

Additionally, the law provides a vague 4 option of “any other regime” — but only so long as the regime opted for is a valid one. th

A valid regime is a regime that doesn’t break Philippine laws, which means that it’s wise to get expert advice to draft it. A side note: These property regimes may not apply in certain instances – for instance, when there are 2 foreign spouses or when a contract is executed regarding property outside the Philippines. [Family Code, Art 80] To choose your property regime, you must execute what’s called a marriage settlement or a pre-nuptial agreement. The prenuptial agreement or “pre-nup” is a valid agreement executed by the future spouses before marriage. It is signed by both parties and notarized. It can then be enforced against 3 parties in the local civil registry or in the registries of the properties concerned. rd

Things become more complicated when there is a marriage between a foreigner and a Filipino.

Things are straightforward when the marriage is between 2 Filipinos and concerns only Philippine property – but what happens when there is a foreign element? Then things get a little tricky. In cases where a foreigner is married to a Filipino or a there is foreign property, a pre-nup has to decide how to address inevitable conflicts in foreign law. It may be possible to exclude these. However, you should really consult with legal counsel for these cases. In addition, you might want to consult counsel when you want to create a special pre-nup due to particular family situations. This might be when you have an interest in a family corporation and are executing the pre-nup to protect the company. Or, it may occur for properties you want to hold personally for sentimental or other reasons.

Is your inheritance part of conjugal property? Conjugal property may or may not include your inheritance

In absolute community, conjugal partnership of gains and complete separation of property, properties inherited during the marriage are excluded from conjugal property. However, inherited property forms part of conjugal property if you inherited prior to marriage and the estate was already settled. There are some ways to protect your property in event of a separation. These are admittedly a bit difficult so its really best to try to avoid the issue altogether by simply having a prenuptial agreement in place.

What is the right of an illegitimate child to conjugal property? This depends on the facts. An illegitimate child is entitled to inherit from his parent. His parent’s portion will depend on the type of conjugal property regime in place.

An illegitimate child is entitled to a half of the share of a legitimate child

If absolute community is the property regime, half of the total property is the parent’s portion. Some exceptions may apply such as when a pre-nup is in place, when there is exclusive property, or when other provisions have been made. If conjugal partnership of gains is involved, then the parent’s share is half of the total income and assets generated during the marriage. This can be complicated to compute depending on how many assets there are and how long the marriage was. In complete separation of property, there is no conjugal property. Each spouse owns his own share.

When the deceased is married, the legal spouse will have a share of the property.

From his parent’s share, an illegitimate child usually receives ½ the share of a legitimate child.

What happens to the conjugal property after the death of a spouse? When a spouse passes away, the conjugal property of absolute community ends and the property is shared among the heirs. Philippine law determines who the heirs are and how much they inherit. Even wills are subject to these laws, and must provide for the legal heirs or risk being void. Wills only are allowed to determine the inheritor for the so-called “free-portion” However, inheritance is not automatic. Estate taxes and other administrative items have to be accomplished for land to be retitled or shares transferred. Read more in: How to transfer land to heirs in the Philippines which discusses this 7-step process in detail.

172 Comments 1. 2. Wilfredo on June 1, 2019 at 12:57 am 3. Is the property acquiared in another spouse in which I am living with is a conjugal

property? Is the legal wife has the right to confiscate or take legal action in court all the properties I have? I have 4 kids to my common law wife and 17 years seperated to my legal wife. Thanks and hoping for the answers.

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Lawyers in the Philippines on June 2, 2019 at 3:54 pm

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Sent you an email.

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Gillane Keith Blando on November 12, 2021 at 4:33 pm

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Good day, I just want to ask,

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My lolo inherited a portion of lot, after their marriage, is it a conjugal property or not?

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FCB Law on December 14, 2021 at 6:45 pm

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Probably not.

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Helen on September 30, 2019 at 6:03 am

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I have been separated from my husband of 27 years in a the Phils. I am living in the US and have married another man. I want to know if I still can claim right to the house we have in the Phil

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Atty. Francesco Britancio on September 30, 2019 at 8:52 am

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It depends on the situation.

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Carlito Amos on June 27, 2021 at 1:50 pm

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my sister died 4yrs ago and they don’t have child,they have their own house,the said house was been rented from my brother in law,do my parents got shared from rent payments?

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FCB Law on June 28, 2021 at 1:37 pm

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If the wife passed away without children while her parents and siblings are still living, the widower would be entitled to half his wife’s estate and her parents to the other half.

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The wife’s estate would have to be settled to resolve this.

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Mary on October 23, 2020 at 10:02 pm

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Is the property acquired in the year 1969, and the marriage happened in 1958 is conjugal property?

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The property is declared in the name of the husband and both spouses was already pass away, and they have no children, where did the property go? Who’s heirs can claim the property the husband or the wife?

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Atty. Francesco Britanico on October 26, 2020 at 10:44 am

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Absent a prenuptial agreement, it does not seem to be conjugal property.

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As to who inherits, it partly depends on who passed away first and who their respective heirs are, such as their parents, siblings, nephews and nieces.

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Shane on December 13, 2020 at 1:26 am

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What if both husband and wife died along with their children?

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lawyerphilippinesadmin on February 1, 2021 at 10:08 am

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Do you mean to ask about who would inherit in this case? Take a look at the post of compulsory heirs as this would help you.

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April maye on September 25, 2021 at 6:56 am

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I’m currently divorcing from a US citizen husband and acquired a property in the Philippines during marriage. He put in 65% and I put in 35% money in the house but I did all the work in finding the property, relocation of our things, managed and maintained the house, etc. what is husband entitled to being a foreign citizen who is not allowed to own a property in the Philippines? He also left for the US and left to me the responsibility of managing the caretakers in maintaining the house

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FCB Law on September 26, 2021 at 3:45 pm

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Except under certain exceptions which this case does not appear to fall, a foreign citizen cannot own land in the Philippines. We cannot speak to your specific situation without more information.

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Cels B. Banglos Jr. on June 5, 2021 at 11:59 am

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Who will be the successor of the real properties if the wife dies and they have no child..Does the brother or sisters of the late wife can get a portion of the proerties?

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Atty. Francesco Britanico on June 5, 2021 at 3:10 pm

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They can. This provision of the Civil Code may apply:

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Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half. (953, 837a)

5. 6. Zes on June 12, 2019 at 10:04 pm 7. Hi,

What if my husband has one ilegitimate child and one legitimate child with me and I acquired a property before we got married. Who will inherit my property? Is it possible to put only my name to the deed of sale and title since i am the only buyer. 8. REPLY o o

Lawyers in the Philippines on June 13, 2019 at 4:20 pm

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Hi Zes:

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Are you a Filipino married to a Filipino?

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Where is the property?

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Did you have a pre-nuptial agreement?

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These factors – among others – determine who inherits and what law is applied.

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There is not enough information to really provide an answer but — In general, property becomes conjugal for Filipino couples. This means that your husband has a right to your property and his children after him after he passes away.

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Janila on June 4, 2021 at 9:04 am

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My uncle wife is dead and they have no child? My uncle wants to sell all of their properties of his deceased wife. does his wife family can get the part of the property?

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Atty. Francesco Britanico on June 5, 2021 at 9:55 am

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We do not have enough information to say, but her siblings or their children may also be her heirs if she left no last will and testament.

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Ian Hart on November 16, 2021 at 4:19 am

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Hi, Me and my wife are both Filipino citizen, I currently staying in the US and she is in Australia. We have a conjugal property in the Philippines that I alone are paying but using her bank since she was in the Philippines when I decided to buy the property. Since we are no longer together, we decided to settle the pr...