Persons, Family Relations, Family Code articles 88-104 reference

1. CHAPTER 3
SYSTEM OF ABSOLUTE COMMUNITY

2. REGIME OF ABSOLUTE COMMUNITY
A property regime is also known as an absolute
community.
Absolute Community- spouses are considered co-owners
of all property brought into and acquired
during marriage.
With this regime the property relations of the
spouses are governed through the following
instances:

3. 1. When it is agreed upon in the marriage
settlement
2. When the spouses did not execute a marriage
settlement, and;
3. When the regime agreed upon in the marriage
settlement is VOID

4. RULES GOVERNING ABSOLUTE COMMUNITY
1. If the regime of absolute community is provided
in the marriage settlement- provisions of
marriage settlement shall govern the spouses’
property relations
(as long as it does not violate mandatory
provisions and not contrary to morals and
public policy)

5. 2. If regime of absolute community applies to the
spouses by default pursuant to the provisions of
art. 75- provisions of Family Code on absolute
community shall govern
Applicability of provisions (C. Code) on co-ownership
on the regime of absolute community-recognizes
the regime as a special kind of co-ownership

6. Commencement of Absolute Community
Regime is agreed upon in the marriage settlement or
applies by default- it shall commence at the precise
moment of marriage celebration;
any agreement between spouses (express or implied)
that the regime will commence at any other time is void
REASON: SPOUSES ARE NOT ALLOWED TO MODIFY
THEIR PROPERTY REGIME DURING MARRIAGE TO
CHANGE IT TO ABSOLUTE COMMUNITY, IF IT IS NOT
THEIR REGIME AT THE START OF THE MARRIAGE.
ART. 88 EMPHASIZES THAT SPOUSES WHO ARE
LEGALLY SEPARATED MAY NOT ADOPT ABSOLUTE
COMMUNITY

7. Community Property- properties included in the
regime of absolute community which are co-owned
by the spouses;
-all properties owned by the spouses at the
time of celebration of marriage or acquired during
the marriage with the exception of those included
in art. 92 and those excluded by the spouses in the
marriage settlement

8. Future spouses executing marriage settlement
before marriage and adopting an absolute
community as property regime, may agree to
exclude from the community property whatever
properties they may have at the time of the
marriage celebration and include those that they
may acquire during the marriage

9. What about the “Fruits and Income” of these properties, will
they also be excluded from the community property?
It will depend on the agreement of the spouses in the
marriage settlement, if they agree to exclude their
agreement shall prevail pursuant to art.74(1)
- In the absence of agreement to exclude, these fruits and
incomes will be considered part of the community property,
thus falling under the general rule that all property owned
by the spouses at the time of celebration of the marriage or
acquired thereafter shall be part of the Community Property
but if these fruits and incomes are generated during
marriage, it is presumed that they belong to the Community
Property

10. Presumption in Favor of Community Property
Acquired before or during the marriage, the
presumption in favor of the community must relate
to all properties of the spouses and not only the
properties acquired during the marriage
Conjugal Partnership: party must first prove that
the property was acquired during the marriage
Absolute Community: spouses’ properties are in
included in the community property as a rule,
whether the property is acquired before or after the
marriage

11. Separate or Exclusive Properties of the Spouses
Separate or Exclusive Properties- properties which
are not included in the absolute community, over
which the spouse-owner retain ownership,
possession, administration, administration and
enjoyment

12. Properties classified as separate or exclusive
1. Property acquired before the marriage by either
spouse which has been excluded from the
absolute community in the marriage settlement
2. Property acquired during the marriage by
gratuitous title by either spouse and the fruits
as well as the income thereof, if any, unless it is
expressly provided by the donor, testator or
grantor that they shall form part of the
community property

13. 3. Property for personal and exclusive use of either
spouse; jewelry shall form part of the community
property
4. Property acquired before the marriage by either
spouse who has legitimate descendants by a
former marriage, and the fruits as well as the
income, if any, of such property

14. Property acquired during marriage by Gratuitous
Title
All properties acquired by the spouses during marriage
belong to the community property except:
1. Those acquired by gratuitous title by either spouse
2. Those personal and exclusive use of either spouse
REQUISITES FOR GRATUITIOUS TITLE TO BE
CONSIDERED EXCLUSIVE OR SEPARATE
1. Must be acquired during marriage
2. Acquired by either spouse
3. Donor, testator, or grantor does not expressly provide
that shall form part of the community property

15. If property was gratuitously acquired before the
marriage or the donor, testator, or grantor
expressly provide that it shall form part of the
community property, the property shall belong to
the community
Family Code is silent if the property is acquired
through gratuitous title by both spouses jointly

16. Property acquired prior to Marriage
All properties acquired prior to marriage are
included in the community property except:
1. Those excluded in the marriage settlement
2. Personal and exclusive use
3. Acquired by either spouse who has legitimate
descendants by a former marriage
Family Code excludes from the community all his
or her property acquired prior to the subsequent
marriage (applies to number 3)

17. May the future spouses in the subsequent
marriage agree to include these properties as part
of absolute community in their marriage
settlement?
Answer: No, while the future spouses are free to
fix their property relations in their marriage
settlement, the law provides that they can only do
so within the limits provided by the Family Code

18. Sale or Exchange of Separate Properties
If a separate property of either spouse is
sold/exchanged for another property, will the
proceeds of the sale or property acquired remain
separate or be now part of the community
property?
Answer: if property is excluded from the
community property by reason of the marriage
settlement, alienation of such property converts
the proceeds of the property acquired in its place
to community property following the rule in art. 91
and presumption in art. 93

19. If a property is excluded from the community by
reason of mandatory provisions of law, it is
submitted that the policy of the law to stamp these
properties with separate character should not be
easily defeated by the simple expedient of
converting said properties into some new form

20. Support
- Community Property shall be liable for the
support of the spouses, their common children and
legitimate children of either spouse in the previous
marriage
- An adopted child is considered legitimate
son/daughter of the adopter thus entitled to all
rights and obligations provided by law to legitimate
children

21. Illegitimate children of either spouse shall come
from the exclusive property of the illegitimate
parent-spouse
Absence/insufficiency of the exclusive property of
the illegitimate parent- spouse will mean payment
which may be taken from the community property
and the same shall be considered as advances to
be deducted from the share of such parent

22. Debts and Obligations Contracted during
Marriage
Absolute Community shall be liable for:
1. Those contracted by the designated
administrator-spouse for the benefit of the
community
2. Those contracted by both spouses
3. those contracted by one spouse with the
consent of the other
4. Those contracted by either spouse without the
consent of the other to the extent that the family
may have been benefited

23. If the debt is contracted during marriage by both
spouses or by either spouse with the consent of
the other, the law presumes that such debt has
redounded to the benefit of the family
If the debt is contracted by the designated
administrator-spouse or by one spouse without the
consent of the other, absolute community shall be
liable only if it can be proven that the debt
benefited the community or the family

24. Ante- Nuptial Debts
- Are debts contracted by either spouse prior to
the marriage
- Absolute community shall be liable only if it can
be proven that such debt has redounded to the
benefit of the family
- If such debt did not redound to the benefit of the
family, it is the exclusive property of the debtor-spouse
which must pay such debt

25. Taxes and Expenses Incurred on the property
• Taxes
• Liens
• Charges and expenses (minor and major
repairs) upon the community property
All shall be the liability of the absolute community

26. Expenses for Education and Self-Improvement
- enable either spouse or their common legitimate
children
to complete a professional or vocational course or
expenses incurred
for other activities aimed at self-improvement are
chargeable to
the absolute community

27. Expenses of Litigation Between Spouses
- chargeable to the absolute community unless the
suit is found to be groundless
-spouses shall be solidarily liable for the unpaid
balance with their separate properties if the
community property is insufficient to cover the
foregoing liabilities

28. Obligations Chargeable to Exclusive Property
(a) Support of illegitimate children of either spouse;
(b) Debts contracted by the designated administrator-spouse
during the marriage which did not benefit the community;
(c) Debts contracted during the marriage by either spouse
without the consent of the other which did not redound to the
benefit of the family;
(d) Ante nuptial debt of either spouse which did not redound to
the benefit of the family;
(e) Taxes and expenses incurred during the marriage for the
preservation of a separate property of either spouse which is
not being used by the family;

29. (d) Ante nuptial debt of either spouse which did not
redound to the benefit of the family;
(e) Taxes and expenses incurred during the
marriage for the preservation of a separate
property of either spouse which is not being used
by the family;

30. (f) Civil liability of either spouse arising from crime
or quasi-delict;
(g) Expenses of litigation between spouses, if the
suit is found to be groundless;
(h) Losses during the marriage in any game of
chance, betting, sweepstakes, or any other kind of
gambling, whether permitted or prohibited by law,
shall be borne by the loser and shall not be
charged to the community but any winnings
therefrom shall form part of the community
property.

31. Administration of Community Property
- administration and enjoyment of the community
property belong to both spouses
-in case of disagreement, the husband’s decision
shall prevail, which must be availed of within five
years from the date of the contract implementing
such decision

32. In the following situations, one of the spouses may
assume sole powers of administration:
1. one spouse is incapacitated or otherwise
unable to participate in the administration of the
common properties
2. during the pendency of a legal separation case
3. if a spouse without just cause abandons the
other or fails to comply with his or her obligations
to the family

33. Disposition of Community Property
The rule of absolute regime applies even if the
disposition is to be made by the administrator-spouse
because the powers of sole administration
do not include disposition or encumbrance without
authority of the court or the written consent of the
other spouse

34. Disposition of Spouse’s Interest in the
Community Property
- neither spouse can dispose of their respective
interest in the community property by way of
disposition inter vivos, hence any disposition of
the spouse’s respective shares or interest shall
be void since such right to one-half of the
community assets does not vest until the
liquidation of the absolute community
- Nemo dat qui non habet- No one can give what
he has not

35. Causes of Termination of Absolute Community
1. upon the death of either spouse
2. When there is a decree of legal separation
3. when the marriage is annulled
4. when the marriage is judicially declared void
under Article 40
5. in case of judicial separation of property during
the marriage under Articles 134 to 138

36. Effects of Separation De Facto
Separation De Facto- situation where the spouses
simply separate without the benefit of a decree of
legal separation
Consequences:
1. the spouses retained their right of consortium
because in the eyes of the law, they are not
entitled to live separately from each other
2. 2. the separation de facto does not likewise
affect the regimes of absolute community or
conjugal partnership of gains

37. 3. the spouses continue to be the legal heir of
each other in intestate succession
4. there is neither a guilty spouse nor an innocent
spouse
In case of separation de facto:
- judicial authorization may be obtained in a
summary proceeding when the consent of one
spouse to any transaction of the other is required
by law

38. In Case of Abandonment
Abandonment- act of one spouse voluntarily
separating from the other, with the intention of not
returning to live together as husband and wife
- a spouse is deemed to have abandoned the other
when he or she has left the conjugal dwelling
without intention of returning
- spouse who has left the conjugal dwelling for a
period of three months or has failed within the same
period to give any information as to his or her
whereabouts shall be prima facie presumed to have no
intention of returning to the conjugal dwelling

39. if the separation de facto is attended by
abandonment, the following effects are likewise
produced:
1. the spouse who leaves the conjugal home or
refuses to live therein, without just cause, shall
not have the right to be supported
2. the aggrieved spouse may petition the court for
receivership
3. the aggrieved spouse may petition for legal
separation if the abandonment lasts for more
than one year

40. Procedure in the Liquidation of Absolute
Community
1. An inventory shall be prepared, listing
separately all the properties of the absolute
community and the exclusive properties of each
spouse
2. The debts and obligations of the absolute
community shall be paid out of its assets. In
case of insufficiency of said assets, the
spouses shall be solidarily liable for the unpaid
balance with their separate properties in
accordance with the provisions of the second
paragraph of Article 94

41. 3. Whatever remains of the exclusive properties of
the spouses shall thereafter be delivered to each
of them.
4. The net remainder of the properties of the
absolute community shall constitute its net assets,
which shall be divided equally between husband
and wife, unless a different proportion or division
was agreed upon in the marriage settlements, or
unless there has been a voluntary waiver of such
share provided in this Code.

42. Net assets is what remains of the community
property after payment of all the charges and
obligations for which the absolute community is
liable while net profits represents the increase in
the market value of the community property at the
time of the celebration of the marriage and the
market value at the time of its dissolution but
minus the charges and obligations for which the
community is liable

43. 5. The presumptive legitimes of the common
children shall be delivered upon partition, in
accordance with Article 51
Legitime is that part of the testator’s property
which he cannot dispose of because the law has
reserved it for certain heirs who are, therefore,
called compulsory heirs

44. Common children are regarded as compulsory
heirs of their parents, whether they are legitimate
or illegitimate.
6. Unless otherwise agreed upon by the parties, in
the partition of the properties, the conjugal dwelling
and the lot on which it is situated shall be
adjudicated to the spouse with whom the majority
of the common children choose to remain.

45. Mandatory Liquidation of the Absolute
Community
Liquidation- positive act on the part of the spouses
or of the surviving spouse in case the absolute
community is terminated by reason of death
- if the marriage is terminated by reason of the
death of either spouse, the liquidation of the
absolute community is mandatory.
- If upon the lapse of one year from the death of
either spouse, no liquidation is made, any
disposition or encumbrance involving the
community property of the terminated marriage
is declared by law to be void

46. Effect Upon Disposition
or Encumbrance of Community
Property
if no liquidation of the absolute community is made
within one year from the death of the deceased
spouse, any disposition or encumbrance involving
the community property of the terminated marriage
shall be void

47. Mandatory Regime of Complete Separation
If there is no liquidation of the absolute community
within one year from the death of the deceased
spouse and the surviving spouse contracts a
subsequent marriage:
- a mandatory regime of complete separation of
property shall govern the property relations of the
subsequent marriage