Property Regimes

Property Regimes FAQs

1. What is a property regime?
Property regime is those set of rules agreed upon by the parties to a marriage which governs their
property relations during the course of their married life. (Article 75 Family Code of the Philippines)
2. What are the different property regimes under Philippine law?
Philippine law recognizes three property regimes, to wit:
1. Regime of Absolute Community of Property;
2. Regime of Conjugal Partnership of Gains; and
3. Regime of Complete Separation of Properties.
3. What are the differences between the three property regimes?
Absolute Community of Property
Parties deemed as co-owners of properties they both own at the time of the
celebration of marriage and those acquired thereafter. (Article 90 Family
Code of the Philippines

Administration and enjoyment of the community property shall belong to

both spouses jointly. (Article 96 Family Code of the Philippines)

Conjugal
Partnership of
Gains

Complete
Separation of
Properties

Parties retain
ownership over
their respective
properties. The
parties place in a
common fund the
proceeds, products,
fruits and income
from their separate
properties and
those acquired by
either or both
spouses through
their efforts or by
chance. Upon
dissolution of the
marriage or of the
partnership, the net
gains or benefits
obtained by either
or both spouses
shall be divided
equally between
them, unless
otherwise agreed in
the marriage
settlements.(Article
106 Family Code
of the Philippines)

Each spouse shall

own, dispose of,
possess, administer
and enjoy his or
her own separate
estate, without
need of the consent
of the other. To
each spouse shall
belong all earnings
from his or her
profession,
business or
industry and all
fruits, natural,
industrial or civil,
due or received
during the marriage
from his or her
separate
property. (Article
145 Family Code
of the Philippines)

The administration
and enjoyment of
the conjugal
partnership shall

Parties are free to

manage their
respective
properties without

It may refer to
present or future
property or both. It
may be total or
partial. In the latter
case, the property
not agreed upon as
separate shall
pertain to the
absolute
community.(Article
144 Family Code
of the Philippines)

Neither spouse may donate any community property without the consent of
the other.(Article 98 Family Code of the Philippines)

belong to both
spouses
jointly.(Article 124
Family Code of
the Philippines)

interference of the
other.

Neither spouse
may donate any
conjugal
partnership
property without
the consent of the
other.(Article 125
Family Code of
the Philippines)

Parties are free to

donate without
interference of the
other.

4.
If
my
boy
frie
nd
and
I
got
mar
ried
wit

hout making any pre-nuptial agreement, what property regime governs?

In the absence of a marriage settlement, the system of absolute community of property shall
govern. (Article 75 Family Code of the Philippines)
5. When does the property regimes commence?
The property regimes shall commence at the precise moment that the marriage is celebrated.
6. My husband and I did not execute any pre-nuptial agreement before marriage. Can we
change our property relations during our marriage?
No, in order that any modification in the marriage settlements may be valid, it must be made before
the celebration of the marriage. (Article 76 Family Code of the Philippines)
However, parties may jointly file a verified petition with the court for the voluntary dissolution of the
absolute community or the conjugal partnership of gains, and for the separation of their common
properties during their marriage. (Article 136 Family Code of the Philippines)
7. My husband and I executed a pre-nuptial agreement before our marriage but we never
registered the same with any government agency. Is it valid?
As between the two of you, yes it is valid as it is in the nature of a contract. Obligations arising from
contracts have the force of law between the contracting parties and should be complied with in good
faith. (Article 1159 Civil Code of the Philippines)
However, the pre-nuptial agreement shall not prejudice third persons unless they are registered in the
local civil registry where the marriage contract is recorded as well as in the proper registries of
properties. (Article 77 Family Code of the Philippines)
8. My husband and I did not execute a prenuptial agreement. During our marriage, my
mother donated a property me alone. Is the property mine?
Yes, property acquired during the marriage by gratuitous title by either spouse is deemed excluded
from the community property. (Article 92 (1) Family Code of the Philippines)
9. My husband and I have no pre-nuptial agreement. During our marriage my husband
engaged in cock-fighting and incurred debts. Am I liable for his debts as well?
No. Whatever your husband lost during your marriage in any game of chance or in betting,
sweepstakes, or any other kind of gambling whether permitted or prohibited by law, shall be borne by
him and shall not be charged to the properties owned in common. (Article 95 Family Code of the
Philippines)
10. Will the property I acquired before marriage form part of the community property?
Yes. All properties are deemed part of the community property in the absence of any marriage
settlement executed prior to the marriage.
However, properties 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 is deemed excluded
from the community property. (Article 92(3) Family Code of the Philippines)
11. My husband and I executed a conjugal partnership of gains pre-nuptial agreement
before our marriage. What property belongs to me?
The spouses retain the ownership, possession, administration and enjoyment of their exclusive
properties. (Article 110 Family Code of the Philippines)

The following shall be the exclusive property of each spouse:

1. That which is brought to the marriage as his or her own;
2. That which each acquires during the marriage by gratuitous title;
3. That which is acquired by right of redemption, by barter or by exchange with property
belonging to only one of the spouses; and
4. That which is purchased with exclusive money of the wife or of the husband. (Article 109
Family Code of the Philippines)
12. My present partner and I are unmarried, what property regime govern?
When parties who are capacitated to contract marriage live together as man and wife without the
benefit of marriage or under a void marriage, they are deemed as co-owners in equal share of their
wages, salaries and properties. (Article 147 Family Code of the Philippines)
13. My girlfriend and I are living together as husband and wife without the benefit of
marriage does she have a share in my income despite the fact that I am the sole
breadwinner?
Yes. In the absence of proof to the contrary, properties acquired while they lived together shall be
presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them
in equal shares.
Under the law, your girlfriend's care and maintenance are deemed as her contribution to the
union. (Article 147 Family Code of the Philippines)
14. I only recently learned that my marriage to my husband is void and that he knew all
along that our marriage was void. What will happen to our properties?
The share of the party who is in bad faith shall be forfeited in favor of the common children. However,
if the union produced no children or if the common children or their descendants waive their right to
their respective share, the properties shall belong to you. (Article 147 Family Code of the
Philippines)
15. My girlfriend is married to another man but they have since separated and we have
been living together as man and wife for several years already. What governs our property
relation?
You and your girlfriend are deemed as co-owners of the properties acquired through actual joint
contribution of money, property, or industry in proportion to your respective contributions. Absent any
proof actual contributions, the contributions and corresponding shares are presumed to be equal. The
same rule and presumption shall apply to joint deposits of money and evidences of credit.
However, since your girlfriend is validly married to another, her share in the co-ownership shall accrue
to the absolute community or conjugal partnership existing in her valid marriage. (Article 148
Family Code of the Philippines)

Donations by Reason of Marriage (Art. 82- 87)

What are donations by reason of marriage?

Donations by reason of marriage or donation propter nuptias, as stated in Article 82, are those which are
made before its celebration, in consideration of the same, and in favor of one or both of the future
spouses. Donations propter nuptias are without onerous consideration, the marriage being merely the
occasion or motive for the donation, not its causa.
Being liberalities, they remain subject to reduction for inofficiousness upon the donor's death, if they
should infringe the legitime of a forced heir. (Mateo v. Lagua, 29 SCRA 864)

What are the requisites of donation propter

nuptias?
As stated in Article 82 of the Family Code, these are the requisites of donation propter nuptias: (BOC)

It must be made before the celebration of the marriage

It must be in consideration of the marriage

Must be in favor of one or both of the spouses

The donor must be one of the betrothed (fiance) or any third person

What are the rules in case of donation on one of

the would be spouses:

There must be a valid marriage settlement stipulating a property regime other than the
absolute community of property.

Donation in marriage settlement must not be more than one-fifth of the present property.
However, limitation does not apply if donation propter nuptias is not included in the marriage settlement
BUT contained in a separate deed; general rules on donation apply subject to limitation that no person
may give/ receive by way of donation more than he may give/ receive by will.

It must be accepted by would be spouse.

It must comply with the requisites in Title II of Book II of the Civil Code on Donations.

Note: For donation of present property to be valid, the rules governing ordinary donations under Title III
of Book III of the Civil Code must be observed.

Who may validly donate in donation propter

nuptias?

Spouses to each other

Parents of one or both spouses

Third persons to either or both spouses

In donation propter nuptias, the marriage is a consideration but not in the sense of giving birth to the
obligation. There can be a valid donation even if the marriage never took place. However, the absence of
marriage is a ground for the revocation of the donation. (Solis v. Barroso, 1928).

What are the rules to follow in donation propter

nuptias?

The provisions of the Family Code (Art. 82- 87)

Ordinary Donation provisions (Art. 83, FC. Title III of Book III of the NCC)

Provisions of the testamentary succession and the formalities of wills for donations on future
property (Art. 84, par. 2)

What are the differences between a donation

propter nuptia and an ordinary donation?

Donation Propter Nuptias

Ordinary Donations

When it comes to formalities, it is When it comes to formalities, it is governed by

governed by the rules on ordinary donations the rules on donations (Articles 725- 773,
except that if future property is donated, it NCC)
must conform with the formalities of wills.

For present properties, it may be donated For present properties, there is NO limit,
by only up to 1/5 of the donors present except that the donor shall leave the property
property if the spouses agree on a regime enough for his support.
OTHER THAN the absolute community of
property regime.

Future
properties may be included, Future properties cannot be included.
provided that the donation is mortis causa.

As to express acceptance, donation Express acceptance is necessary.

propter nuptias does not require express
acceptance.

As to the age of validity, it may be made by Cannot be made by minors.

minors. (Art. 78)

Grounds for revocation would be Article Grounds for revocation would be in donation
86 of the Family Code
laws.

What are the rules on donation propter nuptias

BEFORE and DURING the marriage?
Before Marriage

During Marriage

General rule: If future spouses agree on a

regime
OTHER
THAN
the
absolute
community of property, they cannot donate to
each other more than 1/5 of their present
property. Excess shall be considered void.

Spouses cannot donate to each other, directly

or indirectly. Donations made by spouses to
each other during marriage are void. (Art. 87
of the Family Code).

Exception: Moderate gifts on the occasion of

Exception: If they are governed by the absolute family rejoicing.
community of property, which is considered
useless because spouses becomes co-owners of
all properties they bring into the marriage
and acquired during marriage.

Jurisprudence:

Matabuena v. Cervantes, 1971.

The donation between common- law spouses falls within the provision prohibiting donations
between spouses during marriage.

Harding v. Commercial Union, 1918.

The prohibition on donations can only be assailed by persons who bear such relation to the
parties or the property itself, that their rights are being interfered with. Here, the insurance
company of the donated car cannot assail the validity of the donation. In addition, the codal
exception of moderate gifts depends on the income class of the spouses and a car could be
considered a moderate gift that does not infringe the prohibition on donation between
spouses.

Sumbad v. CA, 1999.

The donation made by a man to a woman was held valid because no proof was shown that they
are still living in a common-law relationship at the time of the donation.

What is the rationale behind the prohibition of donation proper nuptias between spouses
during marriage?

To protect unsecured creditors from being defrauded;

To prevent the stronger spouse from imposing upon the weaker one the transfer of the latter's
property to the former;

To prevent indirect modification of the marriage settlement.

Does the law allow donation propter nuptia of

future property?

Donation propter nuptia of future property is allowed by way of exception to Article 751 of the New Civil
Code which provides that donations cannot comprehend future property. It is however governed by law
on testamentary succession both as to intrinsic and extrinsic validity, but said donation propter nuptias
cannot be revoked at the will of the donor but only on the basis of Article 86 of the Family Code.

What does the law say on donation propter nuptia

of encumbered property?
In donation propter nuptia of encumbered property, the donation is valid because the donor is still the
owner, even if it is encumbered. If mortgage is foreclosed and sold at a lesser price, the donee is not liable
for deficiency but if sold more, the donee is entitled to the excess. (Art. 85.)
Illustration:

Considered valid

o
o

In case of foreclosure:
if property value < obligation, donee is not liable.
if property value > obligation, donee shall be entitiled to the excess.

What are the grounds for revocation on donation

propter nuptias?

Marriage not celebrated or declared void ab initio except those made in marriage settlement that
do not depend on the celebraiton of the marriage. (If made by a stranger, action for revocation may be
brought under ordinary rules on prescription: if in writing, brought within 10 years and if oral, within
6 years.)

Marriage without parental consent.

Marriage is annulled and the donee is n bad faith.

Upon legal separation, the donee being the guilty spouse.

Complied with resolutory condition.

Donee commits acts of ingratitude as specified by Art. 765 of the New Civil Code.

What are the acts of ingratitude as stated in

Article 86, par. 6?

If the donee should commit some offense against the person, the honor or property of the donor,
or of his wife or children under his parental authority;


If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even
though he should prove it, unless the crime or the act has been committed against the donee himself, his
wife or children under his authority;

If he unduly refuses him to support when the donee is legally or morally bound to give support to
the donor.

What is the system of absolute community?

This is one of the regimes or systems of property relations between the spouses and the default
system in the absence of a prenuptial agreement or when the agreed system is null and void. This
system commences at the precise moment that the marriage is celebrated, and any stipulation for the
commencement of the community regime at any other time is void.
In a nutshell, the husband and the wife are considered as co-owners of all properties they bring into
the marriage (those that they owned before the marriage), as well as the properties acquired during
the marriage, except for certain properties express excluded by law (listed below). The rules on coownership applies in all matters not provided under the Family Code.
What constitutes community property?
Unless otherwise provided by law or in the marriage settlements, the community property shall consist
of all the property owned by the spouses at the time of the celebration of the marriage or acquired
thereafter. Property acquired during the marriage is PRESUMED to belong to the community, unless it
is proved that it is one of those excluded therefrom.
What properties are excluded from the community property?
(1) Property acquired during the marriage by gratuitous title (by donation and by testate/intestate
succession) 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;
(2) Property for personal and exclusive use of either spouse. However, jewelry shall form part of the
community property;
(3) 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.
Can a spouse waive his/her share in the community property during marriage?
No. Except in case of judicial separation of property, any waiver of rights, shares and effects of the
absolute community of property during the marriage can be made.
What are the charges and obligations of the absolute community?
The absolute community of property shall be liable for:

(1) The support of the spouses, their common children, and legitimate children of either spouse;
however, the support of illegitimate children shall be governed by the provisions of the Family Code on
Support;
(2) All debts and obligations contracted during the marriage by the designated administrator-spouse
for the benefit of the community, or by both spouses, or by one spouse with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the other to the extent
that the family may have been benefited;
(4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community
property;
(5) All taxes and expenses for mere preservation made during marriage upon the separate property of
either spouse used by the family;
(6) Expenses to enable either spouse to commence or complete a professional or vocational course, or
other activity for self-improvement;
(7) Ante-nuptial debts (debts contracted before the marriage) of either spouse insofar as they have
redounded to the benefit of the family;
(8) The value of what is donated or promised by both spouses in favor of their common legitimate
children for the exclusive purpose of commencing or completing a professional or vocational course or
other activity for self-improvement;
(9) Ante-nuptial debts of either spouse other than those falling under No. 7 above, the support of
illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or a
quasi-delict, in case of absence or insufficiency of the exclusive property of the debtor-spouse, the
payment of which shall be considered as advances to be deducted from the share of the debtorspouse upon liquidation of the community; and
(10) Expenses of litigation between the spouses unless the suit is found to be groundless.
If the community property is insufficient to cover the foregoing liabilities, except those falling under
paragraph (9), the spouses shall be solidarily liable for the unpaid balance with their separate
properties.
If a spouse incurs gambling loses in a casino, can he/she charge the amount to the
community

property?

No. Whatever may be lost 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.
Who administers and enjoys the community property?
Both spouses jointly enjoy the administration and enjoyment of the community property. In case of
disagreement, however, the husbands decision shall prevail, subject to recourse to the court by the
wife for proper remedy, which must be availed of within five years from the date of the contract
implementing such decision. In the event that one spouse is incapacitated or otherwise unable to
participate in the administration of the common properties, the other spouse may assume sole powers
of administration.
These powers do not include disposition or encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority or consent, the disposition or
encumbrance shall be void. However, the transaction shall be construed as a continuing offer on the
part of the consenting spouse and the third person, and may be perfected as a binding contract upon
the acceptance by the other spouse or authorization by the court before the offer is withdrawn by
either or both offerors.
What is the rule on disposition of properties of the spouses?
Either spouse may dispose by will of his or her interest in the community property. This is possible
because the will takes effect only upon the death. However, neither spouse may donate any
community property without the consent of the other. However, either spouse may, without the
consent of the other, make moderate donations from the community property for charity or on
occasions of family rejoicing or family distress.
When is the absolute community terminated?
(1)
(2)
(3)

Upon

the

When
When

there
the

death
is

marriage

a
is

of
decree
annulled

of
or

either

spouse;

legal

separation;

declared

void;

or

(4) In case of judicial separation of property during the marriage.

What happens if the spouses separate in fact?
The separation in fact or separation de facto (as opposed to legal separation), between husband and
wife shall not affect the regime of absolute community, except that:
(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) When the consent of one spouse to any transaction of the other is required by law, judicial
authorization shall be obtained in a summary proceeding;
(3) In the absence of sufficient community property, the separate property of both spouses shall be
solidarily liable for the support of the family. The spouse present shall, upon proper petition in a

summary proceeding, be given judicial authority to administer or encumber any specific separate
property of the other spouse and use the fruits or proceeds thereof to satisfy the latters share.
Is separation de facto different from abandonment?
Yes. In a separation de facto, the spouses may still be complying with their duty to support each other
and their children. The rule in case of abandonment is provided below.
What if a spouse abandons the other?
If a spouse without just cause abandons the other or fails to comply with his or her obligations to the
family (obligations to the family refer to marital, parental or property relations), the aggrieved
spouse may petition the court for receivership, for judicial separation of property or for authority to be
the sole administrator of the absolute community, subject to such precautionary conditions as the
court may impose.
A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling
without intention of returning. The 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 faciepresumed to have no intention of returning to the conjugal dwelling.
What is the procedure after the dissolution of the absolute community regime?
(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 of
the Family Code.
(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 the Family Code. For purpose of computing the net profits subject to forfeiture in
accordance with Articles 43, No. (2) and 63, No. (2), the said profits shall be the increase in value
between 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.
(5) The presumptive legitimes of the common children shall be delivered upon partition, in accordance
with Article 51 of the Family Code.

(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. Children below the age of seven years are deemed to have
chosen the mother, unless the court has decided otherwise. In case there in no such majority, the
court shall decide, taking into consideration the best interests of said children.
If a spouse dies, how is the community property liquidated?
Upon the termination of the marriage by death, the community property shall be liquidated in the
same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding
is instituted, the surviving spouse shall liquidate the community property either judicially or extrajudicially within six months from the death of the deceased spouse.
What happens if the foregoing procedure in the immediately preceding paragraph is not
carried out?
If the procedure on liquidation, as outlined above, is not followed: (a) any disposition or encumbrance
involving community property by the surviving spouse shall be void; and (b) any subsequent marriage
shall be governed by the mandatory regime of complete separation of property.