Regime of Separation of Property

The most basic and logical choice in choosing what property regime governs ones soonto-be marriage is the regime of separation of property, and not for the wrong and selfish reasons
one would prejudicially come up with. Among the three regimes, this could be considered as the
least complicated and arguably, the least source of conflicts that would arise on the upcoming
marriage. Counting how many articles in the Family Code of the Philippines relating to the
absolute community of property or the conjugal partnership of gains would arrive at a much
more material number than those relevant to separation of property, thus giving the prima facie
evidence of its simplicity and beauty. One can even facilely state just the reasons why the former
two regimes would not be the best choice in order to justify the latter choice. However, the
independence of love and family from material and earthly possessions is a much preferred
idealistic scheme, and this can be exhibited as near as possible in what the law calls the
separation of property among the two hopefuls.
A lot of provisions in the Family Code could be infinitely assailed and criticized of its
imperfections and its failure to give a more meaningful and justifiable rationale in its
construction. For example, the absolute community of property provides in the Code in Article
91:
Art. 91. Unless otherwise provided in this Chapter 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.
(197a)
This blatantly automatic provision that effectively deprives the spouses of their full
control and maneuver of their property is one of those provisions that really doesnt make much
sense, considering that a material part of the Family Code is even devoted to the actions,
procedures and status of the marriage when it, in the slightest chance that it would, go haywire. It
almost completely contradicts itself, saying that the State supports the family because it is the
foundation of the nation, but then allots a lot of provisions regarding annulments and legal
separations. The drafters should have just stated directly that the State priortizes marriage and
protects it and gives it preference and legality as much as it would benefit the next guy, and then
said that they are very pessimistic in the lives and survival of said marriage. Something could
always go wrong in something, and marriage is not an exception. Separation of property saves all
of the would-be couples the trouble in even considering the possibilities of imminent splitting of
the two. Each of the future spouses should just keep their already hard-earned property with their
own hands. A huge amount of time, stress and dignity would be probably saved.
Articles 92 and 93 almost give the same reason not to choose absolute community
regime, which clearly states:
Art. 92. The following shall be excluded from the
community property:
(1) 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;
(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.
(201a)

Art. 93. Property acquired during the marriage is

presumed to belong to the community, unless it is proved
that it is one of those excluded therefrom. (160)
Why go all the trouble of combining all the property of the spouses and then segragating
them yet again? All these could be easily solved through the separation regime. One might
contend that the commingling of both the couples property is as sweet as the first honeydew
drop of summer solstice, but the hard truth is that this would almost always cause trouble in the
near or far future. An expression of trust and affection should not be so lowly gauged according
to your willingness to mix your property or even a part of it during the marriage. A compromise
between the couple on whose property will the family home be and whose cash would be spent
in the daily expenses should more than suffice the measly complications marriage settlements
seemingly attempt to solve. A gratuitous acquisition of property, personal property for the
exclusive use of one, and property acquired from a former marriage could simply be all separate,
including all others not mentioned. A weak notion and contention of the proof of true endearment
would not succeed as against the convenience of a better property regime.
Article 93 speaks of yet another strong presumption against the spouses. One would go
all the trouble to prove that it was really not part of the community but the exclusive property of
one spouse. In todays evolved world, it is much easier to defraud and falsify because of
emerging technology. This does not make it easier for people in simple good faith to defend
themselves, when the courts and the judges rely on hard evidence which is subject to quick
fragmentation. A separation of property from the very beginning completely avoids such
shenanigans, for the pieces of property are regarded as separate in the first place. A lot would be
saved from the fiasco. Greed and avarice can be reasonably mitigated in this setup. Respecting
each other and what each owns, and then creating an agreement both has its perks and preventive
measures.
The conjugal partnership of gains is nearly identical to the absolute community of
property in the sense that it includes also a combining of property, with some modifications
which dont really need to matter. Article 106 specifies such.
Art. 106. Under the regime of conjugal partnership of
gains, the husband and wife 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, and, 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. (142a)
Whats the point of placing their property in a common fund when they would just be
nitpicking some of it for exclusive use or for the benefit of both? If two would-be spouses still
need the force of law to make them behave among their shared property, then one would think it
questionable if they would be able to cope with the marriage itself, which most would consider
as the hardest ordeal. Discipline is key, and keeping ones avaricious thirst from wallowing all
wallowable property is the more proper solution to mans constant discontentment. Separating
each property as his or her own not only does not discriminate one spouse over the other due to
unequal value but it also allows the chance to make the couple better by making and creating
more compromises among themselves, and keeping material wanting at bay.
Separation of property eases the ways, means and conditions in respect to each of the
spouses property. This is magnificently stated in Article 145 of the Family Code.
Art. 145. 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. (214a)
To each his own as they say. Its not that it is selfish for the couple to keep his or
property to his own, but it completely detaches the essence of material possession. It should
prove that ones level of wealth and ownership of property is not the basis of choosing who to
marry and live with for the rest of ones life. To respect each other is to prosper together. Even if
some contend that true couples should not care about commingling their properties, it should be
the opposite that they should not care about possessing separate properties. Expenses of the
family can be compromised still by the couple, and it builds a better relationship than merely
following what the law states. Since compromises do not arise from what the law commands, it
offers a whole lot of meaning and magnitude when it comes to really being a couple and a
family. If anything goes wrong to the point of almost separating, then the separation property
regime serves all the more purpose and convenience. Anyway, the law enumerates and provides
for a myriad of articles relating to when marriages do not turn out quite well. This offers a simple
yet effective and convenient transition, or they may not be even a transition at all, to the
separation. It is the most practical regime to consider both in the good times and the bad times.
The benefits of it way outweigh the costs.
Marriage and family should be, in a very common sense, all for the heck of it. It should
not be shackled and chained in its magnanimity by so-called constructed rules of law that only
make the complications worse than they already are. Separation of property, being subject to the
least provisions in the Code, exemplifies its flexibility and lack of complexity, making it a better
choice between any of the two provided. It is the best measure of ones commitment to another
by ironically detaching oneself to the material desires of this world. By this regime, you can
definitely show your willingness in respecting each others ownership, isolating the possible
malice and temptation of acquiring more than what one parted with. True commitment is
detachment.
RICHARD L. CHICO

LLB-1

PERSONS AND FAMILY RELATIONS