When a man and a woman are about to get married, they areâ€”well, almost alwaysâ€”so madly in love, that talking about and agreeing on issues of property is unthinkable.
These matters are just not spoken about between love-struck couples for fear of hurting or insulting the other.
But 10 or so years into the marriage or when the union heads for a breakup, the issue of how to divide the properties acquired before and after the marriage, takes center stage.
What most people do not know is that this is a vital matter that must be agreed upon before marriage especially if one has properties to his or her name even before tying the knot.
Before the advent of the Family Code of the Philippines which came into force on Aug. 3, 1988, this was not a delicate issue.
In the absence of a prenuptial agreement then, couples who married were automatically governed by the regime of Conjugal Partnership of gains unless they had a prenuptial agreement. This meant that all the properties belonging to one before the marriage would remain to be his or her separate and exclusive property.
However, each one would have to put the income or profits of his separate property into a common fund for use in common by them.
A clear example of this is when one owns, say, apartments which he rents out. The apartments will remain to be his but the rentals earned by the apartments will be owned in common by him and his spouse to be used for their familyâ€™s needs.
Should they break up and succeed in getting a declaration of nullity of their marriage, then in the division of properties, these apartments will necessarily revert back to the original owner and will never be subject to partition between them.
All other properties which they will purchase during the marriage out of their incomes, salaries, joint work or efforts will be the only ones subject to a partition between them.
Now, what about properties acquired separately by spouses who no longer live together but whose marriage has been never annulled or voided? They remain to be conjugal because the reckoning is not physical togetherness or separation but the legal existence of the marital bond between them.
They may already be living with different partners but in the eyes of the law they continue to be legally married to one another. Hence, when they separate, all properties bought during the marriage by both or either of them, will be subject to partition as conjugal properties.
When the framers of the Family Code deliberated on the issue of property relations between spouses, it became their consensus that it is more in keeping with Filipino culture that the concept of absolute community of property govern married couples. Thus, since Aug. 3, 1988 couples who were wed became automatically governed by the regime of absolute community of property, unless they signed a prenuptial agreement stating how they wish their property relations to be.
The concept of absolute community of property simply means that everything one owns at the time of the wedding, be it real estate property, a car, shares of stock in companies or jewelry, automatically become coowned by the other spouse as soon as they exchange marriage vows. Whether the framers of the Family Code had wisely concluded that this mode of property relations is more in keeping with Filipino culture or not remains to be seen. What I have observed so far among â€œwarringâ€ spouses who have given up making their marriage work does not augur well for this concept, however.
One wealthy client who fell head-over-heels in love with a flamboyant young woman lamented that had he known about the â€œautomaticâ€ nature of the absolute community of property he would have thought many times over before getting hitched. On impulse, he and his young girlfriend exchanged vows before a town mayor, assisted by people who helped them obtain the necessary licenses. After only six months of living together, his pretty and flirtatious wife had an affair with a handsome foreigner and left him. Not only was he devastated at this, he was shocked that his wife subsequently filed a petition in court for the annulment of their marriage claiming that he was not psychologically fit to take on the obligations of marriage. His wife succeeded in getting a favorable judgment. What hurt him most was that everything he owned prior to their marriage, including those he inherited from his parents who had long passed away before his wedding, were ordered to be divided equally between them as a consequence of the declaration of nullity of their marriage.
The law provides that all properties owned by each of the spouses at the time of the celebration of the marriage and all properties acquired after the wedding, with the exception only of certain properties, whether they continue to live together or not, shall form part of their absolute community of properties.
The only exclusions from the absolute community are three types of properties. First are properties acquired by inheritance or donation to one spouse during the marriage. All properties inherited by one before the marriage are not exempt because they form part of those properties he brings into the marriage.
This means that if a person inherits properties from his parents after he has gotten married or receives a donation from them meant to be exclusively his alone, then this inherited or donated property including the incomes derived from it, will be his exclusive and separate property. However, if he already owns properties at the time of the wedding even if these were inherited, these properties automatically become part of the absolute community of property.
Another type of properties not included in the absolute community are those acquired by one spouse during a prior marriage where he has legitimate children. This is so because the children from the prior marriage have an inherent right of inheritance over the properties.
The last exclusion from the coverage of the absolute community of properties are personal effects for the exclusive use of either spouse such as clothes, shoes and similar items. Jewelry, however, are not considered personal effects, hence they become part of the community of properties.
It pays to understand the nuances of property relations in marriage before one plunges blindly into it. Regrets always come late in the day.