THE property relationship between husband and wife remains a very ticklish issue because by Filipino tradition, majority of prospective couples never consider preparing their own pre-nuptial contract or settlement.
For many couples and as embedded in our local culture, preparing such documents may be considered a "taboo" since the mere thought of doing so would already imply lack of trust between the prospective couples.
Because of this, if the marriage later on turns sour, the couples are confronted with problems relating to their properties that they may have brought into the marriage and those which are acquired after the marriage. The pertinent provisions found in the Civil Code and the Family Code relating to properties should serve as a tool or guide for the spouses, present and future, to be more circumspect with the preparation and eventually the implementation and execution.
Before the Family Code (Executive Order No. 209 as amended by Executive Order No. 227) took effect on August 4, 1988, the legal regime (or pre marriage property arrangements) that governs property relations between husband and wife was the "System of Conjugal Partnership of Gains." This regime stipulates that the properties the spouses acquired were separate and distinguished either as a "capital property" of the husband or "paraphernal property" of the wife, and only the gains or fruits from such properties are commonly owned by them.
Under the Family Code however, this regime of "Conjugal Partnership of Gains" is merely optional and must be provided in their marriage settlements or agreements, otherwise if none is adopted by the spouses, the "System of Absolute Community of Property" will govern. The Family Code encourages the future spouses to prepare and enter into a marriage settlement or also called "ante-nuptial agreement or contract."
Marriage Settlement (or Agreement) is a contract executed by the future spouses before the marriage will take place by which the enjoyment, devolution and legal rights on their properties are regulated. Also called "ante-nuptial agreement," it is a contract that details necessary provisions that both spouses agree on as to the ownership, nature and value of the properties which they bring into the marriage and other arrangements as to the ownership, disposition and distribution of future acquired properties.
To be valid, the "Marriage Settlement" must contain the following elements or requisites: it must be in writing, it must be a voluntary act of the contracting parties, it must be signed by the parties and it must be prepared and executed before the marriage. As provided under Article 75 of the Family Code: "The future spouses may, in the marriage settlement, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of marriage settlements, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern."
Briefly, the following regimes could be described as follows:
1. Absolute Community of Property - both the husband and wife are considered joint owners of all the properties acquired during the marriage. The properties which each spouse brings into the marriage, and those which they acquire during the marriage shall form a common mass (or ownership), each spouse losing the individual ownership of the property brought into the marriage because these will now be a joint co-ownership of the properties by the spouses.
2. Conjugal Partnership of Gains - this stipulates that only the profits of the partnership are divided between the spouses. Under this regime, the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and undertakings and those acquired by either or both spouses through their efforts or by chance.
3. Complete Separation of Spouses Property - the spouses during the marriage settlement may agree upon this regime which is a complete separation of their respective properties - "capital property" of the husband and "paraphernal property" of the wife. Separation of property 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.
Property Relations of Unions Without Marriage (Live-in Partners)
When a man and a woman who are "capacitated to marry each other" live together as husband and wife without the benefit of marriage or under a void marriage, all their wages and salaries shall be owned in equal shares and the property acquired by them through their work or industry shall be governed by the rules on co-ownership. Unless the contrary is proved, properties acquired while they lived together are presumed to have been obtained by their joint efforts.
When a man and a woman who are "not capacitated to marry each other" live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, only the properties acquired by them through their actual joint contribution of money, property or industry shall be owned by them in common in proportions to their respective contributions.
To all spouses, present and future, our advice: keep an open mind about this. It may be the key to succeed in marriage. (For questions, comments and more updates you can email me at bert_capili@yahoo.com)