Property Regime of Unions Without Marriage, A147-148 Family Code
1. Concept
Unions without marriage – refer to the situation where a man and a woman who live exclusively with each other as husband and wife, but without being legally married.
a. Types
In unions without marriage, the parties may either be:
1) Capacitated to marry each other or under a void marriage (Art. 147); or
2) Incapacitated to marry each other (Art. 148).
2. Capacitated to marry each other or under a void marriage (Art. 147)
The term “capacitated” in the first paragraph of [Article 147] pertains to the legal capacity of a party to contract marriage. (Barrido v. Nonato, G.R. No. 176492, October 20, 2014, Per Peralta, J.)
NB: Under the 1st type of unions without marriage, the arrangement is also referred to as “common-law marriage” with the parties referred to as “common-law spouses”.
One of the effects of the declaration of nullity of marriage is the separation of the property of the spouses according to the applicable property regime. Considering that the two marriages are void ab initio, the applicable property regime would not be absolute community or conjugal partnership of property, but rather, be governed by the provisions of Articles 147 and 148 of the Family Code on “Property Regime of Unions Without Marriage.” (Cariño v. Cariño, G.R. No. 132529, February 2, 2001, Per Ynares-Santiago, J.)
[I]n a void marriage, as in those declared void under Article 36 of the Family Code, the property relations of the parties during the period of cohabitation is governed either by Article 147 or Article 148 of the Family Code. (Ocampo v. Ocampo, G.R. No. 198908, August 3, 2015, Per Peralta, J.)
a. Requisites
For Article 147 of the Family Code to apply, the following elements must be present:
1. The man and the woman must be capacitated to marry each other;
2. They live exclusively with each other as husband and wife; and
3. Their union is without the benefit of marriage, or their marriage is void. (Diño v. Diño, G.R. No. 178044, January 19, 2011, Per Carpio, J.)
b. Co-ownership
Art. 147. When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership. x x x
Article 147 specifically covers the effects of void marriages on the spouses’ property relations. (Barrido v. Nonato [2014], supra.)
Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party’s “efforts consisted in the care and maintenance of the family household.” Unlike the conjugal partnership of gains, the fruits of the couple’s separate property are not included in the co-ownership. (Valdes v. RTC, G.R. No. 122749, July 31, 1996, Per Vitug, J.)
Ocampo v. Ocampo, G.R. No. 198908, August 3, 2015, Per Peralta, J.:
• While it may be true that management of the businesses referred to herein may have been actively undertaken by the petitioner, it cannot be gainsaid that petitioner was able to do so without the invaluable help of respondent. Even a plain housewife who stays all the time in the house and take[s] care of the household while the husband indulges in lucrative and gainful activities is entitled to a share in the same proportion the husband is, to the property or properties acquired by the marriage. In the same breadth, respondent must be considered to be entitled to the same extent. Petitioner’s claim that the seed money in that business was provided by her mother and that, had it not been for that reason, the properties now subject of controversy could not have been acquired. That may be true but the Court is not prone to believe so because of insufficient evidence to prove such contention but petitioner’s self-serving allegations. Of course, attempts to establish respondent as an irresponsible and unfaithful husband, as well as family man were made but the testimonies adduced towards that end, failed to fully convince the Court that respondent should be punished by depriving him of his share of the conjugal property because of his indiscretion.
• Likewise, we note that the former spouses both substantially agree that they acquired the subject properties during the subsistence of their marriage. The certificates of titles and tax declarations are not sufficient proof to overcome the presumption under Article 116 of the Family Code. All properties acquired by the spouses during the marriage, regardless in whose name the properties are registered, are presumed conjugal unless proved otherwise. The presumption is not rebutted by the mere fact that the certificate of title of the property or the tax declaration is in the name of one of the spouses only. Article 116 expressly provides that the presumption remains even if the property is “registered in the name of one or both of the spouses.” Thus, the failure of Virginia to rebut this presumption, said properties were obtained by the spouses’ joint efforts, work or industry, and shall be jointly owned by them in equal shares.
Barrido v. Nonato, G.R. No. 176492, October 20, 2014, Per Peralta, J.:
• Any impediment to marry has not been shown to have existed on the part of either Nonato or Barrido. They lived exclusively with each other as husband and wife. However, their marriage was found to be void under Article 36 of the Family Code on the ground of psychological incapacity.
• Under this property regime, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. Any property acquired during the union is prima facie presumed to have been obtained through their joint efforts. A party who did not participate in the acquisition of the property shall be considered as having contributed to the same jointly if said party’s efforts consisted in the care and maintenance of the family household. Efforts in the care and maintenance of the family and household are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry.
• Here, the former spouses both agree that they acquired the subject property during the subsistence of their marriage. Thus, it shall be presumed to have been obtained by their joint efforts, work or industry, and shall be jointly owned by them in equal shares.
c. Presumption
Art. 147. x x x
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. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household. x x x
When the common-law spouses suffer from a legal impediment to marry or when they do not live exclusively with each other (as husband and wife), only the property acquired by both of them through their actual joint contribution of money, property or industry shall be owned in common and in proportion to their respective contributions. Such contributions and corresponding shares, however, are prima facie presumed to be equal. The share of any party who is married to another shall accrue to the absolute community or conjugal partnership, as the case may be, if so existing under a valid marriage. If the party who has acted in bad faith is not validly married to another, his or her share shall be forfeited in the manner already heretofore expressed. (Valdes v. RTC [1996], supra.)
Cariño v. Cariño, G.R. No. 132529, February 2, 2001, Per Ynares-Santiago, J.:
• As to the property regime of petitioner Susan Nicdao and the deceased, Article 147 of the Family Code governs. This article applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void for other reasons, like the absence of a marriage license.
• In contrast to Article 148, under [Article 147], wages and salaries earned by either party during the cohabitation shall be owned by the parties in equal shares and will be divided equally between them, even if only one party earned the wages and the other did not contribute thereto. Conformably, even if the disputed “death benefits” were earned by the deceased alone as a government employee, Article 147 creates a co-ownership in respect thereto, entitling the petitioner to share one-half thereof. As there is no allegation of bad faith in the present case, both parties of the first marriage are presumed to be in good faith. Thus, one-half of the subject “death benefits” under scrutiny shall go to the petitioner as her share in the property regime, and the other half pertaining to the deceased shall pass by, intestate succession, to his legal heirs, namely, his children with Susan Nicdao.
d. Mutual consent for encumbrance or disposal
Art. 147. x x x
Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation. x x x
e. Bad faith
Art. 147. x x x
When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. (144a)
2. Incapacitated to marry each other (Art. 148)
a. Bigamous or adulterous marriages
[A]rticle 148 of the Family Code… refers to the property regime of bigamous marriages, adulterous relationships, relationships in a state of concubine, relationships where both man and woman are married to other persons, multiple alliances of the same married man… (Cariño v. Cariño [2001], supra.)
b. Cohabitation, defined
The term “cohabit” means to dwell together, in the manner of husband and wife, for some period of time, as distinguished from occasional, transient interviews for unlawful intercourse. (People vs. Pitoc, 43 Phil., 758.) And, whether an association, for illicit intercourse, has been such as to constitute an unlawful assumption of the conjugal relation, is, in every case a question of fact (74 A. L. R., 1363), and the extent of such association as to constitute a cohabitation within the meaning of the law, is a matter of court’s appreciation. (Benasa v. Mahor, G.R. No. 236659, August 31, 2022, Per Lopez, J.)
People v. Pitoc and Del Basco, En Banc, G.R. No. 18513, September 18, 1922, Per Johns, J.:
• The word cohabit has many different meanings, each depending upon the sense in which it is used. Here, we have a law intended to prohibit a married man from keeping a mistress in his dwelling or anywhere else under “scandalous circumstances.” Hence, the meaning of the word cohabit here must relate and he confined to the subject matter of the law itself. When used in that sense, it should be construed to mean “to dwell or live together as husband and wife; to live together as husband and wife although not legally married; to live together in the same house, claiming to be married; to live together at bed and board.” (Corpus Juris, vol., 11, p. 950.)
• Words and Phrases, vol., 2, page 1243, says:
“Cohabit” means, according to Webster, first, to dwell with another in the same place; second, to live together as husband and wife.
Bishop, in his work on Marriage, Divorce, and Separation, par. 1669, says to “cohabit” is to dwell together, so that matrimonial cohabitation is the living together of a man and woman ostensibly as husband and wife.
The word “cohabit” is said to mean to dwell or live together as husband and wife. And as used in Pub. St. c. 207, par. 4, providing that whoever, having a former wife living, marries another or continues to cohabit with such second wife, is guilty of bigamy, etc.
“Obviously the legal sense of the term, as used in Act 1877-78, p. 302, c. 7, par. 7, making it criminal for persons not married to cohabit together, is to live together in the same house as married persons living together or in the manner of husband and wife.”
To “cohabit,” according to the sense in which the word is used in a penal statute, means dwelling together as husband and wife, or in sexual intercourse, and comprises a continued period of time. Hence the offense is not the single act of adultery; it is cohabiting in a state of adultery; and it may be a week, a month, a year, or longer, but still it is one offense only.
To “cohabit” means to dwell together, inhabit or reside in company, or in the same place or country. Specifically, “to dwell or live together as husband and wife,” often with reference to persons not legally married, and usually, but not always, implying sexual intercourse. (Cox vs. State, 23 South., 806; 117 Ala., 103; 41 L.R.A., 760; 67 Am. St. Rep., 166 [quoting Cent. Dict.].)
c. Actual contribution; Pro-rated ownership
Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. x x x
Under Article 148 of the Family Code, a man and a woman who are not legally capacitated to marry each other, but who nonetheless live together conjugally, may be deemed co-owners of a property acquired during the cohabitation only upon proof that each made an actual contribution to its acquisition. Hence, mere cohabitation without proof of contribution will not result in a co-ownership. (Tumlos v. Fernandez et al., G.R. No. 137650, April 12, 2000, Per Panganiban, J.)
Tumlos v. Fernandez et al., G.R. No. 137650, April 12, 2000, Per Panganiban, J.:
• Even considering the evidence presented before the MTC and the RTC, we cannot accept petitioner’s submission that she is a co-owner of the disputed property pursuant to Article 144 of the Civil Code.
• Based on evidence presented by respondents, as well as those submitted by petitioner herself before the RTC, it is clear that Mario Fernandez was incapacitated to marry petitioner because he was legally married to Lourdes Fernandez. It is also clear that, as readily admitted by petitioner, she cohabited with Mario in a state of concubinage.
• Likewise, her claim of having administered the property during the cohabitation is unsubstantiated. In any event, this fact by itself does not justify her claim, for nothing in Article 148 of the Family Code provides that the administration of the property amounts to a contribution in its acquisition.
• Clearly, there is no basis for petitioner’s claim of co-ownership. The property in question belongs to the conjugal partnership of respondents.
d. Presumption
Art. 148. x x x In the absence of proof to the contrary, their 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. x x x
Cariño v. Cariño, G.R. No. 132529, February 2, 2001, Per Ynares-Santiago, J.:
• Considering that the marriage of respondent Susan Yee and the deceased is a bigamous marriage, having been solemnized during the subsistence of a previous marriage then presumed to be valid (between petitioner and the deceased), the application of Article 148 is therefore in order.
• The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.], NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly renumerations, incentives and benefits from governmental agencies earned by the deceased as a police officer. Unless respondent Susan Yee presents proof to the contrary, it could not be said that she contributed money, property or industry in the acquisition of these monetary benefits. Hence, they are not owned in common by respondent and the deceased, but belong to the deceased alone and respondent has no right whatsoever to claim the same. By intestate succession, the said “death benefits” of the deceased shall pass to his legal heirs. And, respondent, not being the legal wife of the deceased is not one of them.
