Separation of Property: A143-146 Family Code

1. Suppletory Application

Art. 143. Should the future spouses agree in the marriage settlements that their property relations during marriage shall be governed by the regime of separation of property, the provisions of this Chapter shall be suppletory. (212a)

A. Prenuptial Agreement

1) Should future spouses decide on a separation of properties as their property regime, they

should do so via a marriage settlement or commonly known as a prenuptial agreement.

B. Family Code: Suppletory Application

2) In case of a separation of property, the Family Code provisions on Separation of Property under Chapter 6, Title IV, shall only be of suppletory application. Meaning, for incidents or situations not covered by their prenuptial agreement, the Family Code provisions will apply.

2. Nature

a. Present or Future

Art. 144. Separation of property may refer to present or future property or both. x x x

A. Present or Future

1) Separation of properties may cover:

(a) Present properties; or

(b) Future properties.

B. Present Properties

1) Present properties – refer to the respective properties of the future spouses before they get married.

2) Meaning, their respective properties before the marriage will remain and continue to be separated properties even after the marriage. However, they may decide that their future properties after the marriage will belong to the community property, whether as absolute community or via a conjugal partnership of gains.

C. Future Properties

1) Future properties – refer to the properties acquired by the future spouses after they get married.

2) Meaning, their respective properties before the marriage will be combined and will belong to the community property, whether as absolute community or via a conjugal partnership of gains. However, after marriage, whatever property each party acquires through his/her own efforts or means will be considered as separated properties.

b. Total or Partial

Art. 144. x x x It [Separation of property] may be total or partial. x x x

A. Total or Partial

1) In addition to whether present or future properties are separated, the future spouses may agree to:

(a) Total separation; or

(b) Partial separation.

2) Total separation of properties – refer to a complete separation of properties, without exception.

3) Partial separation of properties – refer to a separation of some properties.

4) For partial separation of properties, note that any property not agreed upon as separate shall pertain to the absolute community, to wit:

Art. 144. x x x In the latter case [partial separation of property], the property not agreed upon as separate shall pertain to the absolute community. (213a)

B. Permutation

1) As shown in the table below, separation of properties may be permuted as to whether they involve present or future properties and crossed with whether they are separated in total or partial.

Separation	Present	Future
Total	Total Separation of Present Properties	Total Separation of Future Properties
Partial	Partial Separation of Present Properties	Partial Separation of Future Properties

2) Note: Whether there is total or partial separation of present properties, the future properties may also be total or partial as illustrated below.

C. Total Separation

Separation	Present	Future
Total	Total Separation of Present Properties	Total Separation of Future Properties
Total	Total Separation of Present Properties	Partial Separation of Future Properties

1) Total separation of present properties – refer complete separation of present properties of the respective future spouses, without exception, before their marriage.

2) As to their future properties, they may agree to:

(a) Total Separation of Future Properties; or

(b) Partial Separation of Future Properties.

2) Total separation of future properties – refer complete separation of future properties of the respective future spouses, without exception, after their marriage.

3) Partial separation of present properties – refer separation of some properties of the respective future spouses, after their marriage.

D. Partial Separation

1) Partial separation of present properties – refer to separation of some of the properties of the respective future spouses, before their marriage.

2) As to their future properties, they may agree to:

(a) Total Separation of Future Properties; or

(b) Partial Separation of Future Properties.

Separation	Present	Future
Partial	Partial Separation of Present Properties	Total Separation of Future Properties
Partial	Partial Separation of Present Properties	Partial Separation of Future Properties

3. No consent needed from other spouse

a. Separate estate

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. x x x

b. Earnings

Art. 145. x x x To each spouse shall belong all earnings from his or her profession, business or industry x x x

c. Fruits

Art. 145. x x x To each spouse shall belong x x x all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property. (214a)

4. Family expenses

a. Pro-rated

Art. 146. Both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties. x x x

1) If the future spouses did not otherwise stipulate in the prenuptial agreement, they shall be liable for family expenses “in proportion to their income, or, in case of sufficiency or default thereof, to the current market value of their separate properties.”

2) Thus, there is no expectation that the spouses will equally share in paying for the family expenses in a separation of properties regime.

b. Solidary liability to creditors

Art. 146. x x x

The liabilities of the spouses to creditors for family expenses shall, however, be solidary. (215a)

1) Insofar as family expenses are concerned, and if there is no contrary stipulation in their prenuptial agreement, the spouses are solidarily liable to creditors for family expenses.

2) Considering that the Family Code provisions on separation of property is limited to suppletory application, it is possible that future spouses may stipulate that only the spouse concerned will be liable for a specific family expense incurred by said spouse. Thus, the other spouse will not be liable.

5. Judicial Separation of Properties

Art. 134. In the absence of an express declaration in the marriage settlements, the separation of property between spouses during the marriage shall not take place except by judicial order. Such judicial separation of property may either be voluntary or for sufficient cause. (190a)

1) Should the parties agree to a separation of properties after their marriage, they can only validly do so by filing a Petition for Separation of Properties before a competent regular court and obtaining a judicial order.

More: Separation of Property of the Spouses and Administration of Common Property: Chapter 5, Title IV, Family Code