Separation of Property, Administration of Common Property, A134 Family Code

1. Concept

Separation of property – refers to the separation of the exclusive and personal assets and/or properties of the husband and wife.

a. How made

Separation of property may either be:

1) Stipulated under a prenuptial agreement before marriage; or

2) Judicial separation of property during the marriage.

2. Prenuptial separation of properties

The spouses may stipulate in their prenuptial agreement that their exclusive and personal assets and/or properties remain as such and not be pooled into a community property.

3. 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 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.

a. Modes

1) As provided in Article 134, judicial separation of property may be:

(a) Voluntary; or

(b) For sufficient cause.

2) Voluntary separation of property is allowed. After the celebration of marriage, the spouses may agree to separate their properties. They need not provide for any reason.

3) In some cases, only one spouse may wish to separate their properties after the celebration of their marriage. In such a case, the spouse concerned may do so and provide a cause. Since the law does not provide for specific causes, the reasons may vary such as the other spouse is being wasteful in spending or not sufficiently contributing to their marriage.

C. Protection of Creditors

1) In addition to protecting the interests of the spouses, the law also protects the interests of the creditors of any or both spouses. Hence, there is a need for a court order.

2) When the petition is filed, the court will require the spouses to provide an inventory of their properties, as well as their liabilities. Should they have any debts, the creditors concerns shall be notified and be allowed to intervene in the case to protect their interests.