A simpler way to divide Conjugal Property

by Atty. Francesco Britanico | Updated: Apr 27, 2024 | Blog, Family Law, Marriage Property

Conjugal Property

A couple can separate the Marriage Property without going through the acrimonious process of a
Legal Separation.

This article covers how to Divide Conjugal Property by discussing how to file Judicial
Separation of Property in the Philippines and the Grounds for Judicial Separation of Property.

Spouses of a failing marriage really should consider Judicial Separation of Property. It is a

simpler way to divide Conjugal Property when compared to the Annulment vs Legal Separation
routes.

Judicial Separation of Property is a court case. It is:

 Faster, cheaper and less difficult than Annulment vs Legal Separation

 It divides Conjugal Property between the Spouses during their lifetime
 It is recommended for when the Spouses already agree how to divide Conjugal Property
 It doesn’t end the marriage (only Annulment does).

An Annulment case will include the dividing of Conjugal Property but it may take twice as long.

Legal Separation also ends the Conjugal Property regime as well but it is expensive, time-
consuming, and much more difficult.

Spouses undertake a Judicial Separation of Property because they want to divide Conjugal
Property.

This may be because they plan to end their marriage.

Or they want to separate out the property they owned personally before they married from the
Conjugal Property.

If you would like to discuss your particular case further you can contact us here.

What is Conjugal Property?

Conjugal Property is income or property generated by both Spouses during their marriage.

In the absence of a Prenuptial Agreement, Philippine Conjugal Property Law sets the property
relations between Spouses.

The default Property Regime in Philippine law is Absolute Community of Property.[1]

Houses including the Family Home usually form part of Conjugal Property.

Under the Absolute Community of Property, husband and wife are joint owners of all the
properties of the marriage.

Whatever property each Spouse brought into the marriage and all properties acquired during the
marriage (with some exceptions) form Conjugal Property.

If the couple’s Community of Property is legally Dissolved, these common properties are divided
between them.

It is divided equally or in the proportion the parties have established, irrespective of the value
each Spouse may have originally owned.

Clothes are excluded from Conjugal Property during a Judicial Separation of Property as it is for
the use of only one Spouse.

The only properties exempted from the Absolute Community of Property are the following:

1. Property acquired during the marriage by either Spouse through inheritance, gift, or
donation, and the fruits as well as the income of that property, unless the giver specified
that the property shall form part of the Community Property.
2. Property for personal and exclusive use of either Spouse. However, jewelry is not
exempt. Jewelry forms Absolute Community of Property,
3. Property acquired before the marriage by either Spouse who has Legitimate Descendants
by a former marriage, and the fruits as well as the income, if any, of such property.[1]

How do you divide Conjugal Property under Legal

Separation?
I’ve written on this before. In Legal Separation, the Net Profits of the Conjugal Property is
awarded to the Innocent Spouse which means that this court case is expensive, time-consuming,
and is generally a court battle between the Spouses.

The court determines which of the Spouses is the Innocent Spouse.

Let me explain:

For Legal Separation to be granted by the Court, there must be one guilty Spouse.

The rule is that the guilty Spouse has no right to the Net Profits of the Conjugal Property.

The guilty Spouse’s share of the Net Profits is forfeited in favor of the children or the Innocent
Spouse.

You can read more about Legal Separation in the Philippines here.

Shares form part of Conjugal Property

The Net Profits of the Conjugal Property is defined as the increase between the Market Value of
that Conjugal Property at the time of the marriage and its Market Value at the time of
Dissolution.

This is significant.

It means that, if the Spouses had no assets when they married young, and they built up their
assets over the decades since, then the guilty Spouse will have no share in any of these assets
because they are all classified as Forfeited Net Profits.

In the case of Legal Separation the Conjugal Properties Net Profits are awarded to the “Innocent”
Spouse.

It makes the entire exercise a “winner takes all” contest which discourages compromise.

For this reason, Legal Separation is often disputed, protracted, punitive, and quite draconian.

Nonetheless, Legal Separation is what people often think of when they wish to separate their
property from the property of their Spouse.
But there is another way, and that is through Judicial Separation of Property.

What is the difference between Legal Separation and

Judicial Separation of Property?
Judicial Separation of Property and Legal Separation are both court cases that end the Conjugal
Property Regime but do not end the marriage. However, Judicial Separation of Property is faster,
cheaper and far less risky when compared with Legal Separation.

Let’s go through this in detail.

Legal Separation and Judicial Separation of Property are two are different cases based on
different parts of the Family Code.[3]

Under Legal Separation, the Spouses become entitled to live separately from each other and their
obligation of mutual support ceases in addition to dividing the Conjugal Property.

The law defines Legal Separation and Judicial Separation of Property differently.

In contrast, Judicial Separation of Property is concerned primarily with dividing the Conjugal
Property. The other marital obligations are unaffected.

In fact, the Spouses themselves do not necessarily have to be Separated when undertaking this
Judicial Separation of Property. They may wish to remain together and simply separate their
property.

What are the grounds for Judicial Separation of Property?

The Grounds for Judicial Separation of Property can be either Voluntary (where the Spouses
agree) or for Sufficient Cause, which I go into detail down below.

Voluntary Separation of Property involves both Spouses filing a joint Petition to separate their
Conjugal Property.

This means that they agreed to divide their property between them.

Their common agreement is grounds enough for a Judicial Separation of Property.

They then submit their proposal for how to divide the property to the Court.
Both spouses can file for Judicial Separation of Property. Or only one Spouse can file using
Sufficient Cause.

With Separation of Property for Sufficient Cause, just one of the Spouses can file for Judicial
Separation of Property on the basis of Sufficient Cause.

The following are Sufficient Cause:

(1) That the Spouse of the Petitioner has been sentenced to a Penalty which carries with it Civil
Interdiction (deprived the right to manage and dispose of his property);

(2) That the Spouse of the Petitioner has been Judicially declared an Absentee;

(3) That Loss of Parental Authority of the Spouse of the Petitioner has been decreed by the court;

(4) That the Spouse of the Petitioner has abandoned the latter or failed to comply with his or her
obligations to the family as provided for in Article 101 of the Family Code;

(5) That the Spouse granted the Power of Administration in the Marriage Settlements has abused
that power; and

(6) That at the time of the Petition, the Spouses have been Separated In Fact for at least one year
and reconciliation is highly improbable.

In the cases provided for in Numbers (1) , (2) and (3), the presentation of the Final Judgment
against the guilty or absent Spouse is enough basis to grant the Petition.[4]

Sufficient Cause (6) is of significant interest because, as with Voluntary Separation, it offers the
Spouses a De Facto no-fault Separation of Property.

How do you file for Judicial Separation of Property in the

Philippines?
To file for Judicial Separation of Property, you will need to present the division of the Conjugal
Property and determine the Grounds so that the case can be filed. You will also need to present
Witnesses in court to testify.

Below is a brief discussion of how to file Judicial Separation of Property in the Philippines and
what to expect from the court case:
A Sworn Petition, either jointly or singly, has to be filed with the Family Court.[5]

All Creditors of the marriage, including any Personal Creditors of the Spouses, must be listed in
the Petition. These Creditors must be notified that a Petition was filed in court. The court shall
take measures to protect the Creditors and other persons with a Pecuniary Interest in the marital
property.[6]

The Absolute Community of Property or the Conjugal Partnership shall pay for the support of
the Spouses and their children while the case is pending.[7]

The Petition will be heard by the Family Court.

If the Petition is Voluntary (i.e. jointly filed by the Spouses), it need not even give the Spouses’
reason for the Separation of Property because the agreement of the Spouses is enough. But if the
reason given is found to be against Public Policy, the court must reject the Agreement.[8]

The Petition to Separate the Property may even propose exactly how the properties are to be
separated. If this proposal is not contrary to Law and Public Policy, it shall be granted by the
court. The Agreement for the Division of the Community Property must be equal unless a
different division has been agreed upon in a Prenuptial Agreement or unless a Waiver of this
share is allowed by the court.[9]

Get your files in order as you will need a complete inventory of the Marital Property

Once the separation of property has been decreed, the marriage properties will be liquidated in
accordance with the Family Code.[10] The Family Code describes the process of liquidating the
conjugal properties thus:

(1) An inventory should be prepared, listing separately all the Conjugal Properties of the
marriage and the Exclusive Properties of each Spouse.

(2) The debts and obligations of the marriage shall be paid out of its Conjugal Property. In case
these assets are insufficient, the Spouses shall each be solidarily liable for the unpaid balance.

(3) Whatever remains of the Exclusive Properties of the Spouses shall then be delivered to each
of them.

To divide Conjugal Property between the Spouses, the Common Debts must be paid first.
(4) The Net Remainder of the Conjugal Properties are its Net Assets.

These will be divided equally between husband and wife, unless a different proportion or
division was agreed upon in the Marriage Settlements (Prenuptial Agreement), or unless there
has been a Voluntary Waiver.

[Involuntary Forfeiture of the Net Profits by a guilty Spouse is not provided for under Judicial
Separation of Property. It is a specific consequence only in cases of Legal Separation or of
bigamous marriages in bad faith.][11]

(5) The Presumptive Legitimes of the Common children (children of the marriage) shall be
delivered upon partition. [M. Sta. Maria (2010) is of the opinion that this is an optional provision
which need not be complied with.]

The Family or Conjugal Home goes to the Spouse with custody of most of the minor children

Each Spouse controls his own Estate after the Separation of Property court proceedings.

This means that each Spouse shall own, dispose of, possess, administer and enjoy his or her own
separate Estate, without the need for the consent of the other.

To each Spouse shall belong all earnings from his or her profession, business or industry and all
fruits, natural, industrial or civil, due or received during the marriage from his or her separate
property.[14]

Both Spouses shall bear the subsequent family expenses in proportion to their income, or, in case
of insufficiency or default thereof, to the current market value of their separate Properties.

However, expenses of the family shall be borne in proportion to their income or the Market
Value of their Estate.

However, the Liabilities of the Spouses to Creditors for family expenses shall be solidary and the
Separation of Property shall not prejudice the rights previously acquired by Creditors.[15]
Does Judicial Separation of Property impact on the
inheritance of our children?
By one interpretation of the Family Code, upon Judicial Separation of Property, the value of the
Mandatory Inheritance (known as the Legitime) of all Common Children shall be delivered to
them in cash, property or sound securities unless the parties have already provided for such
matters by a court approved Mutual Agreement.

In some interpretations, Presumptive Legitimes can be given to children as an advance on their

eventual inheritances.

The value of the Presumptive Legitimes is computed as of the date of the Final Judgment of the
trial court.

The children, their Guardian, or the Trustee of their property may ask for the enforcement of the
judgment.

This delivery of the Presumptive Legitimes shall not prejudice the ultimate Successional Rights
of the children upon the death of either parent.

However, the value of the properties already received shall be considered as advances on their
Legitime.[16]

However, others believe that Presumptive Legitimes need not be given as part of the Separation
of Property.

[Note however that Professor Melencio S. Sta. Maria, in his book on Persons and Family
Relations Law (2010), is of the opinion that these provisions on Legitime are optional and need
not be complied with.]

Can the Marital Property regime be revived after a Judicial

Separation of Property?
What if, years later, the spouses want to join their property in common again? Can they revive
the dissolved property regime?
Yes, they can if the Separation of Property was granted under Sufficient Cause.

The Spouses may file a Motion in court for a Decree reviving the Property Regime that existed
before the Separation of Property in any of the following instances:

(1) When the Civil Interdiction terminates;

(2) When the Absentee Spouse reappears;

The Conjugal Properties can be joined again if the Separation of Property was granted under
Sufficient Cause, such as an Absentee Spouse reappearing.

(3) When the court, being satisfied that the Spouse granted the Power of Administration in the
Marriage Settlements will not again abuse that power, authorizes the resumption of said
administration;

(4) When the Spouse who has left the Conjugal Home without a decree of Legal Separation
resumes Common Life with the other;

(5) When Parental Authority is judicially restored to the Spouse previously deprived thereof;

(6) When the Spouses who have Separated in Fact for at least one year, reconcile and resume
Common Life;

When Spouses reconcile, they can revive their Common Property Regime.

(7) When, after Voluntary Dissolution of the Conjugal Community has been judicially Decreed,
the Spouses jointly Petition for the revival of the former Property Regime.

It is worth noting that if the Judicial Separation of Property was voluntary (jointly filed), it can
only be granted once.

This means that if the Spouses do decide to revive their Marital Property Regime, they will not
be allowed to voluntarily separate it again.[17]

For one reason or another, married couples may want to end their Absolute Community of
Property. But they can find this difficult to do because Philippine law prohibits Divorce, and
because the conditions for Legal Separation are so onerous and punitive.
Judicial Separation of Property offers an alternative route for them to consider.

Atty. Francesco C. Britanico, FCB Law Office

Lawyers In the Philippines

References

[1] Article 75 of the Family Code of the Philippines

[2] Article 92
[3] Legal separation is found in Articles 55 to 67 while judicial separation of property is found in
Articles 134 to 141
[4] Article 135
[5] Article 136
[6] Article 136
[7] Article 137
[8] Sta. Maria, M.S., 2010. Persons and Family Relations Law. 5th ed. Manila: Rex, p. 564
[9] Ibid.
[10] Articles 137, 102, and 129
[11] Articles 63 and 43(2)
[12] Article 139
[13] Article 138
[14] Article 145
[15] Articles 146 and 140
[16] Article 51
[17] Article 141