Monday, May 16, 2016

The Marriage Series, Part 6: Dissolution of Absolute Community

How long will the Absolute Community Regime last?  According to the Family Code, the absolute community terminates, or ends:  

          (a) upon the death of either spouse; 

          (b) where there is a decree of legal separation; 

          (c) when the marriage is annulled or declared void; and 

          (d) in case of judicial separation of property during the marriage.

Does the Absolute Community end when a husband and wife physically separate, but do not undergo proceedings for legal separation or annulment? Generally, the answer is no. 

However, the law provides for certain exceptions:

     (a) When the spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported.

(b) When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding.

(c) In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family.  

The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share.

What is the remedy of one spouse where the other abandons the other, or fails to comply with his or her marital, parental or property relations obligations to the family? Article 101 of the Family Code states that the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose.

When is one spouse deemed to have abandoned the other? The law states that a spouse is deemed to have abandoned the other when he or she has left the conjugal dwelling without any intention of returning.  

The spouse who has left the conjugal dwelling for a period of 3 months, or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.

Friday, May 13, 2016

The Marriage Series, Part 5: Administration and Enjoyment of the Community Property

Who administers and gets to enjoy the community property? The Family Code provides that the administration and enjoyment of the community property shall belong to both spouses jointly. This means that decisions regarding the management and use of the community property must be made by the spouses together.

What if they disagree on something? The Family Code states that the husband’s decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the the contract implementing such decision.

What happens if one of the spouses cannot participate in the administration of the common properties? According to the Family Code, in the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. The Family Code goes on to state that these powers do not include the powers of disposition or encumbrance without the authority of the court or the written consent of the other spouse. This means that the spouse who administers the community property cannot sell or donate the community property, neither can he or she use the community property as collateral for a loan or mortgage the community property, without court authority or the other spouse’s written consent.

What happens if the administering spouse sells or mortgages the community property without court authority or the other spouse’s written consent?  The disposition of the property will be void. The transaction will be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or  authorization by the court before the offer is withdrawn by either or both spouses (Article 96, Family Code). In other words, if the administering spouse sells or mortgages the community property without court authority or the consent of the other spouse, the sale or the mortgage is considered void. The law, however, considers the transaction itself to be a continuing offer for the sale or the mortgage of the community property, and may be perfected as a binding contract once court authority or the written consent of the other spouse is obtained, before one or both of the spouses withdraws the offer.

Can a spouse make a donation from the community property without the consent of the other spouse? Generally, no. As an exception, however, a spouse can make moderate donations from the community property for charity or on occasions of family rejoicing or family distress, without the consent of the other spouse (Article 98, Family Code).

Monday, May 2, 2016

Violence Against Women and Children

VIOLENCE AGAINST WOMEN AND CHILDREN (VAWC). We constantly hear and see these words mentioned over and over again in news reports and in newspapers. But what do we really know about VAWC? Here are the basics, as taken from Republic Act 9262, or the Anti-Violence Against Women and Their Children Act of 2004.

Violence against women and their children (“VAWC”) is defined as any act or a series of acts committed by any person:

     (1) against a woman who is his wife or his former wife, or 

     (2) against a woman with whom the person has or had a sexual or dating relationship, or  with whom he has a common child, or 

     (3) against her child whether legitimate or illegitimate.

The act or acts are committed by the perpetrator within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.

VAWC includes, but is not limited to, the following:

     1. Physical Violence, which refers to acts that include bodily or physical harm;

     2. Sexual violence, which refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited to:

          a) Rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together in the same room with the abuser;

          b) Acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force, physical or other harm or threat of physical or other harm or coercion;

          c) Prostituting the woman or child.

     3. Psychological violence, which refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

     4. Economic abuse, which refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to the following:

          a) Withdrawal of financial support or preventing the victim from engaging in any legitimate profession, occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and moral grounds as defined in Article 73 of the Family Code;

          b) Deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the conjugal, community or property owned in common;

          c) Destroying household property;

          d) Controlling the victims' own money or properties or solely controlling the conjugal money or properties.

What can a victim of VAWC do to protect herself or her child?

The victim can apply for a Barangay Protection Order (BPO), a Temporary Protection Order (TPO), or a Permanent Protection Order (PPO).

The relief granted under a protection order serves the purpose of safeguarding the victim from further harm, minimizing any disruption in the victim's daily life, and facilitating the opportunity and ability of the victim to independently regain control over her life. The provisions of the protection order shall be enforced by law enforcement agencies. 

Where to Apply for a Protection Order
Applications for BPOs shall follow the rules on venue under Sec. 409 of the Local Government Code of 1991 and its implementing rules and regulations. 
Sec. 409 of the Local Government Code provides:
SEC. 409. Venue. - (a) Disputes between persons actually residing in the same barangay shall be brought for amicable settlement before the lupon of said barangay.
(b) Those involving actual residents of different barangays within the same city or municipality shall be brought in the barangay where the respondent or any of the respondents actually resides, at the election of the complainant.
(c) All disputes involving real property or any interest therein shall be brought in the barangay where the real property or the larger portion thereof is situated.
(d) Those arising at the workplace where the contending parties are employed or at the institution where such parties are enrolled for study, shall be brought in the barangay where such workplace or institution is located. Objections to venue shall be raised in the mediation proceedings before the punong barangay; otherwise, the same shall be deemed waived. Any legal question which may confront the punong barangay in resolving objections to venue herein referred to may be submitted to the Secretary of Justice, or his duly designated representative, whose ruling thereon shall be binding.
An application for a TPO or PPO may be filed in the regional trial court, metropolitan trial court, municipal trial court, municipal circuit trial court with territorial jurisdiction over the place of residence of the petitioner: provided, however, that if a family court exists in the place of residence of the petitioner, the application shall be filed with that court.
Who may file Petition for Protection Orders
A petition for protection order may be filed by any of the following:
     (a) The offended party;
     (b) Parents or guardians of the offended party;
      (c) Ascendants, descendants or collateral relatives within the fourth civil degree of consanguinity or affinity;
     (d) Officers or social workers of the DSWD or social workers of local government units (LGUs);
     (e) Police officers, preferably those in charge of women and children's desks;
     (f) Punong Barangay or Barangay Kagawad;
     (g) Lawyer, counselor, therapist or healthcare provider of the petitioner;
     (h) At least two (2) concerned responsible citizens of the city or municipality where the violence against women and their children occurred and who has personal knowledge of the offense committed.

Friday, April 29, 2016

The Marriage Series, Part 4: What the Absolute Community is Obligated to Pay For

According to Article 94 of the Family Code, during the couple’s marriage, the absolute community of property will answer for the following: 

(1) The support of the spouses and their common children; 

(2) All debts and obligations contracted during the marriage by the designated administrator spouse for the benefit of the community, or by both spouses, or by one spouse with the consent of the other; 

(3) Debts and obligations contracted by either spouse without the consent of the other to the extent that the family may have been benefited; 

(4) All taxes, liens, charges and expenses, including major or minor repairs, upon the community property; 

(5) All taxes and expenses for mere preservation made during marriage upon the separate property of either spouse used by the family; 

(6) Expenses to enable either spouse to commence or complete a professional or vocational course, or other activity for self-improvement; 

(7) Antenuptial debts of either spouse insofar as they have redounded to the benefit of the family, or in other words, debts incurred by either spouse before their marriage, which have benefited the family; 

(8) The value of what is donated or promised by both spouses in favor of their common legitimate children for the exclusive purpose of commencing or completing a professional or vocational course or other activity for self-improvement; 

(9) Antenuptial debts of either spouse other than those falling under paragraph (7), the support the support of illegitimate children of either spouse, and liabilities incurred by either spouse by reason of a crime or quasi-delict, in case of absence or insufficiency of the exclusive property  of the debtor-spouse, the payment of which shall be considered as advances to be deducted from the share of the debtor-spouse upon liquidation of the community; and 

(10) Expenses of litigation between the spouses unless the suit is found to be groundless.

The separate properties of each spouse will have to shoulder any unpaid balance if the community property is not enough to cover the above-mentioned liabilities, with the exception of the antenuptial debts of each spouse that did not benefit the family.

If the community property is insufficient to cover the foregoing liabilities, except those falling under paragraph 9, the spouses shall be solidarily liable for the unpaid balance with their separate properties.

Thursday, April 28, 2016

The Marriage Series, Part 3: Absolute Community of Property

What is the regime of absolute community? How are the properties of the husband and the wife affected under this regime? Under the absolute community of property regime, all property owned by the spouses at the time of the celebration of the marriage, or acquired thereafter, will form part of the community property (Family Code of the Philippines, Article 91). This means that everything the couple owns at the time they get married, and everything that they will own after their marriage, will belong to both of them. 

Is there any property that will be excluded from the community property? Yes. Under the Family Code, the following properties are excluded form the community property:

 (1) Property acquired during the marriage by gratuitous title by either spouse, and the fruits as well as the income thereof, if any, unless it is expressly provided by the donor, testator or grantor that they will form part of the community property; 

(2) Property for personal and exclusive use of either spouse. However, jewelry shall form part of the community property; and 

(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. 

In other words, property that a spouse receives by virtue of donation, succession, or any other form of gratuitous conveyance does not form part of the community property, and will remain the separate property of the spouse, unless the person who made the gratuitous conveyance expressly stated that the conveyance was for  both spouses, in which case, it will form part of the community property. Property that only one spouse can personally and exclusively use is also considered separate property. An example of such property would be clothing.

If one of the spouses is a widow or a widower, or was previously married and such marriage has been legally annulled, and has a child or children from the previous marriage, the property which that spouse acquired before the subsequent marriage, as well as any income that may be derived from the property, will form part of his or her separate property.

Thursday, April 21, 2016

The Marriage Series, Part 2: Property Relations

What is property relations? Property relations is how a husband and a wife relate to each other with regard to their properties, which include money, jewelry and land among others.

According to the Family Code of the Philippines, the property relations between husband and wife will be governed in the following order: 

(1) By marriage settlements executed before the marriage; 

(2) By the provisions of the New Civil Code as amended by the Family Code; and 

(3) By the local customs.

Couples who are about to get married are encouraged to execute a marriage settlement. What is a marriage settlement? A marriage settlement is an agreement between the future husband and the future wife, which establishes their property relations during their marriage. 

The Family Code of the Philippines provides for four economic regimes which the couple may choose to govern their future marriage. These regimes are: 

(1) the regime of absolute community; 

(2) the conjugal partnership of gains; 

(3) complete separation of property; and 

(4) any other regime. 

What if the couple chooses not to execute a marriage settlement? What regime will govern? According to the Family Code, in the absence of marriage settlements, or when the regime agreed upon is void, the system of absolute community of property as established in the Family Code will govern.

If you want a marriage settlement made or have questions regarding marriage settlements, please contact us at (032)268-0537 to schedule an appointment. Thank you!

Wednesday, April 20, 2016

The Marriage Series

Getting married? With June a little over a month away, many couples are now well into their wedding preparations. Unfortunately, however, a significant percentage of those couples are clueless about the realities they have to face after the wedding ceremony.  We have decided to publish a series to help couples prepare for their future married life.

The Marriage Series, Part 1 : Talking About Future Property Relations

There are some couples who are planning to get married, yet probably haven’t discussed their finances with their significant others. Have they incurred any debt? Who will pay for the debt once they are married? Who will pay for the utility bills, the rent or the mortgage, the future children’s tuition fees? Will the future stay-at-home wife get a monthly allowance? Will the future spouse with the less stable source of income be required to share in the household expenses? These are just few of the questions that many newly-married couples ask themselves, and which couples who plan to get married should ask themselves and each other before they get married.  We highly encourage couples who want to get married to take the time and talk about their finances and their properties, and how it would affect their property relations during their marriage, in order to prevent problems later on in their marriage.

If you need help planning out your property relations, please contact us at (032)268-0537 to schedule an appointment.