Mother can file verified petition before court prior to dissolution of conjugal gains
"My parents got married in 1982. Both of them work abroad. After thirty years of marriage, they separated because of long standing in-law issues, impulsive purchases of my father, and verbal abuse, to name a few. Now my father declared through a text message that he will be getting two properties while my mother gets the other two properties. He has relinquished all of his financial obligations to the properties he assigned to my mother. He has stopped all housing loan payments and remittances. Although my mom can assume the balances on the loans and pay using her own exclusive funds, we fear that someday he will interfere and demand his share of the properties since he is the one indicated in all the paperwork. It is also unlikely that he will sign and give his consent if my mother decides to sell or rent out the properties. My mother wants to send him a Compromise Agreement regarding the said properties for the filing of a judicial separation of property, but he refuses to provide information on his whereabouts.
Can you please advise us on what we can do to prevent my father from claiming his share of the properties assigned to my mother? Will this be governed by conjugal partnership of gains or by absolute community? Is my father’s consent needed to sell or rent my mother’s properties? Can my mother give the properties to me and transfer the titles to my name without my father’s consent? What can we do in case he contests the petition for judicial separation of property? Once my mother completes payments on all loans, will my father still have the right to get his share even after he reneged on his financial obligations?We’re a bit overwhelmed by our current situation. We hope you can enlighten us. Thank you so much for taking the time to read my letter. God bless!
Dear Melanie,Since your parents have agreed to separate their properties, it is advisable for them to file a petition before the courts to order the separation of their property regime. An order of separation of property is important, so your mother may fully protect her rights on the properties assigned to her. Article 134 of the Family Code states:
“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)”If your parents agree to bring the matter to the court, they must file a verified petition with the court for the voluntary dissolution of their absolute community or conjugal partnership of gains in accordance with Article 136 of the Family Code. In the said petition, all their properties will be listed. Their creditors, as a community and as individuals, will be listed and notified. Once the court declares the separation of the property, their property regime will be liquidated.If your father refuses to file a petition before the court, your mother may still file the same petition before the courts on her own following the same procedure in Article 136. According to the second sentence of Article 134, “such judicial separation of property may either be voluntary or for sufficient cause.” Article 135 enumerates the sufficient cause for seeking a judicial separation of property. Numbers (4) and (6) of Article 135 appears to apply in the case of your mother:“(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
“(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 filing a petition for separation of property for sufficient cause, a Compromise Agreement is not required. He may contest your mother’s petition, but it only means she must prove, despite your father’s objection, that their properties must be separated for sufficient cause. If your father will not disclose his present whereabouts, you may serve his summons by publication as provided in Sec. 14 of Rule 14 of the Rules of Court:“Sec. 14. Service upon defendant whose identity or whereabouts are unknown.—In any action where the defendant is designated as an unknown owner, or the like or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of court, be effected upon him by publication in a newspaper of general circulation and in such places and for such time as the court may order. (16a)”Once your parents file or your mother alone files a petition to dissolve their property regime and the court orders the separation of their property, your father cannot interfere with the properties assigned to your mother. They will no longer be governed by either conjugal partnership of gains or by absolute community, but by separation of property. Under this regime, “the spouses retain ownership, management, and control of their properties before the marriage and those acquired during the marriage, together with their earnings and fruits and accessions of their separate properties, and each of them is responsible for his or her liabilities...” (Sempio-Diy, Handbook on the Family Code of the Philippines, 2006 ed.) When they are governed by separation of property, the consent of your father is not required for her to sell or rent her properties. Your mother may dispose her properties without your father’s consent. If your mother completes payment of her loans, your father has no share in the properties she paid for.We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilAatimes.net"
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"Mother can file verified petition before court prior to dissolution of conjugal gains"
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and updated on 15 September 2021