Exclusions from the absolute community of property and conjugal partnership of gains

Getting married, Congratulations! We explain the exclusions under the Absolute Community of Property and the Conjugal Partnership of Gains. Knowing these differences will help you make a decision in choosing the right property regime for you.

Under the Family Code of the Philippines, there are property regimes such as:

(1) Absolute Community of Property;

(2) Conjugal Partnership of Gains; and

(3) Complete Separation of Property.

Absolute Community Property (ACP) is the default property regime for couples married without marriage settlement (or a prenuptial agreement) on or after August 3, 1988, which is the date of effectivity of the Family Code. It includes all the properties owned by either spouse before the marriage and all the properties acquired during the marriage which are not otherwise excluded. (Article 91, Family Code) Properties falling under the ACP are owned by the spouses in common regardless of whose name appears on the title or who paid for it.

On the other hand, in the Conjugal Partnership of Gains (CPG) regime, each spouse retains ownership of the property they brought into the marriage, but the income or fruits from these properties and all assets acquired during the marriage are jointly owned. (Article 106, Ibid.) Essentially, the spouses share the gains or profits acquired during the marriage under the CPG regime. The CPG can only apply if the spouses agree to it in a marriage settlement or pre-nuptial agreement before marriage. (Article 105, Family Code)

Regarding the exclusions from the ACP and the CPG, these are stated in the Family Code of the Philippines, specifically under Articles 92 and 109 of the said law, respectively.

Under Article 92 of the Family Code of the Philippines, the following shall be excluded from the ACP:

(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 shall 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;

(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.

On the other hand, the following shall be excluded from the CPG under Article 109 of the said law:

(1) That which is brought to the marriage as his or her own;

(2) That which each acquires during the marriage by gratuitous title;

(3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and

(4) That which is purchased with exclusive money of the wife or of the husband.” We hope that we were able to answer your queries.

Source: Ziggurat Real Estate

Can a foreigner inherit private land in the Philippines?

Please be informed that Sections 3, 7 and 8 of Article XII of the 1987 Philippine Constitution provide:

"Section 3. Lands of the public domain are classified into agricultural, forest or timber, mineral lands and national parks. Agricultural lands of the public domain may be further classified by law according to the uses to which they may be devoted. Alienable lands of the public domain shall be limited to agricultural lands. Private corporations or associations may not hold such alienable lands of the public domain except by lease, for a period not exceeding twenty-five years, renewable for not more than twenty-five years, and not to exceed one thousand hectares in area. Citizens of the Philippines may lease not more than five hundred hectares, or acquire not more than twelve hectares thereof, by purchase, homestead, or grant.

Taking into account the requirements of conservation, ecology, and development, and subject to the requirements of agrarian reform, the Congress shall determine, by law, the size of lands of the public domain which may be acquired, developed, held, or leased and the conditions therefor.

"Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.

"Section 8. Notwithstanding the provisions of Section 7 of this Article, a natural-born citizen of the Philippines who has lost his Philippine citizenship may be a transferee of private lands, subject to limitations provided by law. (Emphasis supplied)

In the case of Testate Estate of Jose Eugenio Ramirez et al. v. Marcelle D. Vda. De Ramirez et al., GR L-27952, Feb. 15, 1982, through Associate Justice Vicente Abad Santos, the Supreme Court ruled:

"We are of the opinion that the Constitutional provision which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will be for naught and meaningless.  Any alien would be able to circumvent the prohibition by paying money to a Philippine landowner in exchange for a devise of a piece of land." (Emphasis supplied)

While the afore-quoted decision was promulgated prior to the effectivity of the 1987 Constitution, it must be noted that the provision in the 1987 Constitution limiting an alien's right to own private land in the Philippines through hereditary succession was likewise found in Article XIII, Section 5 of the 1935 Constitution, to wit:

"SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain in the Philippines."

Pursuant to the aforementioned provisions of the 1987 Philippine Constitution, a foreign national is prohibited from owning private land in the Philippines, except in cases of hereditary succession. This mode of ownership, as clarified by the Supreme Court, is limited to intestate succession.

So if you are not a legal heir of a Filipino but were only constituted as an heir in their will, and the disposition involves private land, it cannot be legally enforced because it is a violation of the Philippine Constitution.

Source: Manila Times

Bigamy may be committed by one person

What happens when you marry a person who is still legally married to another person?

Are you also liable for the crime of bigamy?

Bigamy is a crime punishable under Article 349 of the Revised Penal Code of the Philippines:

"The penalty of prision mayor shall be imposed upon any person who shall contract a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouse has been declared presumptively dead by means of a judgment rendered in the proper proceedings."

To guide you further, the elements of bigamy were enumerated in Lasanas v. People of the Philippines, GR 159031, June 23, 2014, where the Supreme Court, through Chief Justice Lucas Bersamin, said:

"The elements of the crime of bigamy are as follows:

(1) that the offender has been legally married;

(2) that the marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he or she contracts a second or subsequent marriage; and

(4) that the second or subsequent marriage has all the essential requisites for validity.

Given the foregoing, one may be held liable for bigamy when the aforecited elements of the crime are present.

Yet, bigamy does not always entail the joint liability of two individuals.

As pronounced by the Supreme Court, through Associate Justice Salvador Esguerra, in the case of People of the Philippines v. Nepomuceno, Jr., GR L-40624, June 27, 1975:

"Appellant's contention that the crime of bigamy entails the joint liability of two persons who marry each other, while the previous marriage of one or the other is valid and subsisting is completely devoid of merit. Even a cursory scrutiny of Art. 349 of the Revised Penal Code will disclose that the crime of bigamy can be committed by one person who contracts a subsequent marriage while the former marriage is valid and subsisting. Bigamy is not similar to the crimes of adultery and concubinage, wherein the law (Art. 344, first and third pars., Revised Penal Code, and Sec. 4, Rule 110, Rules of Court) specifically requires that the culprits, if both are alive, should he prosecuted or included in the information. In the crime of bigamy, both the first and second spouses may be the offended parties depending on the circumstances, as when the second spouse married the accused without being aware of his previous marriage. Only if the second spouse had knowledge of the previous undissolved marriage of the accused could she be included in the information as a co-accused.

Bigamy is a public offense and a crime against status, while adultery and concubinage are private offenses and are crimes against chastity. In adultery and concubinage, pardon by the offended party will bar the prosecution of the case, which is not so in bigamy. It is, therefore, clear that bigamy is not similar to adultery or concubinage."

Thus, the offended party in the crime of bigamy may be the first or second spouse. The second spouse is an offended party if he or she has no knowledge of the previous undissolved marriage. Conversely, the second spouse can only be included in the information or complaint as co-accused in the crime of Bigamy if he or she had knowledge of the previous undissolved marriage at the time of their subsequent marriage.

Bigamy cannot be compared with Adultery or Concubinage because the latter are private offenses and classified as crimes against chastity, while the former is a public offense and is a crime against status.

Source: Manila Times