CIVIL LAW
REVIEW I
ACP vs. CPG
By Olive
Cachapero
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Absolute Community Property
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Difference
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Conjugal Partnership Gains
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Default property regime under the Family Code, in the absence of
marriage settlement, or when the regime agreed upon is void
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Default Property Regime
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Default property regime
under the Old Civil Code
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Art. 88. The absolute community of property between spouses shall commence at
the precise moment that the marriage is celebrated. Any stipulation, express
or implied, for the commencement of the community regime at any other time
shall be void.
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Commencement
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Art. 88. The absolute community of property between spouses shall commence at
the precise moment that the marriage is celebrated. Any stipulation, express
or implied, for the commencement of the community regime at any other time
shall be void.
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Art. 91, FC. Unless otherwise provided in this Chapter or in the marriage
settlements, the community property shall consist of
ü all the property owned by the spouses at the time of the celebration of
the marriage or
ü acquired thereafter.
ü including winnings from gambling (Art.
95, FC)
{ basically EVERYTHING, hence no need to worry about interest, winnings,
fines, etc. (see Articles
106, 115, 118, 119, 120)
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What constitutes ACP/CPG
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Art. 106,FC. Under the regime of conjugal partnership of gains, the husband and
wife place in a common fund the
ü proceeds, products, fruits and income from their separate properties
and
ü those acquired by either or both spouses through their efforts or by
chance, and,
ü upon dissolution of the marriage or of the partnership, the net gains
or benefits obtained by either or both spouses shall be divided equally
between them, unless otherwise agreed in the marriage settlements.
Art. 117. The following are conjugal partnership properties:
1)
Those
acquired by onerous title during the marriage at the expense of the common
fund, whether the acquisition be for the partnership, or for only one of the
spouses;
2) Those obtained from the labor, industry, work or
profession of either or both of the spouses;
3) The fruits, natural, industrial, or civil, due or
received during the marriage from the common property, as well as the net
fruits from the exclusive property of each spouse;
4) The share of either spouse in the hidden treasure
which the law awards to the finder or owner of the property where the
treasure is found;
5) Those acquired through occupation such as fishing or
hunting;
6) Livestock existing upon the dissolution of the
partnership in excess of the number of each kind brought to the marriage by
either spouse; and
7) Those which are acquired by chance, such as winnings
from gambling or betting. However, losses therefrom shall be borne
exclusively by the loser-spouse.
Including: (Family Code)
ü Art.
118. Property bought on
installments paid party from exclusive funds of either spouses and arty from
conjugal funds, if full ownership was vested DURING the marriage (subj to
reimbursement upon liquidation of partnership)
ü Art.
119. Interest falling due DURING
the marriage, accruing from a credit payable to the spouse (but the principal
belongs exclusively to the creditor-spouse)
ü Art.
120. Ownership of improvements
(whether for utility or adornment) on the separate property of the spouses at
the expense of the partnership or through the acts/efforts of either or both
spouses belong to the CPG OR the owner-spouse subject to reimbursement
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Art. 92, FC. The following shall be excluded from 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 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.
{ Art. 92 (1) even fruits are excluded
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Exclusions
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FC Art. 109. The following shall be the exclusive property of each spouse:
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.
Also:
ü Art. 122. Payment of personal debts of H/W
before/during the marriage which has NOT redounded to the benefit of the
family
ü Art. 122. Fines
and pecuniary indemnities imposed upon the H/W
{
Art.
109 (2) only the property is excluded but its fruits belong to the CPG
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Art. 90, FC. The provisions on CO-OWNERSHIP
shall apply to the absolute community of property between the spouses in all
matters not provided for in this Chapter.
{ Hence, simply divide by two
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Suppletory Rule
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FC Art. 108. The conjugal partnership shall be governed by the rules on the
contract of PARTNERSHIP in all
that is not in conflict with what is expressly determined in this Chapter or
by the spouses in their marriage settlements.
{
Still
have to worry about who uses, who pays, etc.
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FC Art.
93.
Property acquired during the marriage is presumed to belong to the community,
unless it is proved that it is one of those excluded therefrom.
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Presumption
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Article 160, NCC. All property of the marriage is presumed to belong to
the conjugal partnership, unless it be proved that it pertains exclusively
to the husband or to the wife.
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FC Art. 94. The absolute community of property shall be liable for:
1)
The support of the
spouses, their common children, and legitimate children of either spouse;
however, the support of illegitimate children shall be governed by the
provisions of this Code on Support;
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;
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) of this Article, the support of
illegitimate children of either spouse, and liabilities incurred
by either spouse by reason of a crime or a 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.
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.
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Charges from ACP/CPG
NOTE: Art. 94 (5) vs. Art. 121 (5)
Art. 94 has #9 while
Art. 121 has no such provision. Such provision for CPG is found in Art. 122.
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Art. 121. The conjugal partnership shall be liable for:
1)
The
support of the spouse, their common children, and the legitimate children of
either spouse; however, the support of illegitimate children shall be
governed by the provisions of this Code on Support;
2) All debts and obligations contracted during the
marriage by the designated administrator-spouse for the benefit of the
conjugal partnership of gains, or by both spouses or by one of them 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
benefited;
4) All taxes, liens, charges, and expenses, including
major or minor repairs upon the conjugal partnership property;
5) All taxes and expenses for mere preservation made
during the marriage upon the separate property of either spouse;
6) Expenses to enable either spouse to commence or
complete a professional, vocational, or other activity for self-improvement;
7) Antenuptial debts of either spouse insofar as they
have redounded to the benefit of 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; and
9) Expenses of litigation between the spouses unless the
suit is found to groundless.
If the conjugal partnership is
insufficient to cover the foregoing liabilities, the spouses shall be
solidarily liable for the unpaid balance with their separate properties.
Including:
ü
Art. 122. Payment of personal debts of H/W before/during the
marriage insofar as they redounded to the benefit of the family
ü
Art. 122. Personal debts, fines and indemnities, support of
illegitimate children of either spouse, may be enforced against the
partnership upon the ff conditions:
1)
After
the responsibilities under Art. 121 are paid, AND
2)
If
the spouse has no exclusive property or sufficient property
3)
Provided,
that these will be charged to the spouse upon liquidation of the partnership
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FC Art. 96. The administration and enjoyment of the community property shall
belong to both spouses jointly.
·
Disagreement:
husband's decision shall prevail, subject to recourse to the court by the
wife for proper remedy, which must be availed of within five years from the
date of the contract implementing such decision.
·
One
spouse is incapacitated/unable to participate in the administration of the
conjugal properties: the other spouse may assume sole powers of
administration. These powers do not include disposition or encumbrance
without authority of the court or the written consent of the other spouse. In
the absence of such authority or consent, the disposition or encumbrance
shall be void. However, the transaction shall 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
offerors.
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Ownership, Administration & enjoyment
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FC Art.
124. The
administration and enjoyment of the conjugal partnership shall belong to both
spouses jointly.
·
Same as
Art. 96
FC Art. 142. The administration of all classes of exclusive property of either
spouse may be transferred by the court to the other spouse:
1)
When one spouse becomes the guardian
of the other;
2) When one spouse is judicially declared an absentee;
3) When one spouse is sentenced to a penalty which carries with it civil
interdiction; or
4) When one spouse becomes a fugitive from justice or is in hiding
as an accused in a criminal case.
If the other spouse is not qualified by reason of incompetence,
conflict of interest, or any other just cause, the court shall appoint a
suitable person to be the administrator.
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Art. 100 (3) FC. 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.
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Support of family in case of separation in fact bet.
H&W
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Art. 127 (3). In the absence of sufficient conjugal
partnership property, the separate property of both spouses shall be
solidarily liable for the support of the family. The spouse present shall,
upon 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.
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Art. 99. The absolute community terminates:
1)
Upon the death of either
spouse;
2) When there is a decree of legal separation;
3) When the marriage is annulled or declared void; or
4) In case of judicial separation of property during the marriage under
Article 134 to 138.
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Termination
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FC Art. 126. The conjugal partnership terminates:
1)
Upon
the death of either spouse;
2) When there is a decree of legal separation;
3) When the marriage is annulled or declared void; or
4) In case of judicial separation of property during the
marriage under Articles 134 to 138.
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Art. 102. Upon dissolution of the absolute community regime, the following
procedure shall apply:
1)
An inventory shall be prepared,
listing separately all the properties of the absolute community and the
exclusive properties of each spouse.
2) The debts and obligations of the absolute community shall be paid out
of its assets. In case of insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their separate properties in
accordance with the provisions of the second paragraph of Article 94.
3) Whatever remains of the exclusive properties of the spouses shall
thereafter be delivered to each of them.
4) The net remainder of the properties of the absolute community shall
constitute its net assets, which shall be divided equally between husband and
wife, unless a different proportion or division was agreed upon in the
marriage settlements, or unless there has been a voluntary waiver of such
share provided in this Code. For purpose of computing the net profits subject
to forfeiture in accordance with Articles 43, No. (2) and 63, No. (2), the
said profits shall be the increase in value between the market value of the
community property at the time of the celebration of the marriage and the
market value at the time of its dissolution.
5) The presumptive legitimes of the common children shall be delivered
upon partition, in accordance with Article 51.
6) Unless otherwise agreed upon by the parties, in the partition of the
properties, the conjugal dwelling and the lot on which it is situated shall
be adjudicated to the spouse with whom the majority of the common children
choose to remain. Children below the age of seven years are deemed to have
chosen the mother, unless the court has decided otherwise. In case there in
no such majority, the court shall decide, taking into consideration the best
interests of said children.
{ Formula: Net proceeds = Net Assets/2
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Dissolution
NOTE: Art. 102 (5) and
Art. 129 (8) apply only in Articles 40 and 45.
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Art. 129. Upon the dissolution of the conjugal partnership
regime, the following procedure shall apply:
1)
An
inventory shall be prepared, listing separately all the properties of the
conjugal partnership and the exclusive properties of each spouse.
2) Amounts advanced by the conjugal partnership in
payment of personal debts and obligations of either spouse shall be credited
to the conjugal partnership as an asset thereof.
3) Each spouse shall be reimbursed for the use of his or
her exclusive funds in the acquisition of property or for the value of his or
her exclusive property, the ownership of which has been vested by law in the
conjugal partnership.
4) The debts and obligations of the conjugal partnership
shall be paid out of the conjugal assets. In case of insufficiency of said
assets, the spouses shall be solidarily liable for the unpaid balance with
their separate properties, in accordance with the provisions of paragraph (2)
of Article 121.
5) Whatever remains of the exclusive properties of the
spouses shall thereafter be delivered to each of them.
6) Unless the owner had been indemnified from whatever
source, the loss or deterioration of movables used for the benefit of the
family, belonging to either spouse, even due to fortuitous event, shall be
paid to said spouse from the conjugal funds, if any.
7) The net remainder of the conjugal partnership
properties shall constitute the profits, which shall be divided equally
between husband and wife, unless a different proportion or division was
agreed upon in the marriage settlements or unless there has been a voluntary
waiver or forfeiture of such share as provided in this Code.
8) The presumptive legitimes of the common children
shall be delivered upon the partition in accordance with Article 51.
9) In the partition of the properties, the conjugal
dwelling and the lot on which it is situated shall, unless otherwise agreed
upon by the parties, be adjudicated to the spouse with whom the majority of
the common children choose to remain. Children below the age of seven years
are deemed to have chosen the mother, unless the court has decided otherwise.
In case there is no such majority, the court shall decide, taking into
consideration the best interests of said children.
{ Formula: Net remainder = Net Profits/2
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No such proof
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Proof
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In Articles 106, 115,
118, 119, 120, it may be proved whether the property belongs to the CPG or is
an exclusive property of the spouse
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