General Provisions and Donations by Reason of Marriage

Question 1

What shall govern the property relations between the husband and wife?

Answer 1

Article 74 Family Code: The property relations between husband and wife shall be governed in the following order:

1. By marriage settlements executed before the marriage;
2. By the provisions of this Code; and
3. By the local customs.

Question 2

When may marriage settlements be executed?

Answer 2

Marriage settlements and any modification thereof shall be made before the marriage

Under Art 77 marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage.

Under Art 76, in order that any modification in the marriage settlements may be valid, it must be made before the celebration of the marriage.

Question 3

Requisites for the validity of a marriage settlement:

Answer 3

The requisites for the validity of a marriage settlement, or any modification thereof, are:
1. Executed before the marriage
2. Signed by the parties
3. Made in writing
(Article 76 and 77 FC)

Question 4

What property regimes can the contracting spouses agree upon in marriage settlements?

Answer 4

Under Art 75 FC future spouses may agree upon the following in marriage settlements:

1. Absolute community;
2. Conjugal partnership of gains;
3. Complete separation of property; or
4. Any other regime

Question 5

What shall be the property regime between the parties in the absence of a marriage settlement?

Answer 5

Under Art 75 of the Family Code, in the absence of a marriage settlement, the system of absolute community of property shall govern.

(However, if the marriage was celebrated prior to the effectivity of the Family Code, the automatic property regime shall be Conjugal Partnership of Gains [CGP]).

Question 6

What shall be the property regime when the marriage settlement executed by the parties is void?

Answer 6

Under Art 75, in case the marriage settlement is void, the system of absolute community of property shall govern.

Question 7

What does the Family Code refer to when it speaks of minors who may contract marriage?

Answer 7

The minors referred to by the Family Code when it speaks of minors who may contract marriage are minors with the age of at least 18 but below 21. At the time when the Family Code was promulgated on August 3, 1988, the age of majority was still 21 years old. In December 13, 1989, R.A. 6809 took effect, An Act Lowering the Age of Majority from Twenty-One to Eighteen.

Question 8

When shall a marriage settlement contract executed by the minor who may contract marriage (18 and above but below 21) be valid?

Answer 8

Under Article 78 in relation to Article 14 of the Family Code, Marriage settlements executed by minors who according to law may contract marriage shall only be valid when the following are made parties to the contract:

1. Father
2. Mother
3. Surviving parent or guardian; or
4. Persons having legal charge of them.

Question 9

When shall a marriage settlement executed by a person whom a civil interdiction was pronounced or who is subject to any other disability be valid?

Answer 9

Guardian appointed by a competent court is made party thereto.

Under Article 79 in order for a marriage settlement executed by a person whom a civil interdiction was pronounced or who is subject to any other disability shall be valid when the guardian appointed by a competent court is made a party in the marriage settlement.

Question 10

When shall Philippine laws not apply to the property relations of the spouses?

Answer 10

Art 80 provides that in the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence.

This rule shall not apply:

1. When both spouses are aliens; (**Article 15 NCC may not be related because property law is not covered under nationality principle)
2. With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and (note this is lex loci celebrationis) (see Article 17 NCC)
3. With respect to the extrinsic validity of contracts entered into the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity. (note this is lex rei sitae) (see Article 16 NCC)

Question 11

What laws are covered under the nationality principle?

Answer 11

Under Article 15 of the Civil Code the nationality principle covers laws relating to the following:

1. Family rights and duties;
2. Status;
3. Condition or legal capacity of persons

Question 12

Article 15 NCC:

Answer 12

Art 15 NCC: Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

Question 13

What shall happen to the marriage settlement if the marriage does not push through?

Answer 13

As a general rule, under Art 81 of the Family Code, marriage settlements shall be void or any contracts in consideration of a future of marriage shall be void if the marriage does not take place.

However, as an exception, the same provision provides that stipulations that do not depend upon the celebration of a marriage shall be valid.

Question 14

What are donations by reason of marriage?

Answer 14

Under Article 82 of the Family Code: Donations by reason of marriage are those:

1. Made before the celebration of marriage
2. In consideration of marriage
3. In favor of one or both of the future spouses

Question 15

What law governs donations by reason of marriage?

Answer 15

Under Article 83 the law that governs donations by reason of marriage is Title III of Book III of the Civil Code, insofar as they are not modified by the following articles.

Question 16

What is the maximum limit for donations between future spouses who agree upon a property regime that is not the absolute community of property?

Answer 16

One-fifth of their personal property.

Under Article 84, the future spouses cannot donate to each other in their marriage settlements more than one-fifth of their present property when they agree upon a property regime that is not the absolute community of property. The excess shall be considered void.

Question 17

What law shall govern the donations of future property between the future spouses?

Answer 17

Under Article 84, donations of future property shall be governed by the provisions on the testamentary succession and the formalities of the wills.

Question 18

Shall donations by reason of marriage of properties subject to encumbrances be valid?

Answer 18

Yes, donations by reason of marriage of properties subject to encumbrances shall be valid, as provided by Article 85 of the Family Code.

However, it shall have different effects on the following circumstances of foreclosure:

1. Property is sold for less than the debt which it secures: the donee shall not be liable for the deficiency.
2. Property is sold for more the value of the debt which it secures: the donee shall be entitled to the excess.

Question 19

When may the donation by reason of marriage be revoked?

Answer 19

Under Art 86 FC, donations by reason of marriage may be revoked on the ff grounds:

1. Marriage is not celebrated (except those under article 81 – donation is made in the marriage settlement);
2. When the marriage is judicially declared void ab initio (except those under article 81 – donation is made in the marriage settlement);
3. When the marriage takes place without the consent of the parents or guardian, as required by law;
4. When the marriage is annulled and the donee acted in bad faith;
5. Upon legal separation, the donee being the guilty spouse;
6. If there is a resolutory condition which is complied with
7. When the donee has committed an act of ingratitude as specified in the Civil Code on donations in general (see Article 765 Civil Code).

Question 20

Can spouses donate to each other?

Answer 20

No, spouses cannot donate to each other except for moderate gifts during special occasions. (Art. 87 FC)

Question 21

When shall the absolute community of property commence?

Answer 21

The absolute community of property between the spouses shall commence at the precise moment that the marriage is celebrated (Article 88, FC)

Question 22

Can the future spouses decide when they want the property regime of absolute community begin?

Answer 22

No, future spouses cannot provide that the absolute community property shall begin at another time. Under Article 88 of the Family Code, Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void.

Question 23

Can a spouse waive his or her interest in the absolute community of property?

Answer 23

No, a spouse cannot waive his or her interest in the absolute community of property. Under Article 89 of the Family Code, “No waiver of rights, interests, shares and effects of the absolute community of property during the marriage can be made except in case of judicial separation of property.”

Question 24

When can a spouse waive his or her right to the absolute community of property?

Answer 24

Under Article 89 of the Family Code, a spouse may not waive his or her right, interest, shares and effects of the absolute community of property except in case of judicial separation of property.

Question 25

What shall form part of the absolute community of property?

Answer 25

The community property shall consist of all the property owned by the spouses at the time the celebration of the marriage or acquired thereafter (Article 91).

Except those provided by the Chapter on Absolute Community of Property in the Family Code. (see Article 92)

Question 26

What are excluded from the absolute community of property as provided under Article 92 of the Family Code?

Answer 26

Under Article 92 of the Family Code, the following shall be excluded from the community property:

Property acquired during marriage by gratuitous title by either spouse and the fruits and income arising from the property unless the donor, testator, or granter expressly provided that it shall be part of the community property.

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

Property acquired during a former marriage with legitimate ascendants and its fruits and income of such property, if any.

Question 27

What is the presumption regarding the community property of the spouses?

Answer 27

The presumption regarding the community property of the spouses is that, under Article 93 of the Family Code, “Property acquired during the marriage is presumed to belong to the community, unless it is proved that it is one of those excluded therefrom.”