Separation of Property of the Spouses and Administration of Common Property by One Spouse During the Marriage Flashcards
When will a separation of property of the spouses occur?
(1) When it is expressly declared in the marriage settlement;
(2) When there is a judicial order for separation of property.
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 sufficient cause.
When may the judicial order for separation of property be voluntary?
When the spouses jointly file a verified petition with the court.
Art 135: The spouses may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties.
What are sufficient causes for a judicial separation of property?
Under Art 135: Any of the following shall be considered sufficient cause for judicial separation of property:
(1) The spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;
(2) The spouse of the petitioner has been judicially declared an absentee;
(3) The loss of parental authority of the spouse of petitioner has been decreed by the court;
(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;
(5) That the spouse granted the power of administration in the marriage settlements has abused that power; and
(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;
What is the effect of a judicial decree of separation of property?
Art 137. Once the separation of property has been decreed, the absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code.
While the petition for judicial separation of property is pending, where shall the spouses and the children get support?
From the absolute community or the conjugal partnership shall pay for the spouses and the children.
Art 137 par. 2: During the pendency of the proceedings for separation property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children.
What is the ministerial duty that accompanies the judicial decree of separation of property?
Recording in the proper local civil registries and registries of property.
Art. 139: The petition for separation of property and the final judgment granting the same shall e recorded in the proper local civil registries and registries of property.
What is the limitation upon the judicial decree of separation of property?
Art 140. The separation of property shall not prejudice the rights previously acquired by creditors.
What are the circumstances whereby the spouses may revive the absolute community or conjugal partnership?
The circumstances where the spouses may revive the absolute community or conjugal partnership are:
(1) termination of civil interdiction;
(2) reappearance of absentee spouse;
(3) abuse of sole administrator powers have ceased (by judicial authorization);
(4) abandoning spouse returns and resumes common life;
(5) judicial restoration of parental authority;
(6) reconciliation of spouses separated in fact;
(7) agreement to revive former property after voluntary dissolution [No voluntary separation of property may thereafter be granted].
What are the circumstances where the court may transfer the administration of all classes of exclusive property from one spouse to the other?
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 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.
To whom shall the court transfer the administration of the exclusive property if the other spouse is not qualified due to incompetence, conflict of interest, or any other cause?
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 (Art 142 par 2 FC).
