You and your spouse have separated. Is there a way to separate your properties?
There are different ways on how to separate your properties, but this will also depend on the circumstances concerning your marriage. Are you annulled? Legally separated? Or separated in fact? Do you have a pre-nuptial agreement?
This article is applicable only to spouses without a prenuptial agreement, and with absolute community or conjugal partnership as their property regime.
Separation in fact
Under the Family Code, separation of properties for spouses separated in fact is allowed by filing in the appropriate court of a petition for the separation of property, as long as “at the time of the petition, the spouses have been separated in fact for at least one year and reconciliation is highly improbable (FC Art 135 (6)).
Spouses may also voluntarily separate their properties under Article 136 of the Family Code. Here, the court will not consider the reasons on why the spouses opted for the voluntary dissolution of the property. The Family Code requires judicial separation of properties in order to protect the interest of the third persons, especially creditors who have an interest in the spouses’ property.
Note however that properties cannot be transferred as the Family Code prohibits donation between spouses, and the Civil Code prohibits selling of property between spouses. Those instances will render the transfer void.
Annulment
Separation of properties is the effect of the declaration of nullity of marriage. The property regime of the spouses will be dissolved according to the property regime, absolute community or conjugal partnership. Note however that this needs a court order for the division of properties
Void Marriages
For mariages declared void ab initio by the court, the separation of properties of the spouses concerned, will be governed by Articles 147 and 148 of the Family Code which provides the rules on co-ownership. Thus, neither absolute community or conjugal partnership applies in the property relations of marriages void ab initio. This also needs a court order for the division of properties.
Legal Separation
Under Article 63 of the Family Code, the effect of the judicial decree of Legal Separation is the dissolution of the absolute community or conjugal partnership of the spouses. Note however that the offending spouse has no right in the net profits earned by the absolute community or conjugal partnership. This also needs a court order for the division of properties.
After the separation of the properties, each spouse acquires full ownership on their respective properties. They may freely alienate or sell their properties without the consent of each other. Moreover, they are now allowed to sell land to each other.
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