Dear PAO,
My parents were married for 20 years and they amassed a significant amount of assets. My mother died last year and due to personal reasons, my father stopped talking to us since. Because of this, we have not had the chance to settle her estate yet. Just few a months ago, we got wind of my father’s marriage plans with his new girlfriend, and my siblings and I worry that the properties jointly acquired by our parents, or at least part of it, could fall into the hands of his girlfriend. Could it possibly happen?
Pen
Dear Pen,
Our laws recognize three kinds of property relations governing marriages, namely Absolute Community of Property (ACP), Conjugal Partnership of Gains (CPG), and Complete Separation of Properties (CSP).
Upon the effectivity of Executive Order 209, otherwise known as the Family Code of the Philippines, on Aug. 3, 1988, in the absence of marriage settlement between the parties, or in case of subsequent declaration of nullity of the property regime agreed upon, the system of absolute community of property shall govern the property relations between the spouses. (Article 75, Family Code of the Philippines)
As an exception to the foregoing, in case of termination of marriage by reason of death and the surviving spouse contracts another marriage without first liquidating the property regime of the prior marriage, Articles 103 and 130 of the Family Code impose upon the subsequent marriage a mandatory regime of complete separation of property. This is due to the duty of the surviving spouse to liquidate, either judicially or extra-judicially, the community property or conjugal partnership of the prior marriage, whichever is applicable, within one year from the death of the deceased spouse. Should the surviving spouse contract a subsequent marriage without complying with these requirements, the subsequent marriage will be automatically and mandatorily be governed by a regime of complete separation of property. (Articles 103 and 130, Ibid.)
In the same vein, Article 92 of the same Code enumerates the properties of the spouses which are excluded from the absolute community, and shall remain exclusively owned by each spouse, including:
“Article 92. The following shall be excluded from the community property: xxx
"(1) 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.”
"In Heirs of the Late Apolinario Caburnay, et al. vs. Heirs of Teodulo Sison, et al., GR 230934, Dec. 2, 2020, the Supreme Court, speaking through Associate Justice Alfredo Benjamin S. Caguioa, elucidated that “[t]he purpose of the exclusion is to protect the rights and interests of the legitimate descendants by the first marriage over the property and to ensure that the children born of the prior marriage are not deprived of their share in the properties of their parents.”
In your case, assuming that your father has not initiated the liquidation of the joint property regime belonging to him and your deceased mother, then his subsequent marriage to his girlfriend shall automatically be governed by the regime of complete separation of property. Hence, your rights to the properties of your parents will be protected as it will not form part of the joint property regime of your father and his new wife.
We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
