A simpler way to divide conjugal property

by | Nov 12, 2017 | Family Law, Marriage Property

A couple sitting down and discussing how to divide marriage property.

You can separate marriage property without going through the acrimonious process of legal separation.

Legal separation can be a clumsy, acrimonious way to end marriage relations. It falls short of actual divorce, and it is a problematic process even as a way to divide conjugal properties between husband and wife.

Because legal separation requires that one spouse (and only one, not both) must be at fault for it to be granted, legal separation is punitive, protracted, usually contested, and quite draconian in its consequences.

But there is a simpler way for husband and wife to divide their properties. The spouses can, without going through the bitter battle of legal separation, just file a Petition for the division of their conjugal property. And, especially if they file this Petition jointly, the court process can go a lot more smoothly.

The effect of this judicial process is a complete separation of property.

What is conjugal property?

Let us first define conjugal property. What does conjugal property include?

In the absence of a prenuptial agreement, Philippine law sets the property relations between spouses. If the spouses choose no other property regime before they marry, then theirs will be an absolute community of property.[1]

A house with a view of the entrance and the carport. Houses usually are part of the marriage property.

Houses usually form part of conjugal property.

Under the absolute community of property, husband and wife become joint owners of all the properties of the marriage. Whatever property each spouse brought into the marriage, and all properties acquired during the marriage (with some exceptions) form the common mass of the conjugal property.

And, if the couple’s community of property is legally dissolved, this common mass is divided between the spouses. It is divided equally or in the proportion, the parties have established, irrespective of the value each one may have originally owned.

A rack of clothes hanging from a metal rod.

Clothes are excluded from marriage property as it is for the use of only one spouse.

The only properties exempted from the absolute community are the following:

  1. Property acquired during the marriage by either spouse through inheritance, gift, or donation, and the fruits as well as the income of that property, unless the giver specified that the property 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.[1]

How is property divided under legal separation?

I’ve written on this before. It’s quite harsh. To summarize:

For legal separation to be granted, there must be one guilty spouse. And the rule is that the guilty spouse has no right to the net profits of the conjugal property. The guilty spouse’s share of the net profits is forfeited in favor of the children or the innocent spouse.

A stock market screen symbolizes the increase in net value of conjugal property from its beginning to when the marriage is dissolved.

Shares form part of conjugal property.

The net profits of the conjugal property are defined as the increase between the market value of that conjugal property at the time of the marriage and its market value at the time of dissolution.

This is significant.

It means that, if the spouses had no assets when they married young, and they built up their assets over the decades since, then the guilty spouse will have no share in any of these assets because they are all classified as forfeited net profits.

Moving out of a house to symbolize the splitting up of a family.

Net profits are awarded to the innocent spouse.

It makes the entire exercise a winner take all contest which discourages compromise. For this reason, among others, legal separation is often disputed, protracted, punitive, and quite draconian.

Nonetheless, legal separation is what people often think of when they wish their property to part ways from the property of their spouse. But there is another way, and that is through a judicial separation of property.

How is legal separation different from judicial separation of property?

The two are different remedies based on different parts of the Family Code.[3]

Under legal separation, aside from the dissolution of the conjugal property, the spouses become entitled to live separately from each other and their obligation of mutual support ceases.

Law books open to the passage on the dissolution of marriage and marriage property.

The law defines legal separation and judicial separation of property differently.

In contrast, judicial separation of property is concerned primarily with splitting the conjugal property. The other marital obligations are unaffected. In fact, under the judicial separation of property, the spouses themselves are not necessarily separated; they may wish to simply separate their property.

What are the grounds for judicial separation of property?

Judicial separation of property can be either voluntary or for sufficient cause.

Voluntary separation of property involves both the spouses filing a joint Petition to separate their common properties. This means that they agreed to divide their property between them. Their common agreement is ground enough for the separation. They then submit their proposal to the Court for how to divide the property.

A pen beside a checkbox labeled agree symbolizing a joint filing.

Both spouses can file or one can file for sufficient cause.

On the other hand, in separation of property for sufficient cause, just one of the spouses can file for judicial separation of property on the basis on sufficient cause.

The following are sufficient cause for judicial separation of property:

(1) That the spouse of the petitioner has been sentenced to a penalty which carries with it civil interdiction;

(2) That the spouse of the petitioner has been judicially declared an absentee;

(3) That 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.

In the cases provided for in Numbers (1), (2) and (3), the presentation of the final judgment against the guilty or absent spouse is enough basis to grant the petition.[4]

A key in an unlocked door to indicate a spouse leaving the conjugal home.

One of the grounds is if the spouses have been separated for a year with reconciliation unlikely.

As an aside, (6) is of significant interest because, as with voluntary separation, it offers the spouses a de facto no-fault separation of property.

What is the process in Court?

A sworn Petition, either jointly or singly, is filed with the Family Court.[5]

All creditors of the marriage, as well as the personal creditors of the spouses, must be listed in the petition and notified that it was filed in court. The court shall take measures to protect the creditors and other persons with a pecuniary interest in the marital property.[6]

The absolute community or the conjugal partnership shall pay for the support of the spouses and their children while the case is pending.[7]

The Petition will be heard by the Family Court.

If the Petition is voluntary (i.e. jointly filed by the spouses), it need not even give the spouses’ reason for the separation of property because the agreement of the spouses is enough. But if the reason given is found to be against public policy, the court must reject the agreement.[8]

The Petition to separate the property may even propose exactly how the properties are to be separated. If this proposal is not contrary to law and public policy, it shall be granted by the court. The agreement for the division of the community property must be equal unless a different division has been agreed upon in the prenuptial agreement or unless a waiver of this share is allowed by the court.[9]

Files on shelving racks to illustrate the need for a thorough and complete inventory.

Get your files in order as you’ll need a complete inventory of property.

Once the separation of property has been decreed, the marriage properties will be liquidated in accordance with the Family Code.[10] The Family Code describes the process of liquidating the conjugal properties thus:

(1) An inventory should be prepared, listing separately all the conjugal properties of the marriage and the exclusive properties of each spouse.

(2) The debts and obligations of the marriage shall be paid out of its conjugal property. In case these assets are insufficient, the spouses shall each be solidarily liable for the unpaid balance.

(3) Whatever remains of the exclusive properties of the spouses shall then be delivered to each of them.

Credit card as a representation of common debt.

After the common debts are paid, the property is then divided between the spouses.

(4) The net remainder of the conjugal properties are its net assets. These will 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.
[Involuntary forfeiture of the net profits by a guilty spouse is not provided for under judicial separation of property. It is a specific consequence only in cases of legal separation or of bigamous marriages in bad faith.][11]

(5) The presumptive legitimes of the common children shall be delivered upon partition. [M. Sta. Maria (2010) is of the opinion that this is an optional provision which need not be complied with.]

A dining room to illustrate family meals.

The family house goes to the spouse with the custody of most of the minor children.

(6) Unless otherwise agreed upon by the parties 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.

The petition and the final judgment granting it shall both be recorded in the proper local civil registries and registries of property.[12]

What are the effects of judicial separation of property?

After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply.[13]

Philippine money to show that after the court proceedings, each spouse will then control his own estate.

Each spouse controls his own estate after the court proceedings.

This means that each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without the need for the consent of the other. To each spouse shall belong all earnings from his or her profession, business or industry and all fruits, natural, industrial or civil, due or received during the marriage from his or her separate property.[14]

Both spouses shall bear the subsequent family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties.

Fruits at the grocery as an example of family expenses to be borne by both spouses.

However, expenses of the family shall be borne in proportion to their income or the market value of their estate.

However, the liabilities of the spouses to creditors for family expenses shall be solidary and the separation of property shall not prejudice the rights previously acquired by creditors.[15]

What does this separation of property mean for the inheritance of their children?

By one interpretation of the Family Code, upon judicial separation of property, the value of the mandatory inheritance (known as the legitime) of all common children shall be delivered to them in cash, property or sound securities unless the parties have already provided for such matters by a court approved mutual agreement.

A filipino boy at school. Children are compulsory heirs.

In some interpretations, presumptive legitimes are given to children as an advance on their eventual inheritances.

The value of the presumptive legitimes is computed as of the date of the final judgment of the trial court. The children, their guardian, or the trustee of their property may ask for the enforcement of the judgment.

This delivery of the presumptive legitimes shall not prejudice the ultimate successional rights of the children upon the death of either parent. However, the value of the properties already received shall be considered as advances on their legitime.[16]

Candles to symbolize the passing of life.

However, others believe that presumptive legitimes need not be given.

[Note however that Professor Melencio S. Sta. Maria, in his book on Persons and Family Relations Law (2010), is of the opinion that these provisions on legitime are optional and need not be complied with.]

Can the marital property regime be revived after a judicial separation of property?

What if, years later, the spouses want to join their property in common again? Can they revive the dissolved property regime?

Yes. The spouses may file a motion in court for a decree reviving the property regime that existed before the separation of property in any of the following instances:

(1) When the civil interdiction terminates;

(2) When the absentee spouse reappears;

Hearts to illustrate reconciliation

The properties can be joined again when an absentee spouse reappears.

(3) When the court, being satisfied that the spouse granted the power of administration in the marriage settlements will not again abuse that power, authorizes the resumption of said administration;

(4) When the spouse who has left the conjugal home without a decree of legal separation resumes common life with the other;

(5) When parental authority is judicially restored to the spouse previously deprived thereof;

(6) When the spouses who have separated in fact for at least one year, reconcile and resume common life;

A place setting for two, showing a reconciliation. When spouses reconcile and live together again, they can decide to resume their previous common property regime.

When spouses reconcile, they can revive their common property regime.

(7) When, after voluntary dissolution of the conjugal community has been judicially decreed, the spouses jointly petition for the revival of the former property regime.

If the separation of property was voluntary, it can only be granted once. This means that if the spouses do decide to revive their marital property regime, they afterwards will not be allowed to voluntarily separate it again.[17]

For one reason or another, married couples may want to end their community of property. But they can find this difficult to do because Philippine law prohibits divorce, and because the conditions for legal separation are so onerous. Judicial separation of property offers an alternative for them to consider.


Atty. Francesco C. Britanico


[1] Article 75 of the Family Code of the Philippines
[2] Article 92
[3] Legal separation is found in Articles 55 to 67 while judicial separation of property is found in Articles 134 to 141
[4] Article 135
[5] Article 136
[6] Article 136
[7] Article 137
[8] Sta. Maria, M.S., 2010. Persons and Family Relations Law. 5th ed. Manila: Rex, p. 564
[9] Ibid.
[10] Articles 137, 102, and 129
[11] Articles 63 and 43(2)
[12] Article 139
[13] Article 138
[14] Article 145
[15] Articles 146 and 140
[16] Article 51
[17] Article 141


  1. Mervin d.indino


  2. marites s, ordonio

    very helpful… thanks!

  3. Constantino Arias

    Simple and yet very informative.

  4. Vilma borja

    Thank u for the info.

  5. Dinna

    What will happened to monthly income of the husband? Is d wife still have the rights for monthly support?

    • Lawyers in the Philippines


      There is no alimony in Philippine law.

      However, children are entitled to child support.

  6. Tess

    Hi, my exhusband is willing to give the property to me. Court just granted our annulment.

    What would be the process if he is just willing to give the property?

    • Lawyers in the Philippines

      Sent you an email.

  7. Alex

    Hello, this article is very helpful.
    If the first step is to submit a sworn petition, may I know if you could share a template for us to write a joint petition?

    My husband has an illegitimate child and he hasn’t been working for 6 years.
    Through my efforts, I managed to acquire a property which I am not willing to share with his illegitimate child by the time that one of us has passed.

    Thank you for all your help.

    • Lawyers in the Philippines

      Dear Alex:

      You will need a lawyer for this as this is a court case.

      You will also need to secure the cooperation of your husband or ask your lawyer to negotiate on your behalf.

  8. Dennis


    Is there a good atty that you can recommend that is also not ultra expensive. My estranged wife is in the US and I live in Canada (we’re divorced in North America) and looking to file the joint petition

    • Lawyers in the Philippines

      Sent an email.

      • Che

        Can you recommend a good lawyer for this?

      • Lawyers in the Philippines

        Sent an email.

  9. Juan

    Simple and very informative.

    Any law firm to recommend in Alabang area.

    • Lawyers in the Philippines

      Sent an email.

    • Fidel

      Simply explained but very informative. Thanks.

  10. Paulita

    Hello Atty,
    whats the best thing to do I am planning to buy a property back home since i am a permanent residents here in Canada.
    I am a single mom and sponsored my kids which i had common law partner back 2004.Then i got married before i work abroad,
    i was 4 years away that time we don’t have kids of our own.We both had kids in our previous relationship.
    When i came here in Canada our relationship became difficult i had him but he was not helping to me his kids lived with him and my kids together.
    In that way I am supporting them.Then i got tired of that situation later.
    2013,I filed a divorced here and was granted.We both had no communication since that time,I knew he had live in partner there in Philippines.
    We both let go each other and i have a fiance here and got engaged last April this year.
    We are planning to buy a property back home,but I’m worried my ex-husband would get some idea to chased for my future plan like buying a property.
    What’s the best thing to do about this situation attorney?
    Please help me about this.Hope to hear from you

    Thank you and God Bless

    • Lawyers in the Philippines

      Hi Paulita:

      If you divorced a Filipino while you are Filipino, the divorce is invalid.

      Your first husband will have rights to any Philippine property you buy.

      • Rolf

        Interesting answer. Does this mean that a foreign man marrying a filipina (her first marriage) in the Philippines and later divorces her abroad after she is become a foreign citizen, they will both have equal rights to any properties any of us buy in Philippines, as long as petition for recognition in Philippines is not filed?

      • Atty. Francesco Britancio

        Sent an email.

  11. Liza

    Hi. Please provide the requirements and list of lawyers for this case. Thank you.

    • Lawyers in the Philippines

      Sent an email.

      • Andreia

        Hi Attorney,

        Your article is very helpful. Please provide the requirements and list of lawyers for this case. Thank you.

      • Atty. Francesco Britanico

        Sent an email .

  12. RS

    Hi! Is conjugal property like, house and lot, and car be divided equally? How it will be divided when the property was bought by one spouse during their marriage years? The one partner who bought it can take it all?

    • Atty. Francesco Britanico

      Hi RS:

      The type of marriage regime dictates how property was split.

      In addition, the kind of property such as whether it was exclusive or not, will also affect how the property is split.

  13. Chayenne

    Thank you very useful . Any law firm recommendation in Pampanga area?

    • Atty. Francesco Britanico

      I sent an email.

  14. CB

    kindly email me for pasig area. big thanks!

    • Atty. Francesco Britanico

      Sent an email.

  15. Chris


    Given that the Judicial Separation of Property has been granted by the court (Voluntary petition by both spouses)

    What will happen if one of the spouses purchase new properties moving forward. Will it still be conjugal? Or can they set an agreement that future property purchases will no longer be conjugal?


    • Atty. Francesco Britanico

      Hi Chris:

      In Judicial Separation of property, ownership of properties in the past and future is split.

      However, note that unless the marriage is dissolved or there are other court decisions (disinheritance, etc.), the spouse is still a legal heir.

  16. Dona

    I’m a filipina soon to be canadian citizen and my husband is a canadian citizen(foreigner) we get married here in Canada. I’m going to file for divorce next year here in Canada because of cheating/adultery reasons. I have a property that I acquired before marriage. And that property is actually for my mom as I promise to her. But this property is not registered on her name or my name. Meaning the deed of seal of the property was name to my aunt. Since that house was build my aunt is the one who takes care of that house..my husband is a permanent residents of the Philippines now because he was married to me. and he can renew his PR once its expired. He doesn’t have income in philippines as he’s not yet a citizen.. my husband wants to file a claim for that property.. we live in that house for a total of almost 4 months..
    Does my husband has the right for that property? Please I need your help. We don’t have kids..

    Thank you
    Dona b..

    • Atty. Francesco Britanico

      Hi Dona:

      If your aunt’s name is on the title, she is the owner of the property.

      Your husband has no claim on it.



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