How is the marriage property divided in legal separation?
Net profits of the conjugal property are given to the spouse without fault.
The rule in legal separation is that the spouse at fault shall have no right to any share of the net profits earned by the couple’s common property during the marriage. His or her share of the net profits is forfeited in favor of the children or the innocent spouse.
What does net profits mean? What does the spouse at fault actually forfeit?
What are net profits?
Quiao was a case for legal separation filed by the wife against the husband. The spouses had no assets when they married in 1977. By the time of the legal separation, they had numerous valuable properties (land, several mills and a factory).
Quiaos had several assets at the time of separation.
Legal separation was granted in 2005, with the Trial Court finding that the husband was at fault. The husband, therefore, was held not entitled to any share of the net profits of the conjugal property.
The husband asked the Trial Court to clarify what net profits meant. The Trial Court ruled that, since the spouses had no assets when they married in 1977, this meant that all the assets inventoried in 2005 were deemed net profits to which the husband had forfeited his share.
The husband no longer had a slice of the pie
The husband appealed the case to the Supreme Court. The Supreme Court upheld the Trial Court.
Net Profit Computation under Absolute Community or Conjugal Partnership of Gains
(Conjugal partnership of gains governed marriages under the Civil Code. Absolute community has been the default setting for marriages since the Family Code came into effect in 1988.)
In absolute community, all the assets of the spouses are deemed conjugal property.
If the Quiao marriage were a regime of absolute community, net profits would be computed as follows:
(a) According to the trial court’s finding of facts, both husband and wife have no separate properties, thus, the remaining properties in the list above are all part of the absolute community. And its market value at the time of the dissolution of the absolute community constitutes the market value at dissolution.
(b) Thus, when the petitioner and the respondent finally were legally separated, all the properties which remained will be liable for the debts and obligations of the community. Such debts and obligations will be subtracted from the market value at dissolution.
Debt is deducted from the total assets.
(c) What remains after the debts and obligations have been paid from the total assets of the absolute community constitutes the net remainder or net asset. And from such net asset/remainder of the petitioner and respondent’s remaining properties, the market value at the time of marriage will be subtracted and the resulting totality constitutes the net profits.
(d) Since both husband and wife have no separate properties, and nothing would be returned to each of them, what will be divided equally between them is simply the net profits. However, in the Decision dated October 10, 2005, the trial court forfeited the half-share of the petitioner in favor of his children. Thus, if we use Article 102 in the instant case (which should not be the case), nothing is left to the petitioner since both parties entered into their marriage without bringing with them any property.
The Quiaos were married in 1977, when conjugal partnership of gains governed marriage property.
Net Profits Under the Conjugal Partnership of Gains
In a conjugal partnership of gains, husband and wife have his and her own property and debts. The law does not intend to effect a mixture or merger of those debts or properties between the spouses. It establishes a complete separation of capitals.
Instead, upon their marriage, the husband and the wife place in a common fund the fruits of their separate property and income. They divide equally the net gains or benefits obtained by either spouse during the marriage partnership.
In Quiao, the Supreme Court ruled that net profits in a conjugal partnership of gains would be computed as follows:
a An inventory of all the actual properties shall be made, separately listing the couple’s conjugal properties and their separate properties. In the instant case, the trial court found that the couple has no separate properties when they married. Rather, the trial court identified the following conjugal properties, to wit:
- coffee mill in Balongagan, Las Nieves, Agusan del Norte;
- coffee mill in Durian, Las Nieves, Agusan del Norte;
- corn mill in Casiklan, Las Nieves, Agusan del Norte;
- coffee mill in Esperanza, Agusan del Sur;
- a parcel of land with an area of 1,200 square meters located in Tungao, Butuan City;
- a parcel of agricultural land with an area of 5 hectares located in Manila de Bugabos, Butuan City;
- a parcel of land with an area of 84 square meters located in Tungao, Butuan City;
- Bashier Bon Factory located in Tungao, Butuan City.
All the gains are considered net profits.
b Ordinarily, the benefit received by a spouse from the conjugal partnership during the marriage is returned in equal amount to the assets of the conjugal partnership; and if the community is enriched at the expense of the separate properties of either spouse, a restitution of the value of such properties to their respective owners shall be made.
c Subsequently, the couple’s conjugal partnership shall pay the debts of the conjugal partnership; while the debts and obligation of each of the spouses shall be paid from their respective separate properties. But if the conjugal partnership is not sufficient to pay all its debts and obligations, the spouses with their separate properties shall be solidarily liable.
Both calculations result in the loss of property to the spouse at fault.
d Now, what remains of the separate or exclusive properties of the husband and of the wife shall be returned to each of them. In [Quiao], since it was already established by the trial court that the spouses have no separate properties, there is nothing to return to any of them. The listed properties above are considered part of the conjugal partnership. Thus, ordinarily, what remains in the above-listed properties should be divided equally between the spouses and/or their respective heirs. However, since the trial court found the petitioner the guilty party, his share from the net profits of the conjugal partnership is forfeited in favor of the common children, pursuant to Article 63(2) of the Family Code. Again, lest we be confused, like in the absolute community regime, nothing will be returned to the guilty party in the conjugal partnership regime, because there is no separate property which may be accounted for in the guilty party’s favor.
Conclusion
The husband was left without any property.
- There had been no assets at the start of the marriage; and,
- He was the guilty party entitled to no part of the net profits at the dissolution of the property regime.
It’s quite draconian, but this 2012 doctrine has not been overturned.
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Paano po if hindi pa po afford magpa annul or mag file ng legal separation, is there any other option po? Like going to brgy to settle and make a letter na wala na pong pakialaman? pwede po ba yan?
That would not be a legally enforceable agreement.
My son has a condo unit before marriage. In case of separation, is the wife entitled to a share of the property if sold?
This depends on the court’s ruling on the disposition of property upon legal separation. This means it depends on the merits of the case.
Married early because of pregnancy (college kami nuon, I was just 19). After 6-7 years of not living together, I found out that he was taking home some woman sa tinitirhan nyang bahay. I live with my kids sa parents house ko and yun pala dahilan bat ayaw nya kami mgsama sama. Their bahay-bahayan lasted for nearly a year and then may iba pang infidelity issues sa ibang woman. I cant rebuild the trust and we both decided to stop this and wait for divorce. For the time being na wala pang divorce gusto na sana namin ng legal separation. Wala kaming properties together pero may mga plano kami bumili separately. Ano po kayang pwede naming gawin. As of the moment ngssupport sya pero napakaliit para sa 2ng kids, we are about a year and a half separated. Please advise atty.
Sent an email.
Good morning atty, I have question po.. Kai po nga sawa ko nagkakalabuan napo dina po xa umuuwi ng bahay more a year napo and we don’t where he is staying po. Tanong ko lang po sana as a legal wife po ba pwed ko po ba syang habulin for my support wala po kaming anak, pero mga utang po namin ako po humaharap now like yong bahay po namin na malaki po ang arrears nya at may utang papo kami sa parents ko. Anu po ba mabuting gawin. Nag try napo ako ask ng support from him since ako napo humaharap ng utang sa bahay now kasi ayaw ko din mawala yong bahay nmin, e ayaw nya pong magbigay kahit onti po. At may motor papo pala kami atty na na acquire before but nakapangalan po sa Papa ko pero yong motor na yon nasa asawa ko po now at diko po alam if san napo kasi tnatago nya, pwede ko po ba yon makuha. Lastly po may lupa po sila noon nakasanla and then nung nagsasama papo kami kami po ang tumubos nun may karapatan po ba ako dun. Please guide me po.
Thank you very much!
Hi Arlene:
It seems like there will be some case assessment needed.
Try working with the PAO.
I just found out that my husband hired escort women for sexual services. We are in business together. Can I file foe legal separation? What will happen if I do? What do I need to file it? We have 2 children. We have been married for 22 years and are in business together.
We’ve written extensively about legal separation and other modes of separating or dissolving marriage in the Philippines.
https://lawyerphilippines.org/2017/04/03/legal-separation-in-the-philippines/
https://lawyerphilippines.org/2018/05/23/3-ways-to-legally-separate-philippine-marriages/
Send us an email if you’d like to discuss these further.
Good day po Atty. What is the best thing to do, I am legally married but no longer together for 8 years, now i want to purchase a property from a real estate and of course I do not want my husband to be a part of it. How can I make it possible? Please I need an advise. Thank you
Sent an email.
Good morning po pwed p po ba magfile ng legal separation khit senior n age 63 and 68
Dahil sa pauli ulit na pananakit
At nagbenta po cy ng property matapos ako papirmahin e di po ako nabigyan ng share dahil pera nya daw po un ginasyos sa property na un at wala daw ako share dun kahit singko
Sent an email.
Good day! Tanong ko lang po Atty, just in case na hiwalay na po ako sa asawa ko meron po ba akong makukuhang financial support mula sa kanya kung sakaling yung 3 naming anak edad 18, 16 at 4yrs old ay nasa akin lahat? Paano po? Ang property meron lang kame ay bahay. Siya lang po ang meron trabaho sa aming dalawa, permanent government employee po siya.
You will have a share in the property should you file a case.
How much that share is depends on the situation and property regime you are under.
Good day po Atty. Tanong ko po ,May karapatan po bang hatiin ng pngalawang asawa ng tatay ko ang property nmin?Since ang tatay ko po ay may mga anak pa po sa unang asawa 5 po kming anak Nya.Slamat po sa sa got.
Hi Edna:
I would need to know more about the situation to provide information.
In general, all legitimate, illegitimate, adopted children and their legal spouses are heirs.