Section 5: Dissolution of Absolute Community Regime

Article 100. The separation in fact between husband and wife shall not affect the regime of absolute community except that:

(1)       The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported;

(2)       When the consent of one spouse to any transaction of the other is

required by law, judicial authorization shall be obtained in a summary proceeding;

(3)       In the absence of sufficient community property, the separate property of both spouses shall be solidarily liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share.

(178a)

The Article refers to a separation de facto. In the proper case there can be:

(a)         loss of support;

(b)         judicial authorization instead of marital consent;

(c)         subsidiary solidary liability of the separate property;

(d)        judicial authority to administer or encumber the separate property (including fruits

and proceeds) of the other spouse.

Spouses Ricky and Anita Wong, et al. vs.

IAC, et al.

G.R. No. 70082, August 19, 1991

Facts:

Romarico and Katrina are married. They have three children, but they have been living separately from each other most of the time. During the marriage, Romarico acquired a lot consisting of 1,787  square meters. In 1972, while in Hong Kong, Katrina entered into a contract with Anita Wong, whereby she consigned to her pieces of jewelry worth P321,830.95. When she failed to return the jewelries, Anita demanded the payment where Katrina issued a check for P55,000.00. When it bounced, she was sued criminally, but since the obligation was purely civil in nature, a suit for collection of sum of money was filed against her. Judgment was rendered against Katrina. When it became final and executory, the parcel of land was levied upon and sold at a public auction.

Issues:

(1) Whether or not the property is conjugal or not;

(2) Whether the property is liable for the indebtedness of Katrina.

Held:

(1) Having been acquired during the marriage, the property is presumed to belong to the conjugal partnership (Cuenca vs. Cuenca, 168 SCRA 335), even though Romarico and Katrina had been living separately. (Flores vs. Escudero, 92 Phil. 786).

The presumption of the conjugal nature of the properties subsists in the absence of clear, satisfactory, and convincing evidence to overcome said presumption or to prove that the properties are exclusively owned by Romarico. (Ahern vs. Julian, 39 Phil. 607). While there is proof that Romarico acquired the properties with money he had borrowed from an officemate, it is unclear where he obtained the money to repay the loan. If he paid it out of his salaries, then the money is part of the conjugal assets and not exclusively his. Proof on this matter is of paramount importance considering that in the determination of the nature of a property acquired by a person during coverture, the controlling factor is the source of the money utilized in the purchase.

(2) The conjugal nature of the properties notwithstanding, Katrina’s indebtedness may not be paid for with the same since her obligation was not shown by the petitioners to be one of the charges against the conjugal partnership. (Lacson vs. Diaz, 14 SCRA 183). In addition to the fact that her rights over the properties are merely inchoate prior to the liquidation of the conjugal partnership, the consent of her husband and her authority to incur such indebtedness had not been alleged in the complaint and proven at the trial. (Manaois-Salonga vs. Natividad, 107 Phil. 268). Furthermore, under the Civil Code (before the effectivity of the Family Code on August 3, 1988), a wife may bind the conjugal partnership only when she purchases things necessary for the support of the family or when she borrows money for the purpose of purchasing things necessary for the support of the family if the husband fails to deliver the proper sum; when the administration of the conjugal partnership is transferred to the wife by the courts or by the husband, and when the wife gives moderate donations for charity. Having failed to establish that any of these circumstances occurred, the Wongs may not bind the conjugal assets to answer for Katrina’s personal obligations to them.

Sources: 
Family Code of the Philippines by Albano