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77

74: The property relations between husband and wife shall be governed in the following order 1. by marriage settlements executed before the marriage

2. by provisions of this Code; and 3. 3. By the local customs

75: The future spouses may, in the marriage settlements, agree upon the regime of absolute community of property, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of marriage settlement, or when the regime or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern.

76: In order that any modification, in the marriage settlements may be valid, it must be made before the celebration of marriage, subject to the provisions Article 66, 67, 128, 135 and 136.

77: The marriage settlements and nay modification thereof shall be in writing, signed by the parties, and executed before the celebration of marriage. They shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of properties .

• Property relations shall be governed in the following order o 1. By marriage settlements executed before the marriage o 2. By provisions of this Code

o 3. By local customs

• Spouses may agree upon the regime of:

o Absolute community of property ! property acquired during marriage except gratuitous tile

o Conjugal partnership of gains ! common funds of the fruits and income from separate properties

o Complete separation of property

• In the ABSENCE OF ANY MARRIAGE SETTLEMENT or if it is VOID o Absolute community of property shall take effect

• Modification of marriage settlements:

o 1. Must be before the celebration of marriage

o 2. Art. 66 and 67 ! effects of the legal separation decree and upon reconciliation (SC AM 02-11-11) [that spouses can revert to OR adopt a new property regime ! but according to Atty. Sta Maria, this should not be followed and is an exercise of judicial legislation).

o 3. Article 128 ! effects of abandonment which is a ground for a judicial decree of separation of property)

o 4. Article 135 and 136 ! grounds for judicial separation of property (must be decreed by the court for the same)

• Marriage settlement/pre-nuptial agreement o Mandatory for VALIDITY

o Oral agreement is VOID and cannot be ratified or be objected upon. o Done during the time other than the celebration of marriage is VOID

• Property regime in other countries valid ! as long as they are not contrary to law, public policy, morals and etc.

• “Mixed Up Property regime” is possible = Valid • Combination:

o Death + No Liquidation = Complete separation of property

o Death + With Liquidation + No Marriage Settlement/Void = Absolute community of property

o Death + With Liquidation + Marriage Settlement (CJP) = Conjugal property of gains • Marriage settlements or modification

o 1. Must be in writing o 2. Signed by the parties

o 3. Executed before the celebration o 4. Shall not prejudice third persons

! Exception: if they are registered in the local civil registry where the marriage is contract is recorded as well as in the property registries of property, therefore third persons may be prejudiced.

• Prejudice to third parties

o To bind them, the register to the local civil registry o If redounded to the benefit of the family

! Debtor spouse ! in case of default, the absolute community of property shall be liable BUT it shall be considered advances to be deducted upon liquidation of the ACP.

• What if the spouses execute a marriage settlement that they do not ACP, but also failed to specify any other property regime? Local customs shall apply given that such customs are not contrary to public law or policy (Art. 11/12 of Civil Code) and such can be proven in court or existent. Article 78 A minor who according to law may contract marriage may also execute his or her marriage settlements, but

they shall be valid only if the persons designated in Article 14 to give consent to the marriage are made parties to the agreement, subject to the provisions of Title IX of this Code.

• No longer applicable

• Only 18 years old above can contract marriage/marriage settlement

Article 79 Article 79. For the validity of any marriage settlements executed by a person upon whom a sentence of civil interdiction has been pronounced or who is subject to any other disability, it shall be indispensable for the guardian appointed by a competent court to be made a party thereto. Sentenced Civil Interdiction – required consent from guardian

Article 80 In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence.

This rule shall not apply:

1) Where both spouses are aliens;

2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and

3) With respect to the extrinsic validity of contracts entered into the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity

• Marriage settlements shall be governed by Philippine Laws o except when:

! 1. both spouses are aliens

! 2. property not situated in the Philippines and are executed therein ! 3. executed in the Philippines but property in a foreign country • Real Property ! Article 16 of Civil Code

Article 81 Everything stipulated in the settlements or contracts referred to in the preceding articles in consideration of a future marriage, including donations between the prospective spouses made therein, shall be rendered void if the marriage does not take place. However, stipulations that do not depend upon the celebration of the marriage shall be valid.

• Stipulations in Marriage Settlement ! Void if marriage did not take place o must be in consideration of marriage

• Those stipulations not dependent upon the marriage ! VALID. Chapter 7: Donations by Reason of Marriage

Article 82, 83, 84 Article 82. Donations by reason of marriage are those which are made before its celebration, in consideration of the same, and in favor of one or both of the future spouses. (126)

Article 83. These donations are governed by the rules on ordinary donations established in Title III of Book III of the Civil Code, insofar as they are not modified by the following Articles. (127a)

Article 84. If the future spouses agree upon a regime other than the absolute community of property, they cannot donate to each other in their marriage settlements more than one-fifth of their present property. Any excess shall be considered void.

Donations of future property shall be governed by the provisions on testamentary succession and the formalities of wills.

• Donations by reason of marriage o made before marriage o in consideration of the same

o in favor of one or both the future spouses

• Donations by reason of marriage are governed by the rules on ordinary donations o Title III, Book III of Civil Code

o EXCEPT when they are modified by the following articles • If spouses agree upon a regime other than ACP

o they cannot donate to each other in their settlement more than 1/5 of their present property

o EXCESS SHALL BE VOID

• Donation + Property regime not ACP + up to 1/5 = Valid • Donation + Property regime not ACP + >1/5 = Void

• Donations of future property shall be governed by the provisions on testamentary succession and formalities of will

• Donations are without onerous condition • Donations Propter Nuptias

o could be subject to reduction for inofficiousness of donor upon his/her death, if they should infringe the legitime of a forced heir

o must be made prior to the celebration • Exclusions:

o 1. made after the celebration

o 2. made in favor of the future spouse not in consideration of marriage

o 3. granted to persons other than spouses even though they may be founded on the marriage

• DPN can be contained in a marriage settlement

o Governed by rules on regular donations Book III Title III of Civil Code

! 1. must be accepted by the donee (personally and/or special power/agent) ! 2. must be within the lifetime of donee/donor

! 3. may be ORAL or WRITTEN

! 3.a Oral ! movable; must be delivered simultaneously and must not exceed P5,000

! 3.b Written ! immovable, must be in a public document (notarized, deed of donation), for a movable exceeding P5,0000

o handwritten

! if not handwritten ! must be attested by at least 3 credible witnesses • Donations to a would be spouse + ACP as property regime = USELESS

o except:

! on personal properties except jewelry ! gratuitous title and income thereof

! acquired before the marriage who has legitimate descendants • Requisites of donation between Would Be Spouses

o 1. valid marriage settlement

o 2. stipulated property regime other than ACP o 3. must not be more than 1/5 of the present property o 4. must be accepted by the would-be spouse o 5. comply with Title 3 Book 3 of Civil Code

• 1/5 limitation not applicable to “separate deed” not included in the M.S. o Violates spirit of the law

o undue influence between spouses

• but there is a presumption of good faith when giving donations

Article 85 Donations by reason of marriage of property subject to encumbrances shall be valid.

In case of foreclosure of the encumbrance and the property is sold for less than the total amount of the obligation secured, the donee shall not be liable for the defi ciency. If the property is sold for more than the total amount of said obligation, the donee shall be entitled to the excess.

• DNP subject to encumbrances shall be void

• In case of foreclosure of the encumbrance and the property is sold for less than the total amount the obligation secured, donee SHALL NOT BE LIABLE

• If more than the obligation, donee SHALL BE ENTITLED TO THE EXCESS o donee is not the debtor, not even a solidary debtor

Article 86 DNP may be revoked by the donor in the following cases:

1. if marriage is not celebrated or declared void ab initio except donations made in a marriage settlement governed by Article 81

2. when the marriage takes place without consent of parents/guardians 3. when marriage is annulled and the donee acted in bad faith

4. upon legal separation, donee being the guilty spouse

5. if with resolutory condition, and the condition is complied with

6. when the donee has committed an act of ingratitude as specified in Civil Code on donations in general • Generally, all actions whose period are not fixed must be brought within FIVE YEARS after the

time of the right of action accrues

o HOWEVER, the period within which to declare the donation void does not prescribe for marriage settlements

• 5 conditions where a judicial declaration of nullity is necessary:

o 1. if subsequent marriage (under art. 40 in relation to 52 and 53), donee-spouse contracted the subsequent marriage in bad faith ! REVOKED by OPERATION OF LAW

o 2. under Art 41, when both are in bad faith in contracting a subsequent marriage after obtaining a judicial declaration of presumptive death. Art 44 makes the marriage void ab initio ! SHALL BE REVOKED BY OPERATION OF LAW

o 3. Void Marriages not under Art. 40 (in rel. 52 AND 53) and 44, MAY BE REVOKED o 4. Bigamous Marriages Scenario:

! if marriage is void, X (innocent) donated to A (married before) ! donation MAY BE REVOKED

! if marriage is void, A (married) donated to X (innocent) + guilty of adultery or concubinage ! VOID

! if marriage is void, A (married) donated to X (innocent) + if living together (common-law) ! VOID under Article 87

• REVOKED BY OPERATION OF LAW

o 1. Under Marriage Settlement, marriage did not take place (Art. 81) o 2. Art. 40 in rel. to 54 and 53 (with bad faith)

o 3. Art. 41 and 44 (both in bad faith) o 4. Art. 50, in rel. to 43 and 45 (bad faith) o 5. Art. 55 (8) if guilty of concubinage or adultery • MAY BE REVOKED

o 1. void ab initio marriages not falling under Art. 40 in rel 52&53, 41 in rel. 44 o without consent of parents/guardians

o legal separation (donee in bad faith) except if guilty of concubinage/adultery o resolutory condition complied therewith

o act of ingratitude (Art. 765 of Civil Code)

! 1. commits offense against the person/honor/property of donor

! 2. imputes to the donor any criminal offense unless crime has been committed against the person of the donee/wife/children under his authority

! 3. unduly refuses to give support to donor even if morally or legally bound to give support

• Recovery prescription period:

o 8 years (article 1140 of Civil Code)

o 30 years for immovable (Article 1141 Civil Code)

• For Legal Separation, after the decree of legal separation issued, donor may revoked within 5 years

Article 87 Every donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void, except moderate gifts which the spouses may give each other on the occasion of any family rejoicing. The prohibition shall also apply to persons living together as husband and wife without a valid marriage.

• Donations or grant of gratuitous advantage + DIRECT or INDIRECT + Between SPOUSES + DURING THE MARRIAGE = SHALL BE VOID

o also applies to spouses living together as husband and wife (common-law marriage) ! Except moderate gifts during times of family rejoicing

• Reason for prohibition ! undue influence • Indirect donations:

o 1. to a stepchild who has no compulsory and/legal heirs o 2. to a common child who has no compulsory and/or legal heirs o 3. to the parents of the other spouse

o 4. to the other spouse'’s adopted child who has no compulsory and/or legal heirs o 5. to a common adopted child who has no compulsory and/or legal heirs. • “Interested parties” challenging the validity of transfer

o prohibited are those parties who has absolutely no relation o the parties to the transfer AT THE TIME IT OCCURRED and had no rights or interests inchoate present, remote or otherwise, in the property in question at the time of transfer.

• RESERVA TRONCAL (Art. 891 of CC)

o that the ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of the relatives who are within the third degree and who belong to the line from which said property came.

Chapter 8. System of