System of Absolute Community

The absolute community of property is the most basic and default property relation
among the future spouses in marriage, where the Family Code of the Philippines recognizes it
either when the couple primarily chose it as their own or if they had failed to stipulate in the
marriage settlement what property relation would govern them. The system of absolute
community would also apply if the future spouses stipulated a void property relation among
themselves, as this is the default scheme governing their property. The family, being the basic
social institution and the foundation of the nation, is strongly protected and upheld by the
Constitution and the laws of the land. Such protection involves what others may call the seed of
evil in marriage, which are the pieces of property they own or co-own, as the case may be.
Article 88 of the Family Code states:
Art. 88. The absolute community of property between
spouses shall commence at the precise moment that the
marriage is celebrated. Any stipulation, express or implied,
for the commencement of the community regime at any
other time shall be void. (145a)
This article specifically states the commencement of the property regime mentioned,
which is at the precise moment that the marriage is celebrated, and not merely on the day of the
marriage, which admittedly could lead to future problems regarding it. Also, it is forbidden to
allow a delay period in actually letting the marriage settlement of the absolute community of
property take effect, whether it be expressly stipulated or impliedly. It is not forbidden per se,
because they may still stipulate anything with regard to the property relation and its effectivity
date, but it would merely be considered void, as our laws dictate explicitly.
Article 91 states:
Art. 91. Unless otherwise provided in this Chapter or in
the marriage settlements, the community property shall
consist of all the property owned by the spouses at the time
of the celebration of the marriage or acquired thereafter.
(197a)
The system of absolute community clearly exhibits in the Family Code that the
presumption in so far as the ownership of the property of each of the spouses at the time of the
celebration of the marriage and the subsequent acquisitions during the marriage is concerned, is
that they are all part of the community property. However, it is merely a rebuttable presumption,
for if proven or if it was stated in the marriage settlements that certain property was deemed
excluded in the community property and therefore included in the exclusive property of one of
the spouses, it should be deemed so and respected. This effectively allows the couple to
customize their marriage settlement according to their specific tailoring of which property they
are willing to bring into the marriage and consequently to the community property, and which
pieces of property they prefer to be held exclusively by them. This could however impair what
the law envisions as the complete trust between the spouses regarding their marriage and
property. Selfishness and greed would be apparent in those settlements which specifically
excludes lucrative property of a spouse, but this would be merely judgmental opinions which do
not in any way define what the couple had talked about. This provision in the Family Code is one

of the few which is admirably well thought of and is open-minded to the changes and evolutions
in the family and marriage.
With regard to the subsequent acquisitions during the marriage, it is not exaclty as clear
as what the law intends. It says all acquisitions are deemed included in the community property,
except as provided in this Code or in the marriage settlements. Comparing this with the
provision in Article 109 of the Family Code about the conjugal partnership of gains:
Art. 109. The following shall be the exclusive property
of each spouse:
(1) That which is brought to the marriage as his or
her own;
(2) That which each acquires during the marriage
by gratuitous title;
(3) That which is acquired by right of redemption,
by barter or by exchange with property belonging to
only one of the spouses; and
(4) That which is purchased with exclusive money
of the wife or of the husband. (148a)
While the aforementioned provision on the exclusive property of each spouse in the
conjugal partnership of gains explicitly stated that the source of funds of the purchases is the
main factor in considering its place whether it is paraphernal or community property, it is
obviously omitted in the case of the system of absolute community. Some authors of annotated
books in Civil Law firmly believe that the drafters of the said provision intended the omission to
effectively create a different rule with regard to the absolute community of property. They say
that those purchases during the marriage, whether the source of funds is the exclusive or
community property, are now deemed part of the latter. They contend that since the Family Code
intentionally made the absolute community of property the default property relation among
spouses, it follows that they also intended the complete trust and closeness of the spouses, and
their property. Therefore, even if the spouse made purchases out of his exclusive property, the
purchased property is now converted to a community property. This presumption of the said
authors completely disregarded the prejudice it would entail upon both spouses, that they would
now be hesitant in making purchases and acquisitions of pieces of property merely because of
the default and automatic conversion of their exclusive property into community property. This
would make the marriage settlement regarding the separation of chosen property as exclusive
property inutile and useless. While it is true and honorable that the Family Codes purpose is to
strengthen the family bonds and marriage, it should have its limits, especially when it contradicts
or disables some of its own provisions. What then is the use of talking it out with ones spouse on
which property is to be maintained as still exclusive or now as community, when it would merely
equate to the community if it was eventually converted. It freezes and substantially stops the
particular spouse from ever getting involved in transactions involving his exclusive property for
fear of losing his full right on his property. The rules laid down for the conjugal partnership of
gains should and most definitely should be applied also to the absolute community of property,
for it is equitable and just, or as the converse of it would imply, the current interpreted rule is
inequitable and unjust and prejudicial to the purchasing or acquiring spouse.

Article 92 of the Family Code states that:

Art. 92. The following shall be excluded from the
community property:
(1) Property acquired during the marriage by
gratuitous title by either spouse, and the fruits as well
as the income thereof, if any, unless it is expressly
provided by the donor, testator or grantor that they
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. (201a)
Article 92 enumerates the exclusions from the community property, and is deemed the
exclusive list, plus other pieces of property which would be exclusive according to the marriage
settlements. Property acquired during the marriage by gratuitous title simply means it was
acquired by the spouse through inheritance or donation. It is specifically stated that gratuitous
acquisitions during the pendency of the marriage are the only acquisitions deemed excluded from
the community property. Thus, acquisitions before the said marriage is considered as the
community property of the spouse if their property relation is the system of absolute community
and if the said property was not one of those deemed exclusive in the marriage settlements.
Gratuitous acquisition after the marriage will of course be part of the exclusive property of the
person because there is no marriage anymore binding him or her and the property relation is also
severed.
The second enumeration in Article 92 is subject to many interpretations and conflicting
opinions. The established rule in this regard is that the property brought by the particular spouse
for his or her personal or exclusive use is obviously exclusive, and this would include the
clothing and even underwear of the spouse. What if however they made subsequent acquisitions
of such clothing and underwear for personal and exclusive use? Are they considered as exclusive
property due to their purpose? Or are they converted again to community property due to the
mere fact that the funds came from either exclusive or community property? Some may consider
the clothing as a form of support, thus it is community property. What if then the spouse bought a
car for his or her personal and exclusive use and the funds came from his or her paraphernal
property? This should not be considered or converted to community property as this would again
prejudice the purchasing spouse in his property rights. It renderes him or her yet again stunned in
making any purchases for fear of eventually losing all his or her exclusive property to the
community property.
The third enumeration depicts a situation where one of the spouses got married
previously, and that he or she begotten pieces of property due to the previous marriage. These are
deemed exclusive for the sake of avoiding prejudice to the legitimate descendants of that former
marriage in favor of the current marriage. Therefore, the law excluded these as part of the
community property. If the logic in this provision is applied consistently, as is shows and

priortizes the avoidance of prejudice, then it should also apply to the subsequent acquisitions of
the spouse using his or her exclusive property. The property then converted should not in any
way be put or commingled in the community property, as this would prejudice his or her right in
the property concerned.
If however, the spouse who contracted a former marriage had no legitimate descendants,
can the pieces of property involved be now considered community? This could be answered in
the affirmative because the spirit of the law reasoned avoidance of prejudice, and this would not
anymore create any in this certain case.
Art. 95. Whatever may be lost during the marriage in
any game of chance, betting, sweepstakes, or any other
kind of gambling, whether permitted or prohibited by law,
shall be borne by the loser and shall not be charged to the
community but any winnings therefrom shall form part of
the community property. (164a)
Article 95 contemplates a situation where a spouse is involved in any game of chance,
and is either a winner or a loser in such games. This simply states that if he loses, he bears all the
burden, but if he wins, he shares his prizes. This was drafted to prevent yet again to prejudice the
community property and to avoid the damaging effects of gambling on the said property.
However, this contradicts what the common phrase in richer or poorer implies. A better phrase
suitable to this particular case is what is yours is mine, and what is mine is mine. Why should
the gambling spouse share his winnings with the other spouse when his exclusive property was
the only one at risk of being lost? This only furthers the rationale that gambling is generally
discouraged by our laws.
Article 96 of the Family Code states:
Art. 96. The administration and enjoyment of the
community property shall belong to both spouses jointly. In
case of disagreement, the husband's decision shall prevail,
subject to recourse to the court by the wife for proper
remedy, which must be availed of within five years from the
date of the contract implementing such decision.
In the event that one spouse is incapacitated or
otherwise unable to participate in the administration of the
common properties, the other spouse may assume sole
powers of administration. These powers do not include
disposition or encumbrance without authority of the court
or the written consent of the other spouse. In the absence of
such authority or consent, the disposition or encumbrance
shall be void. However, the transaction shall be construed
as a continuing offer on the part of the consenting spouse
and the third person, and may be perfected as a binding
contract upon the acceptance by the other spouse or

authorization by the court before the offer is withdrawn by

either or both offerors. (206a)
The start of the article kindly states that the spouses are on equal footing with each other
when it comes to the administration and enjoyment of their property. However, this is quickly
disregarded in the next sentence which simply states that the husband still has the final say in
case of disagreement. Even if the law provided for a remedy to the wife in the courts, this still
has the tinging effect of obviously favoring the husbands decision and discretion when it comes
these cases. Resorting to the courts for relief by the wife is merely a secondary consideration and
is sometimes too cumbersome to go through. The mere fact that the law mentions the husband
first and that his decisions would prevail is a proof that society today still considers the male as
the prevailing sex - paternal society as we could call it. In todays society unlike the olden times,
women are very much capable of almost anything men can do, and sometimes even excel at it
better than men. This evolving aspect of society should be greatly considered for the equality and
non-discrimination of women.
Art. 98. Neither spouse may donate any community
property without the consent of the other. However, either
spouse may, without the consent of the other, make
moderate donations from the community property for
charity or on occasions of family rejoicing or family
distress. (n)
This provision of the Family Code regarding donation of community property explicitly
stated about community property. However it should not be inferred from the aforementioned
article that donations from exclusive property of the spouse to the other spouse is allowed, as this
is prohibited according to Article 87 of the Family Code:
Art. 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.
(133a)
The standard of moderate donations from the community property for charity or on
occasions of family rejoicing or family distress would completely depend on the circumstances
and the financial condition of the family, for what is considered moderate for a poor family is
way too different in the perspective of an affluent one. This should be well taken note of in
deciding cases regarding donations claimed as given as moderate gifts.
RICHARD L. CHICO

LLB-1

PERSONS AND FAMILY RELATIONS