What is the Regime of Separation of Property?

Each spouse shall own, dispose of, possess, administer and enjoy his or her own separate estate, without need of 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. (Art. 145, Family Code)


When shall this system govern the property relations of the spouses?

The system of complete separation of property shall govern the property relations of the spouses only in the following cases:

1.  When it is expressly provided for in the marriage settlements (Art. 145, FC);
2.  When it is so decreed by a competent court (Art. 145, FC); 
3.  When a spouse died and the surviving spouse contracts a subsequent marriage without liquidating the absolute community or conjugal partnership property, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. (Arts. 103 and 130, FC)


Should the spouses decide to separate their properties during the marriage, how could they validly perfect the separation of such properties?

The spouses have to secure judicial approval. Said judicial separation of property may either be voluntary or for sufficient cause. (Art. 134, FC)


Voluntary separation of the absolute community of property

If the spouses are amenable to separating their properties, they may jointly file a verified petition with the court for the voluntary dissolution of the absolute community or the conjugal partnership of gains, and for the separation of their common properties. (Art. 136, FC) In filing such a petition, the spouses need not state any grounds for it since mere agreement between the spouses is sufficient.

All creditors of the absolute community or of the conjugal partnership of gains, as well as the personal creditors of the spouse, shall be listed in the petition and notified of the filing thereof. The court shall take measures to protect the creditors and other persons with pecuniary interest. (Art. 136, FC)


Judicial separation of properties based on sufficient grounds

If there is no amicable settlement to voluntarily dissolve the existing property regime, one of the spouses may file a petition for dissolution of their property regime for cause. 


What are the causes for judicial separation of property?

Any of the following shall be considered 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 shall be enough basis for the grant of the decree of judicial separation of property. (Art. 135, FC)


What are the effects of a separation of property between the spouses?

Once the separation of property has been decreed:

1. The absolute community or the conjugal partnership of gains shall be liquidated in conformity with the Family Code. However, during the pendency of the proceedings for separation of property, the absolute community or the conjugal partnership shall pay for the support of the spouses and their children. (Art. 137, FC)

2.  After dissolution of the absolute community or of the conjugal partnership, the provisions on complete separation of property shall apply. (Art. 138, FC)

3. The separation of property shall not prejudice the rights previously acquired by creditors. (Art. 140, FC) If the absolute community or conjugal partnership is insufficient to cover their liabilities, the spouses shall be solidarily liable for the unpaid balance with their separate properties. (Art. 121, FC)

4. Notwithstanding the separation of property between the spouses, the spouses shall continue to be jointly liable for the support of the children (Art. 195[3], FC). Likewise, the spouses shall continue to be mutually obliged to support each other unless a final judgment granting a petition for legal separation or for annulment of marriage or for declaration of nullity of marriage has been obtained, in which case, the obligation of mutual support between the spouses ceases. (Arts. 195 and 198, FC)

Note: The petition for separation of property and the final judgment granting the same shall be recorded in the proper local civil registries and registries of property. (Art. 138, FC)