Dear PAO,

I am legally married for five years, but my wife and I separated on our 2nd year of marriage due to irreconcilable differences. I am now with a partner with whom I have built a profitable business, and as a result, we were able to buy a condominium unit. When my wife learned about it, she began demanding the condominium unit for herself. Does my legal wife have any right over the property when she did not contribute to its purchase? I want to be enlightened, as I feel it is unfair for her to claim any part of it when the condominium unit was acquired solely through my and my partner’s joint efforts in growing our business.

Juancho

Dear Juancho,

Under Article 148 of the Family Code of the Philippines, when the parties who live exclusively, but are incapacitated to marry each other acquire properties, “only the properties acquired by both of them through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof of the actual contribution, the shares of each party are presumed to be equal. This presumption is also applied to joint bank deposits and evidences of credit.”

In connection thereto, if one of the parties is validly married to another, then his or her share in the co-ownership shall accrue for the benefit of the absolute community or conjugal partnership existing in such valid marriage.

In your case, you mentioned that the condominium unit was purchased by you and your partner through your joint efforts in your business. As such, the condominium unit may be said to be equally co-owned by you and your common-law wife. If this is the case, considering that you are still validly married to your legal wife, then it means that your share in the condominium unit shall be part of the property regime, i.e. absolute community of property or conjugal partnership of gains, whichever may be applicable to your marriage, that you have with her.

Note, however, that you need to show proof that the condominium unit was indeed purchased through you and your partner’s joint contribution. That is to say, your partner shared in buying the condominium unit. Failure to do so would result in the condominium unit forming part of your common property with your legal wife. As declared by the Supreme Court in Tumlos v. Sps. Fernandez, GR 137650, April 12, 2000, through then Associate Justice, Artemio Panganiban, Jr.:

“Under Article 148 of the Family Code, a man and a woman who are not legally capacitated to marry each other, but who nonetheless live together conjugally, may be deemed co-owners of a property acquired during the cohabitation only upon proof that each made an actual contribution to its acquisition. Hence, mere cohabitation without proof of contribution will not result in a co-ownership. xxx

“In this case, petitioner fails to present any evidence that she had made an actual contribution to purchase the subject property. Indeed, she anchors her claim of co-ownership merely on her cohabitation with Respondent Mario Fernandez. xxx

“Clearly, there is no basis for petitioner’s claim of co-ownership. The property in question belongs to the conjugal partnership of respondents. Hence, the MTC and the CA were correct in ordering the ejectment of petitioner from the premises.”

We hope that we were able to answer your queries. This advice was based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]