Common Law Marriage

Dear Atty. Duran-Schulze,

Is common law marriage in the Philippines between a US Citizen and Filipina currently recognized? My dad, a Philippine born US Citizen, passed away. He was living with his Filipina girlfriend when he died. She took everything from his condo and cleaned out his bank accounts. She claims she is allowed under common law. She didn’t go to court. She took everything without our knowledge. Is this allowed?

 

Dear Andrea,

Common-law marriage is defined as “one based not upon ceremony and compliance with legal formalities but upon the agreement of two persons, legally competent to marry, to cohabit with the intention of being husband and wife.” In the Philippines, common-law marriage relationship is recognized as indicated in Article 147 of the Family Code of the Philippines (FC), which reads as:

“When a man and a woman are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit or marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.”

The qualifications under Article 147 of the FC should be present:

  1. The parties are capacitated to marry each other
    1. Must have no legal impediment to marry each other
  2. They live exclusively with each other as husband and wife
  3. They live without the benefit of marriage or under a void marriage

Under the property regime of Article 147 of the FC, property acquired by both spouses through their work and industry shall be governed by the rules on equal co-ownership. As such any property acquired during the union is prima facie presumed to have been obtained through their joint efforts.

A party who did not participate in the acquisition of the property shall still be considered as having contributed thereto jointly if said party’s “efforts consisted in the care and maintenance of the family household.”

Accordingly, if both are capacitated to marry each other, all pieces of property acquired during your union are presumed to be co-owned by both of you in equal shares, unless there is proof telling otherwise. It is noted that, “x x x A party who did not participate in the acquisition of the property shall be considered as having contributed to the same jointly if said party’s efforts consisted in the care and maintenance of the family household. Efforts in the care and maintenance of the family and household are regarded as contributions to the acquisition of common property by one who has no salary or income or work or industry. x x x” (Ocampo vs. Ocampo, G .R. No. 198908, August 3, 2015).

On the other hand, if one or both of the parties are not able to marry each other, the property that will redound to each of them shall be in proportion to their respective contributions. If there is no proof to the contrary, their respective shares are presumed to be equal. Note that if one of the parties is validly married to another person, his or her share will accrue to the absolute community or conjugal partnership in such valid marriage (Article 148 of the FC).

Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties 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 to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidence of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

In the case of your Father, there was no mention that his cohabitation with his girlfriend was within the existence of his marriage with your mother, or outside of a dissolved marriage. If the situation is the former (within the existence of marriage to your mother, then the rule that governs is Article 148 of the FC, wherein the girlfriend is not entitled to anything if she acted in bad faith; or in case of the latter, which is governed by Article 147 of the FC wherein there is a presumption of joint effort on the properties they acquired, and that the girlfriend is entitled to half of the properties they acquired during their cohabitation.

Under Article 34 of the Family Code of the Philippines, it is stated that:

“No license shall be necessary for the marriage of a man and a woman who have lived together as husband and wife for at least five years and without any legal impediment to marry each other. The contracting parties shall state the foregoing facts in an affidavit before any person authorized by law to administer oaths. The solemnizing officer shall also state under oath that he ascertained the qualifications of the contracting parties and found no legal impediment to the marriage.”

Thus, if the cohabitation of the parties involved is less than five years, then the girlfriend cannot acquire anything from the properties. But, if the cohabitation is more than five years, then the girlfriend shall be entitled to half of the properties.

In addition, if the girlfriend possesses an Special Power of Attorney (SPA) to sell the property prior to the death of the other party. Generally, real property cannot be sold immediately without an Extrajudicial Settlement of Estate. 

There are available laws to protect the interest of the heirs in regard to the real properties in question, which makes it difficult for the other person to sell the property not under his or her name. While the law states that the estate shall be owned by the heirs, and the girlfriend is not considered as an heir.

Need further information and assistance?  Talk to our Legal team at Duran & Duran-Schulze Law. Call us today at (+632) 478 5826 or send an email to info@duranschulze.com for more information.

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