Absolute Community vs Conjugal Partnership of Gains
Quick answer
Absolute community and conjugal partnership of gains are the two default property regimes for married couples in the Philippines: one for marriages under the Family Code, the other for older marriages. Under absolute community, almost everything the spouses own, before and during the marriage, becomes common property. Under conjugal partnership of gains, each spouse keeps what he or she owned before the wedding, and only the income and gains during the marriage are shared. Which one applies depends mainly on when you married and whether you signed a prenuptial agreement.
| Aspect | Absolute community of property | Conjugal partnership of gains | Legal basis |
|---|---|---|---|
| Which marriages | The default under the Family Code: it applies when the couple made no prenuptial agreement (marriage settlement) or the regime they chose is void (Article 75). A couple may also choose it in a prenup. | Marriages before the Family Code took effect that had no prenup (Civil Code Article 119; Family Code Article 105). Later marriages have it only if the prenup chooses it. | Article 75, Family Code |
| When it starts | At the precise moment the marriage is celebrated. A different start date agreed by the spouses is void (Article 88). | Same rule: Article 107 applies Article 88 to the conjugal partnership. | |
| What is common property | All property the spouses own on the wedding day and everything acquired after, except what the law or the prenup excludes (Article 91). | The income and gains made during the marriage: what either spouse earns from work, property bought with common funds, the fruits of common property and the net fruits of each spouse's own property (Articles 106 and 117). | Article 91, Family Code |
| What stays each spouse's own | Property received during the marriage by donation or inheritance, with its fruits and income, unless the giver says it is for the community; things for personal use, except jewelry; and pre-marriage property of a spouse who has legitimate descendants by a former marriage (Article 92). | Property brought into the marriage; property received during the marriage by donation or inheritance; property acquired by redemption, barter or exchange with one spouse's own property; and property bought with one spouse's own money (Article 109). | |
| Property owned before the wedding | Becomes common property, unless the owner already has legitimate descendants by a former marriage (Articles 91 and 92(3)). | Stays the owner's own property (Article 109(1)). For property bought on installments, it depends on whether full ownership passed before or during the marriage (Article 118). | Article 91, Family Code |
| Fruits of a spouse's own property (rent, harvest, interest) | The fruits and income of property received by donation or inheritance stay with that property as the spouse's own, unless the giver says they are for the community (Article 92(1)). The same goes for the fruits of pre-marriage property kept separate under Article 92(3). | The net fruits of each spouse's own property are conjugal (Article 117(3)). | |
| Property bought during the marriage | Presumed to be community property unless it is proved to be one of the exclusions (Article 93). | Presumed to be conjugal, even if only one spouse's name is on the title, unless the contrary is proved (Article 116). | |
| Who manages it | Both spouses jointly. If they disagree, the law says the husband's decision prevails, but the wife may go to court within five years from the date of the contract carrying out that decision (Article 96). | The same rule (Article 124). | Article 96, Family Code, Article 124, Family Code |
| Selling or mortgaging common property without the other spouse | Void without the court's authority or the other spouse's written consent. It is treated as a continuing offer that the other spouse may still accept, or the court may authorize, before it is withdrawn (Article 96). | Same rule (Article 124). In Homeowners Savings & Loan Bank v. Dailo (2005), the Supreme Court held that such a mortgage is void as a whole, not only as to the other spouse's share. | Article 96, Family Code, Article 124, Family Code |
| Division when the regime ends | Debts are paid, each spouse takes back his or her own property, and the net assets are divided equally unless the prenup says otherwise (Article 102). | Debts are paid, advances and reimbursements are settled, each spouse takes back his or her own property, and the net profits are divided equally unless the prenup says otherwise (Article 129). | |
| Liquidation when a spouse dies | Done in the estate settlement case. If there is none, the surviving spouse must liquidate within one year from the death, or later sales and mortgages of community property are void (Article 103). | Done in the estate settlement case. If there is none, the surviving spouse must liquidate within six months from the death, or later sales and mortgages of conjugal property are void (Article 130). | |
| If the survivor remarries without liquidating | The new marriage is governed by complete separation of property (Article 103). | Same rule (Article 130). |
Which regime applies to my marriage?
Check two things: the wedding date and whether there is a prenup (the Family Code calls it a "marriage settlement").
- Married on or after August 3, 1988, without a prenup: absolute community of property. Article 75 makes it the default, and the Supreme Court noted in Homeowners Savings & Loan Bank v. Dailo (2005) that the Family Code took effect on August 3, 1988.
- Married before August 3, 1988, without a prenup: conjugal partnership of gains. That was the Civil Code default (Article 119), and Article 105 of the Family Code keeps those partnerships, applying the Family Code rules to them without prejudice to rights already acquired.
- Any date, with a valid prenup: the regime the prenup chose. It can be absolute community, conjugal partnership, complete separation of property or another regime (Family Code Article 75; for older marriages, Civil Code Article 119). See what a prenup must contain.
Your PSA marriage certificate shows the date of the wedding. Under Article 22(7) of the Family Code, the marriage certificate also states that the parties made a marriage settlement, if any.
What is the biggest difference?
The biggest difference is property that existed before the wedding.
Under absolute community, Article 91 puts into the common pool "all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter". A lot one spouse bought while single becomes common property on the wedding day. The main exception is a spouse who already has legitimate children or descendants by a former marriage: his or her pre-marriage property, with its fruits and income, stays separate (Article 92(3)).
Under conjugal partnership, what each spouse "brought to the marriage" stays his or her own (Article 109). What becomes common is what the marriage produces: salaries and business income, things bought with common money, and the net fruits (such as rent or harvest) of each spouse's own property (Articles 106 and 117).
In both regimes, property received during the marriage by inheritance or donation stays with the spouse who received it (Articles 92(1) and 109(2)).
Who decides, and can one spouse sell alone?
On this point the two regimes have the same rule. Article 96 (absolute community) and Article 124 (conjugal partnership) say the property is managed by both spouses jointly. Neither spouse may sell or mortgage common property without the other's written consent or the court's authority:
In the absence of such authority or consent, the disposition or encumbrance shall be void.
In the Dailo case, a husband, through an agent he had authorized, mortgaged conjugal property to a bank without his wife's knowledge and consent. The Supreme Court held that the mortgage was void as a whole, not only as to the wife's share. It also said that the bank, which claimed the loan benefited the family, had to prove it. For the full rules, see Can a spouse sell conjugal property without consent?
Exclusive property is different. Under Article 111 of the conjugal partnership chapter, as amended by Republic Act No. 10572, either spouse may sell, mortgage or otherwise dispose of his or her exclusive property.
What happens to the property when a spouse dies?
In both regimes, the common property is liquidated in the case that settles the estate of the spouse who died (Articles 103 and 130). If no court case is filed, the surviving spouse must liquidate it, in court or out of court, within a deadline:
- Absolute community: within one year from the death (Article 103).
- Conjugal partnership: within six months from the death (Article 130).
After the deadline, any sale or mortgage of that common property is void. If the survivor remarries without liquidating, the new marriage is governed by complete separation of property. Only after liquidation is the deceased spouse's share divided among the heirs; see legitime shares.
How does this work in real life?
These are made-up examples to show how the rules work. They are not advice for any real case.
Maria and Jose (absolute community). They married in 2015 with no prenup, so absolute community applies (Article 75). The condo Maria finished paying in 2012, before the wedding, becomes community property (Article 91). The house lot her father left her in his will in 2020 stays hers, with the rent it earns, because the will does not say it is for the community (Article 92(1)).
Ana and Ben (conjugal partnership). They married in 1985 with no prenup, so conjugal partnership applies (Civil Code Article 119; Family Code Article 105). Ana's farm from before the wedding stays hers (Article 109(1)). The net income from the harvests during the marriage is conjugal (Article 117(3)).
Ben and the bank. In 1995 the couple bought a house during the marriage, so it is presumed conjugal (Article 116). Ben mortgages it to a bank without Ana's written consent or a court's authority. The mortgage is void (Article 124). The conjugal partnership answers for Ben's loan only to the extent that the family benefited from it (Article 121(3)), and in the Dailo case the Court said the creditor who claims that benefit must prove it.
What about couples who are not married?
Neither regime applies. Couples living together without a valid marriage have their own rules in Articles 147 and 148 of the Family Code. See property of live-in partners.
When do you need a lawyer?
Talk to a lawyer before you sign a sale, mortgage or waiver involving property of a marriage, when you are unsure which regime applies, and after a spouse dies, because of the liquidation deadlines above. If you cannot afford one, see free legal help.
Which provisions does this answer rest on?
- Article 75, Family CodeDefault property regime: absolute community
- Article 77, Family CodeForm of a prenuptial agreement
- Article 91, Family CodeWhat absolute community property includes
- Article 96, Family CodeAdministration of community property
- Article 124, Family CodeAdministration of conjugal property
Frequently asked questions
Is property bought before marriage conjugal property?
It depends on the regime. Under absolute community, property owned on the wedding day becomes common property (Article 91), unless the owner already had legitimate descendants by a former marriage (Article 92(3)). Under conjugal partnership of gains, property brought into the marriage stays the owner's own (Article 109(1)).
Is an inherited house part of the community property?
As a rule, no, in both regimes. Property received during the marriage by inheritance or donation stays the receiving spouse's own (Articles 92(1) and 109(2)). Under absolute community its fruits and income stay with it too, unless the giver said otherwise; under conjugal partnership its net fruits are conjugal (Article 117(3)).
Which regime applies if we married in 1985 without a prenup?
Conjugal partnership of gains. That was the default under the Civil Code (Article 119), and Article 105 of the Family Code says the Family Code rules also apply to conjugal partnerships already established before it took effect, without prejudice to rights already acquired.
Does a title in my name alone make the property mine?
Not by itself. Property acquired during the marriage is presumed common or conjugal even if it is registered in the name of only one spouse (Articles 93 and 116). The spouse who claims it as his or her own must prove it.
Can we switch from one regime to the other after the wedding?
Not by private agreement. A prenup and any change to it must be made in writing before the wedding (Articles 76 and 77). After the wedding, Article 76 allows changes only in the cases it lists, such as a joint petition in court for the voluntary dissolution of the absolute community or conjugal partnership and the separation of the common property (Article 136).
Are the debts of one spouse paid from common property?
Only in the cases the law lists. Both regimes answer for debts one spouse made without the other's consent only to the extent that the family benefited (Articles 94(3) and 121(3)).
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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