Article 101 of the Family Code: Abandonment by a spouse
Status: In force
What does Article 101 say?
If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.
What does it mean in plain language?
Article 101 of the Family Code covers a spouse who, without just cause, abandons the other or fails to meet his or her obligations to the family. The other spouse may ask the court for receivership, for judicial separation of property, or for authority to be the sole administrator of the community property. A spouse gone for three months without news is presumed to have no intention of returning.
"Receivership" means the court appoints a person to take care of the property. "Judicial separation of property" means a court order that separates the property of the spouses while the marriage continues.
How does it work in real life?
Ian and Joy: no news for months
Ian left the family home and gave no news for more than three months. Under Article 101 he is presumed to have no intention of returning. His wife Joy may ask the court for receivership, judicial separation of property, or authority to be the sole administrator of the community property.
Mon: a spouse who left without reason
Mon left the conjugal home without just cause. Under Article 100(1), he has no right to be supported.
Rosa and Tony: still at home, but no support
Tony lives at home but, without just cause, spends his income on gambling and gives nothing for the children's needs. Article 101 also covers a spouse who fails to comply with his or her obligations to the family, so Rosa may use the same remedies.
These are made-up examples to show how the rule works. They are not advice for any real case.
What does this mean in practice?
- The duty to live together is in Article 68, but no court can force a spouse to come home.
- Abandonment is also one of the causes for judicial separation of property in Article 135. See Article 134.
- The rules on selling community or conjugal property are in Article 96 and Article 124.
- For the children's support, see how much is child support? For economic abuse and protection orders, see how to file a VAWC case. For living apart with a court decree, see grounds for legal separation.
- For a question-and-answer guide, see what can you do if your spouse abandoned the family?
What does Article 101 say?
If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to be the sole administrator of the absolute community, subject to such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer to marital, parental or property relations.
A spouse is deemed to have abandoned the other when her or she has left the conjugal dwelling without intention of returning. The spouse who has left the conjugal dwelling for a period of three months or has failed within the same period to give any information as to his or her whereabouts shall be prima facie presumed to have no intention of returning to the conjugal dwelling.
The E-Library copy prints "her or she" in the last paragraph. The same rule for conjugal partnerships, Article 128, reads "he or she".
What counts as abandonment?
Article 101 covers two situations, both "without just cause":
- Abandonment. The spouse has left the conjugal dwelling without intention of returning.
- Failure to meet obligations to the family. The spouse may still be around but does not comply with his or her marital, parental or property obligations.
What is the three-month presumption?
A spouse who has left the conjugal dwelling for three months, or who has given no information about his or her whereabouts for three months, is presumed to have no intention of returning. The presumption is "prima facie": it holds unless evidence shows otherwise.
What can the other spouse ask for?
The aggrieved spouse may petition the court for one of three things:
- receivership of the property;
- judicial separation of property; or
- authority to be the sole administrator of the absolute community.
The court may impose precautionary conditions. Article 128 gives the same three remedies for couples under the conjugal partnership of gains.
What else changes when spouses live apart?
Article 100 sets rules for spouses who are separated in fact under the absolute community:
- A spouse who leaves the conjugal home or refuses to live there without just cause has no right to be supported.
- When the law requires one spouse's consent to a transaction of the other, the court's authorization is obtained in a summary proceeding.
- If the community property is not enough, the separate property of both spouses is solidarily liable for the support of the family. The spouse present may ask the court, in a summary proceeding, for authority to administer or encumber specific separate property of the other spouse and use the fruits or proceeds for the other spouse's share.
Frequently asked questions
When is a spouse considered to have abandoned the family?
Under Article 101, a spouse has abandoned the other when he or she has left the conjugal dwelling without intention of returning. A spouse who has been gone for three months, or has given no news of his or her whereabouts for three months, is presumed to have no intention of returning.
What can the abandoned spouse ask the court for?
Receivership, judicial separation of property, or authority to be the sole administrator of the absolute community, subject to conditions the court may impose. Article 128 gives the same remedies for a conjugal partnership.
Is the three-month rule final?
No. The article says the absent spouse is prima facie presumed to have no intention of returning. Prima facie means the presumption holds unless it is disproved by evidence.
Does a spouse who leaves still have a right to support?
Under Article 100(1), a spouse who leaves the conjugal home or refuses to live there without just cause has no right to be supported.
Does Article 101 cover a spouse who stays but does not support the family?
Yes. Article 101 also covers a spouse who, without just cause, fails to comply with his or her obligations to the family, meaning marital, parental or property obligations.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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