Presumptive Legitime

"In annul/ed marriages, the presumptive legitime is taken from the conjugal proper-ties of the spouses, and not from the exclusive or inherited properties of each."

By Diana F. Franco*

DELIVERY OF THE PRESUMPTIVE LEGITIME

One of the effects of the annulment of marriage under Article 36** and other provisions of the Family Code on annul-ment, which was not provided for in the Civil Code of 1950, is found in Articles 50, 51, 52 and 53 of the Family Code. This is the provision for the delivery of the presumptive legitime of the children of the annulled marriage. To quote said articles:

"Art. 50: x x x The final judgment in such

cases shall provide for the liq-uidation, partition and distri-bution of the properties of the spouses, the custody and sup-port of the common children, and the delivery of their pre-sumpt ive legi t imes, unless such matters had been adjudi-cated in previous judicial pro-ceedings.

Art. 51. In said partition, the value of the p r e sumpt ive legitimes of all the common children computed as of the date of the final judgment of the trial court, shall be delivered in cash, property, or sound se-curities, unless the parties, by mutual agreement judicially approved, had already pro-vided for such matters.

Art. 52. The judgment of an-nulment or of absolute nullity of the marriage , the partition and distribution of the proper-ties of the spouses, and the de-

* Partner, Fajardo Lav,' Offices. Excerpts from the paper delivered at the 15th LAWASIA Con-ference held at the Philippine International Con-vention Center, Aug. 26-30, 1997; Former Edi-tor-in-Chief, "Bar Briefs"

livery of the children's pre-sumptive legitimes shall be re-corded in the appropriate civil registry and registries of prop-erty; otherwise, the same shall not affect third persons.

Art. 53. Either of the former spouses may marry again af-ter compliance with the re-quirements of the immediately preceding Article; otherwise, the subsequent marriage shall be null and void." (Underscor-ing ours). Article 888 of the Civil Code of 1950

provides that the share of the legitimate children in the estate of the parents is one-half (1/2) of the entire net estate. Applied to this case, one-half of the in-terest in, say a house and lot of the spouses, should therefore be delivered as the presumptive legitime of the chil-dren.

But the problem arises - not in the matter of the delivery of the legitime but in the interpretation and implementa-tion as to which properties should be subjected to the delivery of the presump-tive legitime -the conjugal properties alone or the conjugal properties together with the exclusive properties of the spouses?

Legitime, as the Civil Code defines it, "is that part of the testator's property which he cannot dispose of because the law has reserved it for certain heirs, who are therefore called compulsory heirs." (Art. 886, Civil Code). It comprises the net estate of a person. Therefore when a person dies, his net estate consists, not

only of his share in the conjugal part-nership (which is one-half) but also his exclusive properties which he may have inherited from his parents or were be-quests to him or were acquired before marriage.

Under the system of conjugal part-nership, which governed property rela-tions between spouses before the effec-tivity of the Family Code in 1988 and af-ter the effectivity, if such system were chosen in a pre-nuptial agreement, only properties acquired during the marriage could be considered conjugal. Inherited properties were considered exclusive properties of the spouses. The system of conjugal partnership prevailed, if the parties were unable to sign a pre-nup-tial agreement indicating that their re-lationship should be governed by a sys-tem of complete separation of property.

Under the Family Code, however, if the parties who got married after Au-gust 4,1988 did not sign a pre-nuptial agreement on the system of their prop-erty relations, indicating whether they intended to be governed by a complete separation of property or conjugal part-nership, their relationship shall be gov-erned by the system of absolute commu-nity of property.

TWO SCHOOLS OF THOUGHT There are two schools of thought in

the interpretation of which properties should be subjected to the delivery of the presumptive legitime of the children of annulled marriages. This has been one of the bitterly litigated issues in annul-ment proceedings.

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First - the presumptive legitime can only be taken from the conjugal proper-ties of the spouses.

Secondly - the presumptive legitime can be taken from both the conjugal properties of the spouses and the inher-ited or exclusive properties of each of the spouses.

The second theory is derived from the interpretation of the word "legitime." Legitime, as defined by Black's Law Dic-tionary, is "the net estate of a deceased person." Hence the term "net estate" in-cludes both the deceased share in the conjugal property and the exclusive or inherited properties of the deceased. The second theory also bases its strength on Article 50 of the Family Code, where it states that "the final judgment in such cases shall provide for the liquidation, partition and distribution of the proper-ties of the spouses,..."x x x .

The second theory presupposes that the term "properties of the spouses" be-ing considered for liquidation and dis-tribution, being a generic term, (and not specifically referred to as conjugal prop-erties), means both inherited and/ or ex-clusive properties and the conjugal properties. While it is true that in the partition of properties, the exclusive properties of the spouses are segregated from the conjugal ones, what is really being partitioned, liquidated and dis-tributed in the annulment proceedings are the conjugal properties alone. This matter has yet to be interpreted and de-cided upon by the Supreme Court in the annulment case s that will be brought up on appeal. But I submit that this is not entirely a grey area if one were to con-sider the spirit and intent of the framers in including these provisions on the de-livery of the presumptive legitime in the Family Code.

I believe that the correct interpretation of the term "properties of the spouses" be-ing considered for partition, liquidation and distribution in Article 50 refer to the conjugal properties only, for marriages which are governed by this system. And it is only from these conjugal properties that the presumptive legitime of the chil-dren may be taken. It is my position that the first theory should prevail - that the legitime of the legitimate children can only be taken from the conjugal properties of the spouses, not from the exclusive or in-herited properties of the spouses.

THE SPIRIT AND INTENT OF THE LAW

The minutes of the Civil Code Revi-sion Committee and the Family Code Committee on July 28,1984 and on Au-gust 11,1984 reveal that the main inter-est of the framers of the Family Code was to protect the interests of the children of the first marriage by providing not only for their support in the annulment pro-ceedings but also for the delivery of their presumptive legitimes. To insure that the delivery is complied with, the framers added the provision in Article 53 that" "either of the former spouses may marry again after compliance with the require-ments of the immediately preceding Ar-ticle; otherwise the subsequent marriage shall be null and void."

While the Civil Code Revision Com-mittee and the Family Code Committee may not have included in their delib-erations any discussion on where the presumptive legitime should be taken from, it is most likely presumed that when they were discussing the delivery of the presumptive legitime, it flowed from a discussion of the partition, dis-tribution and liquidation of the conju-gal properties of the spouses. One other Article that attests to this is Article 43, Section 2 of the Family Code, which states that "the absolute community or the conjugal partnership, as the case may be, shall be dissolved and liqui-dated..."

Hence when Articles 50 and 52 of the Family Code provide that the liqui-dation, partition and distribution of the properties of the spouses and the deliv-ery of the presumptive legitime shall be included in the final judgment of annul-ment and recorded in the registry of prop-erties, it can be presumed that the Com-mittee was thinking of the conjugal prop-erties or the absolute community, which-ever is applicable for the particular mar-riage that is being annulled.

If the conjugal partnership is the sys-tem prevailing in the marriage being an-nulled, the Committee could not have intended that a parent should be forced to prematurely part with his/her inher-ited or exclusive property during his life-time in order to provide for the presump-tive legitime of the children. This could result in the children being in a better financial position than the parent, who may suffer financial reverses in their

later years and would have no more as-sets to fall back on, simply because they have del ivered the p resumpt ive legitimes of their children from their ex-clusive or inherited properties.

The real intent of the framers of the Family Code in providing for the deliv-ery of the presumptive legitime from the conjugal properties of the spouses was to provide for the children of the first marriage from the conjugal properties of the parents so that in the event one parent enters into another marriage, the children from the prior or first marriage would not be prejudiced in their ulti-mate successional rights. When a par-ent marries for another time and the properties from the first marriage are commingled with the properties ac-quired during the second marriage, be-cause there was no delivery of the pre-sumptive legitime, the children from the first marriage would be greatly preju-diced if the children of the second mar-riage get to inherit from properties which were acquired during the first marriage.

This situation has resulted in a lot of inequity and bitter quarrels among heirs in the distribution of assets be-, tween the children of the first marriage and the children of the second marriage when the common parent dies. It is our position that the framers of the Family Code wanted to avoid this all too famil-iar controversy among heirs and in-tended that the legitime of the children of the first/annulled marriage should be taken from the conjugal properties of the spouses only.

If the annulled marriage is however governed by the system of absolute com-munity, then there is no need for this dis-tinction because in this system, all prop-erties, including the exclusive proper-ties of the spouses acquired before mar-riage, are commingled. And the pre-sumptive legitime may be derived from the properties belonging to the absolute community. •

** Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically inca-pacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solem-nization. (As amended by Executive Or-der No.227).

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