Excluded from absolute community of property

Dear PAO,

My mom and dad got married in 2000, but unfortunately, my mom died in 2020. Recently, my dad talked to me and to my siblings, asking for our blessing because he wants to re-marry. I have no issue if he marries again. My only reservation is its possible effect on the properties obtained by my dad and my deceased mother during their marriage. I want to know whether those properties would form part of the community property of my dad and his future wife in case they marry each other.

Rhia

Dear Rhia,

Article 92 of the Family Code of the Philippines enumerated the properties that would be excluded from the absolute community of property. Paragraph 3 thereof specifically provides that the properties acquired before the marriage by either spouse, provided that he/she has legitimate descendants in his/her former marriage, would be excluded from the absolute community of property. To quote the law:

«ARTICLE 92. The following shall be excluded from the community property: x x x

»(3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property."

It is clear from the abovementioned law that if one of the future spouses had a previous marriage and he/she has legitimate descendants, those properties acquired during that previous marriage would be excluded from the absolute community property of the subsequent marriage. Under Article 164 of the said Code, children who are conceived or born during the marriage of the parents are considered as legitimate.

The underlying reason for this exclusion is to protect the rights and interests of the legitimate descendants from the first marriage over the community properties of their parents. It would ensure that the children born in the prior marriage would not be deprived of their respective shares in the properties acquired by their parents.

In your case, the properties acquired during the marriage of your father and your mother will be excluded from the absolute community of property of your father and his future wife, should they get married. You and your siblings are considered legitimate descendants