Wrong presumption

A LAW EACH DAY(KEEPS TROUBLE AWAY) By Jose C. Sison (The Philippine

Star) | Updated August 14, 2013 - 12:00am

Under Article 116 of the Family Code, all properties of the marriage are presumed
conjugal. But for the presumption to apply there must be proof of acquisition during the
marriage. This rule is illustrated in this case of Romy and Remy husband and wife.

When Romy was sued in the Municipal Trial Court (MTCC) for violation of the
Bouncing Checks Law (BP 22), involving bad checks he issued totaling P330,000, he
entered into a compromise agreement with the complainant wherein he promised to pay
said sum in monthly installments of P50,000. By virtue of said agreement, the criminal
case was provisionally dismissed and the MTCC rendered judgment based thereon.

After paying the first installment, Romy however failed to comply with the decision.
Hence a Writ of Execution was issued by the MTCC upon motion of the complainant
commanding the Sheriff to collect the unpaid amount from Romy; and if he cannot pay
the same in cash, bank manager’s check, or other mode of payment, to levy upon the
properties of Romy of every kind and nature which may be disposed off for value and not
otherwise exempt from execution.

Based on this Writ, the Sheriff went to Remy’s Office located in the Provincial Capitol
Bldg and demanded that the latter surrender the Toyota Town Ace registered in Remy’s
name which was then parked outside. Despite Remy’s objection, the Sheriff proceeded to
levy the said motor vehicle and took it to his house after Remy was forced to surrender
the key to avoid further humiliation.

Later on however Remy filed an administrative complaint against the Sheriff for grave
abuse of authority and gross ignorance of the law. She claimed that the Sheriff committed
an eror in levying upon the vehicle solely registered in her name to satisfy a Writ of
Execution against her husband.

For his part the Sheriff said that he acted in accordance with law contending that it was
not his duty as sheriff to show proof that the vehicle he levied upon to execute the civil
aspect of the judgment was conjugal. Rather it was Remy’s burden to show proof that the
property was her separate paraphernal property since all properties of their marriage are
presumed conjugal. Was the Sheriff correct?

No. Indeed the law provides that all properties of the marriage are presumed to belong to
the conjugal partnership unless it is proven that it pertains exclusively to the husband or
to the wife. But for the presumption to apply, the party who invokes it must first prove
that the property was acquired during the marriage. Proof of acquisition during the
marriage is a condition sine qua non to the operation of the presumption in favor of the
conjugal partnership. Thus the time when the property was acquired is material. The
Sheriff should have gathered information when Romy and Romy were married and when
Remy acquired the vehicle. There are no such proofs in this case.

 So the Sheriff is administratively liable for simple misconduct and should be suspended
for two months with stern warning that a repetition of the same or similar act will be dealt
with more severely (Corpus vs. Pascua, A.M. No. P-11-2972, September 29, 2011, 658,
SCRA 239).

Note: Books containing compilation of my articles on Labor Law and Criminal Law
Vols.I and II now available at 403 Sunrise Condominium, 226, Ortigas Ave., Greenhills
San Juan M.M. Tel No. 7249445, email address, attyjosesison@gmail.com