Property Co-Ownership and Partition in Heterosexual and Same-Sex Cohabitations

For many heterosexual couples, cohabitation serves as a provisional or premarital arrangement to test compatibility or as an alternative to high financial demands and legally binding obligations of marriage.

However, for same-sex couples, who are legally barred from matrimony under Philippine law, cohabitation represents the sole available mechanism to establish a de facto domestic partnership and, consequently, pool economic resources. 

Establishing Property Co-Ownerships

While the Family Code (E.O. 209) strictly protects marriage as an inviolable institution, it carves out a legal space for cohabitation for nonmarital couples by providing specific property regimes to govern their assets. Article 147 states:

“Article. 147. When a man and a woman who are capacitated to marry each other live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household.

Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation. ”

Clearly, property co-ownership governs cohabitation. Co-ownership, according to Article 484 of the Civil Code, is a legal relationship that arises whenever the ownership of an undivided thing or right belongs simultaneously to different persons.  

Under co-ownership arrangements, the co-owners share in both the benefits and the financial charges in direct proportion to their respective interests, with their individual portions presumed equal unless the contrary is proved (Art. 485).

Accordingly, the property co-ownership regime under Article 147 applies exclusively to cohabiting heterosexual couples (i.e., a man and a woman) who are legally capacitated to marry each other.

Recent jurisprudence clarifies that “capacitated” means both parties (a man and a woman) are at least eighteen years old and free from any legal impediments to marriage, such as those specified under Articles 37 and 38 of the Family Code.

Under this property regime, assets acquired during the union are presumed to be owned equally through joint efforts, where household care legally counts as a valid contribution. Unlike a conjugal partnership of gains, however, this co-ownership explicitly excludes the fruits and income derived from each partner’s separate property.

But what if the couple is not legally “capacitated” to marry? Article 148 provides the applicable rule:

“Article 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit.

If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad faith is not validly married to another, his or her shall be forfeited in the manner provided in the last paragraph of the preceding Article.

The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.”

Under this provision, properties acquired during cohabitation are considered common assets of both parties if it is proven that they were acquired during their relationship through their actual joint contribution of money, property, or industry. In the absence of evidence to the contrary, such contributions and their corresponding shares are prima facie presumed to be equal.

More interestingly, in Josef v. Ursua, G.R. No. 267469 (February 05, 2025), the Supreme Court established a landmark precedent by ruling that same-sex cohabitations fall within the scope of Article 148. 

The Court clarified that while same-sex partners lack the legal capacity to marry under existing family laws, their property relations are not legally invisible and are rather governed by the rules on limited co-ownership.

This breakthrough ruling arose when a same-sex couple (two women), after separating, mutually agreed to partition a house and lot that had been registered under only one partner’s name for banking convenience. When the registered owner reneged on a signed Acknowledgement admitting that her former partner had funded roughly half of the property’s acquisition and renovation costs, the aggrieved party filed for judicial partition.

Demanding Partitions

Under Article 1079 of the Civil Code, “Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value.”

In Josef v. Ursua, partition of the property held in common during cohabitation was demanded by the other party after their separation. Under Article 494, “No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned.”

As explained by the Court in the same jurisprudence, an action for partition is two-phased, requiring first a declaration of co-ownership, followed by the segregation and conveyance of a determinate portion of the properties involved. Thus, an action for partition is premised on the existence or nonexistence of co-ownership between the parties—which was already resolved in the preceding discussions. 

Without proof of actual contribution, co-ownership cannot exist, and equal shares cannot be presumed under Article 148. However, because the respondent in the given case signed an Acknowledgement recognizing the petitioner’s actual contributions and entitlement to a 50% share, she is now barred by the doctrine of estoppel from challenging that interest. This written admission satisfies the evidence required for contribution, triggering the prima facie presumption of equality and legally establishing the petitioner as a co-owner to the extent of a half-share in the property.

Accordingly, the Supreme Court granted the petition and reversed the earlier rulings of the appellate court. The complaint for the partition of real estate was granted, formally declaring the petitioner a half-owner of the disputed property. To implement the division, the case was sent back to the trial court with an order for the judge to proceed with the remaining partition process without delay.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is established. For advice tailored to your specific circumstances, consult a qualified professional.

Duran & Duran-Schulze Law (“DDS Law”) is an estate and property law firm in the Philippines specializing in real estate transactions, land title transfers, inheritance and succession matters, and other property-related services. For legal consultations and inquiries, call us at (02) 8928-9535 (landline) or +639171940482 (mobile), or email info@duranschulze.com.