Main Topic: Liquidation of the Conjugal Partnership
Sub. Topic: Chapter 4 Conjugal Partnership of Gains
Art. 185. The net remainder of the conjugal partnership of gains shall be divided equally between the husband and the wife or their respective heirs, unless a different basis of division was agreed upon in the marriage settlements.
Discussion/Explanation:
In this article the profits refers to the net remainder of the conjugal properties, that is, after paying the conjugal obligations. The law provides that the surviving spouse is entitled to a portion “equal to legitimize of each of the legitimate children or descendants”, the descendant succeed only in representation of the children, and hence whatever the number of descendants may be would be immaterial. The important thing is the number of children, whether surviving or represented by descendants. If only descendants survive, therefore, the number of children they represent, and not the number of descendants, is to be taken as the divisor.
The descendants have their own right and share equally or per capita. In this case, it would seem that the legitimacy of the surviving spouse must be equal to that of each descendant. Under this view, however, it will be possible for the children, by repudiating, to considerably reduce the amount of legitimacy of the living spouse, if there are more descendants.
This is most likely to happen when the children descendants are from a former marriage of the deceased, and, therefore, might wish to prejudice the surviving spouse who is only a stepparent to them. The legitimacy of the widower should not be reduced by the unilateral act of the children. The divisor must still be the number of children.
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