Short answer. Yes. When the absolute community is partitioned, the presumptive legitimes of the common children must be delivered. The Family Code lists it as a step in the liquidation itself, carried out in accordance with Article 51, rather than something the spouses may agree to postpone.
What the law says
The presumptive legitimes of the common children shall be delivered upon partition, in accordance with Article 51.
Family Code, Article 102 — Liquidating the Absolute Community. Read the full provision →
It is a step in the procedure, not an afterthought
Article 102 sets out the liquidation of the absolute community as a numbered sequence — inventory, payment of debts, return of exclusive property, division of the net remainder — and the delivery of the children's presumptive legitimes appears as one of those steps. Placing it inside the procedure matters. It means the children's entitlement is dealt with as part of winding up the property regime, at the same time as the spouses settle accounts with each other, rather than being left to a separate proceeding later.
Presumptive, because nobody has died
A legitime is normally the portion of an estate the law reserves to compelled heirs, and it is worked out when a person dies. Here the marriage regime is ending while both parents are living, so what is delivered is presumptive — an advance on what the children would be entitled to, calculated on the property as it stands at liquidation. The word signals that this is an anticipation of a future succession, not the settlement of an estate.
It is confined to the common children
The clause says the common children, meaning the children of both spouses. A child of only one spouse is not brought into this step by this provision. That is a real limit, and it is worth noticing in a second marriage, where the household may include children whose position under this particular clause is different. The manner of delivery is governed by Article 51, which the clause incorporates by reference rather than restating.
Where it sits in the order of payment
The sequence in the article puts the payment of community debts before the division of the net remainder, and the delivery of the presumptive legitimes upon partition. So creditors of the community are not made to wait behind the children's shares; the property available for partition is what is left after the community's obligations have been met. This is general information about the structure the Code lays down, not advice on any particular liquidation.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- Brigido B. Quia vs. Rita C. Quiao, et al, G.R. No. 176556, July 4, 2012 — read the decision on LawPhil →
- Antonio A. S. Valdez vs. Rtc, Branch 102, Quezon City, et al, G.R. No. 122749, July 31, 1996 — read the decision on LawPhil →
- Lucila David and the Heirs of Rene F. Aguas, namely: Princess Luren D. Aguas, G.R. No. 241036, January 26, 2021 — read the decision on LawPhil →
- Noel Buenaventura vs. Court of Appeals, et al, G.R. No. 127358, March 31, 2005 — read the decision on LawPhil →
Related provisions
- Family Code, Article 102 — Liquidating the Absolute Community
- Family Code, Article 94 — Charges on the Community Property