Do my children get their property share before I can remarry after an annulment?

A legitime delivered while both parents are alive

A legitime is the share of an estate the law reserves for compulsory heirs, and it normally becomes payable only on death. What Article 51 does is pull a valuation of that share forward and require it to be handed over now, as part of the partition that follows an annulment or a declaration of nullity. That is why it is called presumptive: nobody has died, and the figure rests on the parents' property as it stands at the moment of judgment. The point is protective. Children whose parents' property regime is being unwound should not have to wait and hope that something survives the unwinding.

The valuation date and the form of delivery

Two details in the text decide most disputes. The value is computed as of the date of the final judgment of the trial court, so later movements in the market do not reopen the arithmetic, in either direction. And delivery is to be in cash, property or sound securities — a promise to pay, a post-dated arrangement or a share in something illiquid is not what the provision describes. The one carve-out is where the parties, by mutual agreement judicially approved, had already provided for such matters. An agreement the court has not approved does not qualify, however carefully it was drafted.

An advance, not a final settlement

The article is explicit that what the children receive now does not prejudice their ultimate successional rights when a parent eventually dies. But it is equally explicit about the other side of that coin: the value of the properties already received under the decree is treated as an advance on their legitime. So this is a payment on account, not a windfall and not a disinheritance. When the parent's estate is later settled, what was delivered here is brought into the reckoning. Parents sometimes assume the delivery closes the children out of the estate for good; it does the opposite.

Why it stands between the decree and a new marriage

The delivery is not a loose end that can be attended to later at leisure. The Code links the effects of the decree to the recording of the judgment, the partition and the distribution of the properties, and to the delivery of the children's presumptive legitimes, and it makes a former spouse's capacity to marry again depend on those steps being complied with. Article 51 also names who can push the matter along: the children, their guardian, or the trustee of their property may ask for enforcement of the judgment. If you are planning a second marriage, the document to obtain first is proof that the partition and the delivery were actually carried out and recorded.

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.

• Eric U. Yu vs. Hon. Judge Agnes Reyes-Carpio, et al, G.R. No. 189207, June 15, 2011 — read the decision on LawPhil →
• Alain M. Diño vs. Ma. Caridad L. Diño, G.R. No. 178044, January 19, 2011 — read the decision on LawPhil →
• Elna Mercado-Fehr vs. Bruno Fehr, G.R. No. 152716, October 23, 2003 — 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 →

Related provisions

• Family Code, Article 51 — Delivery of the Children's Presumptive Legitimes