Short answer. The parent the majority of the common children choose to live with, unless you agree otherwise. Article 102 adjudicates the conjugal dwelling and its lot to that spouse. Children under seven are deemed to have chosen the mother unless a court decides otherwise; if there is no majority, the court decides.
What the law says
Unless otherwise agreed upon by the parties, in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain.
Family Code, Article 102 — Liquidating the Absolute Community. Read the full provision →
What the law says
Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise.
Family Code, Article 102 — Liquidating the Absolute Community. Read the full provision →
The house follows the children
The rule is at the end of Article 102: in the partition of the properties, the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom the majority of the common children choose to remain. It reverses the instinct most separating couples bring, which is that the house goes to whoever paid for it or whose name is on the title. Neither fact governs. The dwelling is allotted by reference to where the children will live, because the provision is protecting their continuity rather than settling a contribution dispute between the parents.
How children under seven are counted
Young children do not have to be asked. Children below the age of seven years are deemed to have chosen the mother, unless the court has decided otherwise. The presumption is not absolute — the closing clause leaves it open to a court — but it operates without evidence being led, so in a household of small children the majority usually resolves itself. Where the children are split evenly, or there is no majority for either parent, the article hands the question to the court, which decides by the best interests of the children rather than by counting heads.
Getting the house is not getting it for free
Adjudication decides who takes the dwelling, not that it comes as a bonus. The house is an asset of the community and it is counted at its value in the division, so the spouse who receives it takes a correspondingly smaller share of everything else, or pays the difference. Where the home is the largest asset there may not be enough left to balance the other side, and that is where these liquidations stall. Note too that the rule speaks of common children — children of only one spouse do not count toward the majority.
An agreement displaces all of it
The rule applies unless otherwise agreed upon by the parties, so a couple who can settle the house between themselves are not bound by the majority test at all. That is worth knowing before the argument hardens, because an agreed adjudication with a fair valuation is quicker and cheaper than a contested one. If it is contested, the material that matters is the valuation of the dwelling, the title and tax declaration, proof of what the property is worth against the rest of the estate, and the ages and living arrangements of each common child.
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 →