I am planning to buy a piece of land from my sister-in-law. Is it necessary to get her husband’s consent to the sale of their land even if they are already separated?
In the absence of a marriage settlement between your sister-in-law and her husband as to the property relations that will govern during their marriage or when the regime agreed upon is void, they shall be governed by the system of absolute community of property as provided under the Family Code of the Philippines (Article 75, Family Code of the Philippines). Under this regime, all the properties which are owned by the spouses at the time of the celebration of their marriage or acquired thereafter shall be owned in common by them (Article 91, Family Code of the Philippines). Because of this co-ownership, both the consent of the spouses shall be obtained in the sale and other transactions involving their co-owned properties.
However, the regime of absolute community of property shall be considered terminated if there is already a decree of legal separation between the spouses or if their marriage has already been annulled or declared void (Article 99, Family Code of the Philippines). Upon its termination, the community property shall be liquidated and distributed between the spouses. In which case, either of the spouses may freely enter into any transaction without securing the consent of the other. Pending the liquidation of the absolute community, the spouses may still alienate the properties but such alienation shall be considered limited to his or her undivided interest in the community property and cannot involve any particular or specific property or physical part of it (Arturo M. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Volume One (1990 Ed.), page 394).
A different rule shall apply if the spouses are separated in fact only. Separation in fact refers to the actual separate cohabitation of the husband and the wife without a court order. The separation in fact between the spouses does not affect their regime of absolute community of property. Hence, the consent of both of the spouses shall still be obtained in every transaction involving their absolute community property. However, where the consent of one spouse to a transaction cannot be obtained, the other spouse may petition the court for judicial authorization to proceed with the transaction (Article 100, Family Code of the Philippines). This shall be done by filing a verified petition with the court and attaching thereto the proposed deed for the transaction, if there is any, and if none, shall describe in detail the said transaction and state the reason why the required consent thereto cannot be obtained. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court (Article 239, Family Code of the Philippines).
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilAatimes.net