Court intervention needed in disposing property

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Persida Acosta

Persida Acosta

Dear PAO,
My husband left us almost a year ago. We have been married for the past 10 years. Since I am not employed, I am having a hard time looking for means to feed our children. We have a vacant lot in Quezon and I am planning to sell this just to augment the needs of my children. I know that without my husband’s consent the sale is not valid.

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Can I still sell the lot without my husband?
Shanen

Dear Shanen,
Since you mentioned in your letter that you are married to your husband for ten (10) years now, it is safe to assume that you were married when the Family Code is already in effect. Likewise, since there was no mention in your letter that you have a prenuptial agreement with your husband insofar as your property relation is concerned, we will assume that your property relation is under the regime of absolute community of property.

It is clear that under the Family Code, the absolute community property of husband and wife may answer for the support of their family, especially their children. This is particularly provided under Article 94 of the said law which provides:

“Art. 94. The absolute community of property shall be liable for:

(1) The support of the spouses, their common children, and legitimate children of either spouse; however, the support of illegitimate children shall be governed by the provisions of this Code on Support; xxx”

The Family Code likewise provides that the husband and wife exercise jointly the right to administer their properties and in case of disagreement, it is the husband’s decision that will prevail, subject to the recourse of the wife to go to court and question her husband’s decision. In the event that the husband is absent or otherwise incapacitated, the wife may assume the administration of their properties but this does not include the power to encumber or dispose of their properties. However, if the husband’s consent is needed as when the property is to be encumbered or alienated, the wife may go to court and ask for its permission to mortgage or sell the property (Article 96, Family Code of the Philippines).

Thus, your plan to sell the lot mentioned in your letter will require court intervention for the transaction to be valid, if consent of your husband is not available or not favorable.

On the other hand, since you are in need of support for your children, it is more logical to demand from your husband to fulfil this obligation. Otherwise, you may compel him to do so by filing an appropriate civil action in court. You may likewise file a criminal complaint against him for violation of Republic Act No. 9262 otherwise known as the Anti-Violence Against Women and Their Children Act of 2004 or Republic Act No. 7610 or the Special Protection of Children Against Abuse, Exploitation and Discrimination Act for your husband’s deliberate failure to give support to you and your children.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net    

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