Dear PAO,
My parents got married in 1985 in a civil wedding officiated by a judge. Ten years after their wedding, they got separated because my father abandoned us for another woman.

My father died last year and we found out that he donated the property he inherited from his parents in 1990 to his live-in partner. The title of the said property was transferred in the name of the other woman. Is there a possibility that we can recover the property?
Tilda

Dear Tilda,
Under the law, the property relation of your parents was under the regime of Conjugal Partnership of Gains. Thus, the property inherited by your father was his exclusive property. The law likewise provides that he may dispose of this property even without the consent of your mother. This is in accordance with Article 111 of the Family Code of the Philippines which states:

“Art. 111. A spouse of age may mortgage, encumber, alienate or otherwise dispose of his or her exclusive property, without the consent of the other spouse, and appear alone in court to litigate with regard to the same.”

Nevertheless, your father was not entitled to dispose of his exclusive properties in contravention of the law. The mentioned donation if made in favor of his mistress during their cohabitation is null and void. Article 739 of the New Civil Code provides:

“Art. 739. The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;

xxx

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action.”

Since the donation is null and void, your father still owns the property. Considering however that he is already dead, the ownership of the same shall pass to his heirs. However, before this can be realized, your mother must file an appropriate action in court praying for the declaration of nullity of the said donation and the cancellation of the title in the name of your father’s mistress.

Your father and his mistress need not be found to be guilty of adultery or concubinage in a criminal case before the above provision takes effect. It is enough to prove the same in the civil action for declaration of nullity of the donation by preponderance of evidence.

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 This email address is being protected from spambots. You need JavaScript enabled to view it.