• Married man can’t donate property to his mistress

    Persida Acosta

    Persida Acosta

    Dear PAO,
    I have a live-in partner who is still married to his wife. He acquired a property while he was still living with his wife and children. The title to the property appears under his name, but also indicates the name of his wife. They had been separated even before we met.

    Just last month, our house caught fire and we now have to renovate it. I am planning to secure a loan from a bank for the renovation needed, but I was asked to present a titled property as collateral for such loan. I talked to my live-in partner and he said he is willing to give me the property, so that I can have it transferred under my name and use as collateral. Is it possible for him to do it without his wife’s knowledge or consent?

    Dear Nina45,
    Based on the facts that you have shared with us and in the absence of a valid marriage settlement, it appears that the property which your live-in partner intends to give you forms part of his and his wife’s community property. Accordingly, he cannot simply give or transfer the ownership of such property without the consent of his wife or authority from the court. As provided for under the Family Code of the Philippines:

    “Art. 96. The administration and enjoyment of the community property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

    In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common pieces of property, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition or encumbrance shall be void.

    The transaction, however, shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

    x x x

    Art. 98. Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress.” (Emphasis supplied)

    Moreover, your live-in partner is prohibited from donating a property to you considering that your relationship with him is illicit and frowned upon under our law. Thus, even if he gives it to you with the knowledge or consent of his wife, such transfer remains null and void. It is specifically provided for under Article 739 of the New Civil Code that:

    “The following donations shall be void: (1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office. x x x” (Emphasis supplied)

    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@manilatimes.net


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