• Nullifying a contract of donation

    Persida Acosta

    Persida Acosta

    Dear PAO,
    I just learned that my husband is keeping a mistress who used to be his secretary. I feel so betrayed. Before I knew about this deception, I even signed my consent for my husband to give her a small apartment because he said that she and her family lost their house.

    Can I still have that contract invalidated? Can I also file a case against them? My friend told me that she still sees them together in that apartment. I hope you can help me.

    Dear Angelica,
    As a general rule, any person who is capacitated to enter into a contract and to dispose of his or her property may make a donation (Article 725, New Civil Code of the Philippines or NCC). Such a contract between the parties is perfected the moment the donor obtains knowledge of the acceptance by the donee of such a donation (Article 734, NCC).

    In the situation you presented before us, we do not discount the fact that a contract of donation transpired between your husband and his former secretary as it appears from the tenor of your letter that the property was given to the latter gratuitously or without any monetary consideration on the part of your husband.

    However, such a contract may be invalidated by filing an action in court to declare the same as null and void. It is, nevertheless, worth emphasizing that it is essential for you to establish that the donee is indeed your husband’s concubine and that the deed of donation was executed during the subsistence of their illicit relationship. It is clearly provided for under Article 739 of the NCC 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)

    You may also consider filing a complaint for concubinage against them should you be able to concretely determine that they are cohabiting in the apartment or that they are having a sexual relationship under scandalous circumstances. Pursuant to Article 334 of the Revised Penal Code (RPC), “Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods. x x x The concubine shall suffer the penalty of destierro.”

    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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