I am separated from my wife for more than 10 years now and I have a live-in partner. Since I am still married, any property that I buy is co-owned by my wife. This time, I want to buy for my live-in partner a property to be declared under her name. She is single and the immediate members of her family are all American citizens now. My question is: Can I execute an affidavit stating in effect that if she passes away ahead of me I have the authority to dispose the said property?
Thank you and more power.
The law that is applicable to your query is the law that governs “donation”. Donation is defined as an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it (Article 725, Civil Code of the Philippines). It is understood that it is a contract, the consideration of which is the liberality or generosity of the donor. In donation, there are persons who are not allowed to make donations to each other by reason of moral considerations. Included among the persons prohibited by law to make donation are those who are guilty of adultery or concubinage at the time of the donation.
Article 739 of the Civil Code provides that:
“The following donations shall be void:
(1) Those made between persons who are guilty of adultery or concubinage at the time of donation; xxx”
For all intents and purposes, even if you have been separated from your wife for almost ten (10) years, you are still married to her because your marriage has not been severed. Your relationship with your live-in partner now is not legal. It could be classified as an act constituting the crime of concubinage. Any man who cohabits or has sexual intercourse with a woman other than his wife may be charged of concubinage which is defined and punished under Article 334 of the Revised Penal Code as follows:
“Article 334. Concubinage.
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.
The concubine shall suffer the penalty of destierro.”
From the foregoing provisions, you cannot validly buy any property and donate it in favor of your live-in partner or have it named in her favor because the law prohibits you to do so. Any action on your part of making any donation to your live-in partner is void and has no force and effect.
Anent your query if you can execute an affidavit to the effect that in case your live-in partner passes away ahead of you, you have the authority to dispose the property you will buy for her, the same cannot be done. If you cannot validly donate a property in favor of your live-in partner during the subsistence of your marriage to another woman because of moral considerations, you cannot also be an heir to her estate if she passes away because your relationship is still considered as illicit.
We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts that 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 firstname.lastname@example.org