• Sale of property by husband after separation from wife


    Persida Acosta

    Dear PAO,
    My husband and I got married in 1972. We got separated in 2000 because of irreconcilable differences, and I also discovered that he was keeping a mistress in a nearby municipality. In 2010, he sold the house and lot where we resided with our children. The sale took place despite my objection. According to him, the money he used to buy the property came from his bank deposits that he saved when he was still single. I would like to know if I have any right over the property sold by my husband.

    Dear Dolly,
    The property sold by your husband is a conjugal property. The law governing your marriage at the time is the old Civil Code of the Philippines. Under Article 119 of the code, “the future spouses may in the marriage settlements agree upon absolute community or relative community of property, or upon complete separation of property, or upon any other regime. In the absence of marriage settlements, or when the same are void, the system of relative community or conjugal partnership of gains as established in this code, shall govern the property relations between the husband and wife.” (Emphasis supplied)

    Article 143 of the same law states that “all property of the conjugal partnership of gains is owned in common by the husband and wife.” Under Article 166 of the Civil Code of the Philippines, it is also provided that “unless the wife has been declared a non compos mentis or a spendthrift, or is under civil interdiction or is confined in a leprosarium, the husband cannot alienate or encumber any real property of the conjugal partnership without the wife’s consent. If she refuses unreasonably to give her consent, the court may compel her to grant the same. Xxx xxx.” Thus, the consent of the wife is necessary with respect to the disposition of the conjugal property.

    It is important, however, to emphasize that the sale of the property belonging to the conjugal partnership of gains took place in 2010 when the governing law is the Family Code of the Philippines. Please be guided by the decision of the court in the case entitled Spouses Ravina vs. Abrille et al. (G.R. No. 160708, October 16, 2009), where the Supreme Court through former Associate Justice Leonardo Quisumbing stated:
    “Significantly, a sale or encumbrance of conjugal property concluded after the effectivity of the Family Code on August 3, 1988, is governed by Article 124 of the same Ccde that now treats such a disposition to be void if done (a) without the consent of both the husband and the wife, or (b) in case of one spouse’s inability, the authority of the court. Article 124 of the Family Code, the governing law at the time that the assailed sale was contracted, is explicit:

    ART. 124. The administration and enjoyment of the conjugal partnership 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.

    If one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal property, the other spouse may assume sole powers of administration. These powers do not include the powers of disposition or encumbrance that must have the 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” (Emphasis supplied).

    Applying the above-cited decision to your situation, the alienation made by your husband without your written consent is void; hence, you may file an action for annulment of sale in order to recover the property.

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