• Wife’s consent not needed in husband’s mortgaging of his exclusive property

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    Can a husband mortgage his exclusive property without the consent of his wife? They were married in 1985 but got separated ten years later. The husband is in dire need of money.
    Pedro

    Dear Pedro,
    Since the husband and wife mentioned in your letter were married before the effectivity of the Family Code of the Philippines, provisions of the New Civil Code of the Philippines apply to them as to what regime governs their property relations. Assuming that there was no ante-nuptial agreement between the two, their property relation is under the regime of conjugal partnership of gains (Article 105, Family Code of the Philippines).

    Under the aforesaid system, pieces of property separately owned by the husband and wife prior to their marriage shall be exclusively owned by them as well as those that they may obtain through gratuitous title during their marriage or acquired through purchase with the exclusive money of each of them. This is according to Article 9 of the Family Code of the Philippines, which provides:

    “Art. 109. The following shall be the exclusive property of each spouse:

    (1) That which is brought to the marriage as his or her own;

    (2) That which each acquires during the marriage by gratuitous title;

    (3) That which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and

    (4) That which is purchased with the exclusive money of the wife or of the husband.”

    Also, under the regime of conjugal partnership of gains, either spouse may mortgage his or her exclusive property without the consent of the other spouse. This is explicitly expressed by Article 111 of the same Code, to wit:

    “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.”

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