Conjugal property... for sale?

Q: Rene Cruz and Rosa Santos were married in 1980. During their marriage, they acquired a house and land in Laguna in 1982. The transfer certificate of title of the said property is registered in the name of Rene only. Is the Laguna property the exclusive property of Rene?

A: No, the Laguna property is conjugal.

Since Rene and Rosa were married prior to the effectivity of the Family Code, the conjugal partnership of gains shall govern their property relations. Under Article 160 of the Civil Code, “all property of the marriage is presumed to belong to the conjugal partnership, unless it can be proven that it pertains exclusively to the husband or to the wife.”

Registration of a property alone in the name of one spouse does not destroy its conjugal nature. What is material is the time when the property was acquired. The registration of the property is not conclusive evidence of the exclusive ownership of the husband or the wife. Although the property appears to be registered in the name of the husband, it has the inherent character of conjugal property if it was acquired for valuable consideration during marriage. (PNB vs. Garcia, et al., G.R. No. 182839, June 2, 2014)

Q: How can one rebut the presumptive conjugal nature of the Laguna property?

A: In order to rebut the presumptive conjugal nature of the property, the petitioner must present strong, clear and con- vincing evidence of exclusive ownership of one of the spouses. The burden of proving that the property belongs exclusively to the wife or to the husband rests upon the party asserting it. (PNB vs. Garcia, et al., G.R. No. 182839, June 2, 2014)

Q: Who between Rene and Rosa has the right to administer and enjoy the Laguna property.

A: Both of them have the right to the administration and enjoyment of the Laguna property. Art. 124 of the Family Code provides that the administration and enjoyment of the conjugal partnership shall belong to both spouses jointly.

Q: Whose decision will prevail in the event there is a disagreement as to administration of the property?

A: 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. (Art. 124, Family Code)

Q: Does administration include acts of disposition and encumbrance?

A: Administration do not include disposition or encumbrance. (Art. 124, Family Code)

Q: Rene wants to sell or mortgage the Laguna today. Can he validly sell or mortgage it without the consent of Rosa? A: No, he cannot validly sell or mortgage the property to a third party without the consent of Rosa. Although Rene and Rosa

were married in 1980, the sale of their conjugal property today would be governed by the Family Code which took effect on August 3, 1988.

Under the Family Code, without the other spouse’s written consent or a court order allowing the sale, the same would be void. (Article 124, Family Code; Fuentes vs. Roca, G.R. No. 178902, April 21, 2010) Q: What does it mean when one says that the sale is void?

A: A void or inexistent contract has no force and effect from the very beginning. And this rule applies to contracts that are declared void by positive provision of law, as in the case of a sale of conjugal property without the other spouse’s written consent. A void contract is equivalent to nothing and is absolutely wanting in civil effects. It cannot be validated either by ratification or prescription.

But, although a void contract has no legal effects even if no action is taken to set it aside, when any of its terms have been performed, an action to declare its inexistence is necessary to allow restitution of what has been given under it. This action, according to Article 1410 of the Civil Code does not prescribe. Therefore, the passage of time did not erode the right to bring such an action. (Fuentes vs. Roca, G.R. No. 178902, April 21, 2010) Q: What if Rene sold the

property without the consent of Rosa before August 3, 1988, the date of effectivity of the Family Code, is such sale likewise void?

A: No, sale is merely voidable. When Rene married Rosa, the Civil Code put in place the system of conjugal partnership of gains on their property relations. While Art. 165 of the Civil Code made Rene the sole administrator of the conjugal partnership, Article 166 prohibited him from selling commonly owned real property without his wife’s consent. Such sale, however, is not void but merely voidable. Article 173 of the Civil Code gave Rosa the right to have the sale annulled during the marriage within ten years from the date of the sale. Failing in that, she or her heirs may demand, after dissolution of the marriage, only the value of the property that Rene fraudulently sold. (Fuentes vs. Roca, G.R. No. 178902, April 21, 2010)

Q: Can Rosa donate the Laguna property to her sister without Rene’s consent?

A: No. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress. (Art. 125, Family Code)

Q: Will the nature of the Laguna property change if Rene leaves Rosa and their children without justifiable cause? A: The separation in fact between husband and wife shall

not affect the regime of conjugal partnership (Art . 127, Family Code). Hence, the lot retains its conjugal nature even with the separation in fact of Rene and Rosa. Thus, it should not prejudice the rights of the parties over it. (Villanueva vs. Chiong, G.R. No. 159889, June 5, 2008)

Q: Rosa wants to sell the property in order to meet the needs of the children. Rene, however, unjustifiably refuses to give his consent to the sale thereof. What legal remedy is available to Rosa?

A: Rosa can file a petition in court seeking judicial authorization for the transaction. Under Art. 239 of the Family Code provides that when a husband and wife are separated in fact, or one has abandoned the other and one of them seeks judicial authorization for a transaction where the consent of the other spouse is required by law but such consent is withheld or cannot be obtained, a verified petition may be filed in court alleging the foregoing facts.

The petition shall attach the proposed deed, if any, embodying the transaction, and, if none, shall describe in detail the said transaction and state the reason why the required consent thereto cannot be secured. In any case, the final deed duly executed by the parties shall be submitted to and approved by the court.

Ma. Soledad Deriquito-Mawis is currently the Dean of College of Law Lyceum of the Philippines University; and President of Philippine Association of Law Schools