Can You Restrict the Sale of Conjugal or Exclusive Property?

Spousal Consent and Annotation Rules in the Philippines

Why this matters

Whether a sale or mortgage of property is valid in the Philippines often turns on who owns the property (community/conjugal vs. exclusive) and whether the non-owner spouse consented. A misstep can void the deal, expose parties to litigation, or leave buyers holding worthless paper.

1) Know your property regime

Your default regime depends on when you married and on any marriage settlements (prenuptial agreement).

Family Code marriages (August 3, 1988 onward): Default is Absolute Community of Property (ACP) unless spouses agreed otherwise in a valid marriage settlement.
Civil Code marriages (before August 3, 1988): Default is Conjugal Partnership of Gains (CPG) unless changed by marriage settlement.
Agreed regimes:
- Complete Separation of Property (CSP)—each spouse owns, administers, and may dispose of his/her own property.
- Modified regimes crafted in a marriage settlement (subject to mandatory rules of law).

Key presumption: Property acquired during the marriage is presumed community/conjugal, even if titled to only one spouse, unless convincingly proven exclusive (e.g., acquired by donation or inheritance, or clearly purchased with exclusive funds under CPG).

2) What requires spousal consent?

A. Absolute Community of Property (ACP)

Administration: Joint.
Disposition/Encumbrance (sale, donation, mortgage, lease over one year, creation of real rights):
- Requires the written consent of the other spouse or prior court authorization if consent is unreasonably withheld, or spouse is absent, incapacitated, or refuses without just cause.
- Without consent/authorization: The disposition or encumbrance of community property is void.

B. Conjugal Partnership of Gains (CPG)

Administration: Joint (either spouse acts with the other’s consent).
Disposition/Encumbrance of conjugal property:
- Requires the other spouse’s written consent or court authorization.
- Without consent/authorization: The transaction is void.

C. Complete Separation of Property (CSP)

No spousal consent needed for the owner-spouse to sell or encumber his/her exclusive property, except for the family home and specific statutory exceptions (see §4).

D. Co-ownership in void/irregular unions (Arts. 147/148 principles)

If the marriage is void ab initio, properties acquired by both may be governed by co-ownership rules.
A co-owner can sell only his/her undivided ideal share; a purported sale of the entire property binds only the seller’s share unless all co-owners consent.

3) What counts as exclusive property?

ACP: Exclusive property includes (among others) assets acquired by gratuitous title (donation/inheritance) and property expressly excluded by law or by valid marriage settlement. Fruits/income generally fall into the community unless excluded.
CPG: Each spouse’s separate (paraphernal/capital) property remains exclusive; fruits/income during marriage typically belong to the conjugal partnership unless stipulated otherwise.
Proof matters: To overcome the “acquired-during-marriage” presumption, keep donation/inheritance documents, pre-marriage deeds, prenuptial agreement, and traceable funding records (e.g., bank proof showing exclusive funds).

4) Special consent rules and statutory carve-outs

Family Home:
- Whether constituted by operation of law or formally, alienation or encumbrance requires the consent of both spouses.
- Absent consent, a court may authorize the transaction for compelling reasons.
- Even with consent, the family home is exempt from execution except for specific obligations (e.g., purchase price, taxes, improvements, or debts secured by the home).
Judicial separation of property / legal separation:
- Upon final decree and proper recording/annotation, each spouse administers and disposes of his/her property without the other’s consent (subject to family home rules if applicable).
Necessitous acts; abandoned or incapacitated spouse:
- Courts may authorize one spouse to sell or encumber community/conjugal property when the other is absent, incapacitated, refuses without just cause, or abandons the family.
Donations between spouses:
- Generally void during marriage, except moderate gifts on family occasions or those made in the marriage settlements. This frequently surfaces when a “sale” between spouses is attacked as a disguised donation.
Movables vs. immovables:
- The consent/authorization rule covers both—it’s about disposition/encumbrance of community/conjugal property, regardless of type.

5) Effects if consent is missing

Transactions are void (not merely voidable) when the law requires spousal consent or court authorization and it was not obtained.
Good faith of the buyer or mortgagee does not cure the defect of lack of required consent.
Remedies:
- Spouse: action for nullity, reconveyance, and/or cancellation of encumbrance; annotate lis pendens to protect the claim on the title.
- Buyer/lender: restitution against the selling/mortgaging spouse; potential warranty claims.
Ratification? A later express written ratification by the non-consenting spouse (or valid court approval) can regularize a defective transaction only before third-party rights are prejudiced and if the law allows; but a void disposition generally cannot be ratified—parties typically need to re-execute a valid deed with proper consent or authorization.

6) Titling and annotation practice (Land Registration Authority / Registries of Deeds)

While the Family Code governs validity, registries apply documentary and annotation rules that make or break registration:

Marital status on title (“married to …”)
- This is a notice, not conclusive of co-ownership. Property in one spouse’s name may still be community/conjugal if acquired during marriage.
Deed requirements for registered land
- Conjugal/Community property: Deed must be signed by both spouses, or by one spouse plus a Special Power of Attorney (SPA) from the other specifically authorizing the disposition or encumbrance.
- If spouse is abroad: SPA should be acknowledged before a Philippine consul or apostilled and notarized per rules.
- If using court authorization: Attach the final, executory order authorizing the sale/mortgage.
Proving exclusivity to avoid spousal consent
- Registries typically require documentary proof before allowing a sale without the other spouse’s signature:
  - Marriage settlement (prenuptial) duly registered/annotated;
  - Deed of donation/inheritance identifying the buyer/donor and donee/heir;
  - Evidence of acquisition before marriage (prior TCT/CCT, deed, tax declarations);
  - Affidavit of exclusive ownership with supporting attachments.
- Even then, some registries still invite the non-owner spouse to sign “to avoid issues.” Legally unnecessary if truly exclusive, but practical to prevent later disputes.
Family home annotation
- If the parcel is the family home, the ROD will generally require the other spouse’s consent or court approval even if title appears in one name.
- Best practice: Annotate the family home in the title when first constituted to clarify status.
Key protective annotations
- Adverse Claim (to protect a claimant’s interest for a limited period if a transfer is imminent).
- Notice of Lis Pendens (if litigation is filed).
- Court orders / writs (injunctions, attachments) affecting the property.
- Decrees of legal separation or judicial separation of property (must be annotated to bind third persons).

7) Practical checklists

A. If you’re the seller (spouses under ACP/CPG)

Confirm the regime (marriage date; check for marriage settlement).
If property is community/conjugal:
- Prepare Deed of Absolute Sale/Mortgage signed by both spouses; or
- Secure a court authorization or a specific SPA from the non-signing spouse.
If you claim exclusivity: gather proof (deed of donation/inheritance, pre-marriage deed, annotated marriage settlement).
If family home: ensure both spouses’ consent or court authority.

B. If you’re the buyer or lender

Treat all assets acquired during the marriage as presumed community/conjugal unless the seller proves otherwise.
Require:
- Marital consent (both spouses sign) or SPA/court order;
- PSA marriage certificate (or CENOMAR where appropriate);
- Proof of exclusivity if only one spouse signs;
- Clean title and updated tax clearances;
- Confirm family home status (ask, inspect, and review occupancy).
If any doubt persists, withhold completion or escrow until compliance.

C. If consent is refused or spouse is unavailable

Petition the proper court for authorization to sell or encumber, showing:
- The transaction benefits the community/conjugal partnership or is necessary;
- The other spouse is absent, incapacitated, unreasonably withholding consent, or has abandoned the family.

8) Common pitfalls (and how to avoid them)

“Title is only in my name, so I can sell alone.” False if acquired during the marriage and not proven exclusive.
“Buyer in good faith will be protected.” Not against a void disposition for lack of spousal consent.
“Generic SPA is enough.” For registered land, the SPA should specifically describe the property and authorize sale/mortgage.
“We’ll fix it later with ratification.” If the law treats the act as void, ratification won’t cure it; execute a new valid deed.
“We’re separated in fact, so I can sell.” Separation in fact is not separation of property. You still need consent or court authority, unless and until a final decree (e.g., judicial separation of property) is annotated.

9) Frequently asked scenarios

Inherited house during marriage, in one spouse’s name: Generally exclusive to the heir. But if it’s the family home, both spouses’ consent (or court authorization) is still required to sell or mortgage.
Donated condominium to one spouse with a stipulation of exclusivity: Typically exclusive; attach the deed of donation. If the condo is not the family home, the donee-spouse may sell alone, provided the exclusivity is well-documented.
Loan secured by community land signed by only one spouse: Void mortgage absent the other spouse’s written consent or court authorization. Lender’s good faith doesn’t validate it.
Void marriage discovered after purchase: Property acquired together may be governed by co-ownership rules. A spouse can’t unilaterally sell the entire thing; only his/her share.

10) Takeaways

Identify the regime and assume conjugal/community for property acquired during marriage unless proven exclusive.
Written spousal consent or court authorization is the rule for ACP/CPG dispositions and family home transactions.
Lack of required consent usually makes the transaction void—not saved by buyer’s good faith.
Annotations (marriage settlement, decrees, family home, adverse claims, lis pendens) control third-party effects—record them.
When in doubt, document exclusivity or obtain court authority before signing.

Final note

This article provides a comprehensive overview for the Philippine setting. Specific facts (how and when the property was acquired, whether it is the family home, the exact regime, and what is annotated on the title) can change the conclusion. For high-value transactions, pair these rules with careful document review and, where needed, judicial authorization.