Marital Consent Requirements for Selling Donated Property in the Philippines
(A practitioner-oriented survey of statutes, jurisprudence, and practice)
1. Key Concepts and Statutory Sources
| Concept | Core Statute | Brief Note |
|---|---|---|
| Donated (gratuitously-acquired) property | Family Code (FC) art. 92 (1) (Absolute Community of Property regime) / art. 109 (CPG) | Property acquired by either spouse “by gratuitous title”—donation, succession, or legacy—is exclusive property of the donee spouse unless the donor/testator expressly declares it to form part of the community or conjugal partnership. |
| Property regimes | FC Title IV (Property Relations) | a) Absolute Community of Property (ACP) - default for marriages celebrated on or after 3 Aug 1988. b) Conjugal Partnership of Gains (CPG) - default before that date or if spouses so agree. c) Complete Separation of Property or other regimes by marriage settlement (FC art. 134). |
| Spousal administration & consent rules | FC arts. 96 (ACP); 124 (CPG); 111 & 133 (exclusive property); 159 (Family Home) | Spell out when written marital consent is indispensable for acts of strict ownership (sale, mortgage, donation, long-term lease) and the effect of its absence. |
| Donor’s anti-alienation clause | Civil Code (CC) art. 873 | Donor may prohibit alienation for up to 20 years; beyond that, the restraint is void. |
| Contracts without required consent | FC arts. 96 & 124 (void); CC arts. 1390–1397 (voidable) | SC case law treats sales that violate arts. 96/124 as void, not merely voidable. |
| Family home | FC arts. 152–162 | Regardless of ownership, sale/mortgage of the family home needs written consent of both spouses (art. 159). |
2. How the Property Regime Determines the Consent Rule
Absolute Community of Property (ACP) Default since 1988 where the parties did not execute a marriage settlement.
Classification: A donation to only one spouse remains exclusive (art. 92 [1]).
Sale of exclusive property: The owning spouse alone may sell unless the property:
- a) has become the family home (art. 159); or
- b) is being donated/sold to a third person to guarantee the personal obligation of the other spouse (art. 111).
Sale of donated property that the donor declared common: Once expressly included in the community, the property is ACP: written consent of the other spouse is indispensable (art. 96, last ¶).
Conjugal Partnership of Gains (CPG) Statutory default before 3 Aug 1988 or if chosen in a marriage settlement.
Gratuitous acquisitions are paraphernal/exclusive (FC art. 109).
Conjugal consent rules mirror those in ACP (art. 124). Thus:
- If the donor directed that the donation accrue to the partnership, the thing sold is conjugal; both spouses must sign or contract is void.
- If the donation is silent, the property is exclusive; the owning spouse may sell alone (subject again to art. 159 on the family home and art. 111 for guaranty of the other spouse’s debts).
Complete Separation of Property or Other Agreed Regime
- By marriage settlement (FC arts. 134–135) the parties may dispense with consent requirements for each spouse’s separate property.
- Exception: family-home consent (art. 159) still applies.
3. The Family Home Exception
Even if the donated property is exclusive, Philippine law protects the family home:
| Scenario | Consent Requirement |
|---|---|
| Selling/mortgaging the land or building constituting the family home (arts. 152–162 FC) | Written consent of both spouses (art. 159) always needed, irrespective of ownership or property regime. |
| Creation or cancellation of encumbrances (e.g., real-estate mortgage) over the family home | Same requirement; annotation on the title will be refused by the Register of Deeds without both signatures. |
4. Donor-Imposed Restraints & Superseding Approval
Time-bound restriction (max 20 yrs): CC art. 873 allows donor to forbid alienation for up to twenty years.
- In practice, the restraint is annotated on the Transfer Certificate of Title (TCT) or embodied in the deed.
- No spousal consent can override an in-force restraint; a deed of sale in breach is void.
Donor’s right of approval: The donor may make consent/approval a condition precedent to a sale (CC arts. 1181-1184). Spouses must secure that approval in addition to any spousal consent mandated by marital-property rules.
5. Jurisprudential Highlights
| Case | G.R. No. / Date | Take-away |
|---|---|---|
| Spouses Abalos v. Heirs of Gomez | 158989 • Oct 20 2006 | Sale of conjugal land without wife’s signature is void; good-faith purchaser doctrine does not apply where the TCT itself shows conjugal ownership. |
| Tuazon v. Heirs of Reyes | 167696 • March 21 2011 | Community property sold by husband alone void; subsequent ratification by wife cures the defect only through a new deed signed by both. |
| Vda. de Consuegra v. Court of Appeals | L-51114 • Aug 26 1985 | (Pre-Family Code) Recognized donor’s twenty-year non-alienation clause as valid; sale made within prohibited period declared inexistent. |
| Heirs of Malate v. Gamboa | 179988 • Feb 1 2012 | Clarified that property gratuitously acquired is exclusive; sale by donee-wife without husband’s consent is valid (art. 109) because conjugal rules do not apply. |
| Cabales v. Court of Appeals | 78214 • Aug 10 1993 | Even after void sale of conjugal land, only the non-consenting spouse may sue for annulment; action prescribes in five years from discovery under art. 1391 (if voidable). |
(Citations above are illustrative; verify current jurisprudence when litigating.)
6. Documentary & Registry Practice
Form of consent
- Best practice: let the non-owning spouse sign the Deed of Absolute Sale itself, preceded by “With my marital consent:” and his/her name.
- Alternative: a notarized Special Power of Attorney (SPA) or written marital consent, attached to the deed.
Notarial and registry requirements
- The Register of Deeds will refuse registration of a deed involving conjugal/community property unless marital consent (or SPA) is presented.
- Some registries demand an Affidavit of Property Relation to establish that the land is exclusive (e.g., paraphernal) to justify absence of spouse’s signature.
Dealing with donated property under restraint
- Secure donor’s written waiver or allow the restraint period to lapse.
- Annotate the lifting of the restraint on the TCT before executing the sale.
7. Consequences of Non-Compliance
| Situation | Legal Effect | Remedies |
|---|---|---|
| Sale of community/conjugal donated property without written consent | Void (FC arts. 96, 124) | ① Spouses may ratify by executing a new deed; ② Innocent buyer may sue seller for breach of warranties; ③ Petition to cancel title in buyer’s name. |
| Sale of exclusive donated property by donee spouse alone | Valid, unless family-home exception or donor’s restraint applies. | — |
| Sale in violation of donation’s anti-alienation clause | Void/Inexistent (CC arts. 873, 1181) | Action to annul imprescriptible; donor or heirs may recover property. |
| Mortgage of family home by one spouse alone | Void (FC art. 159) | Cancellation of mortgage; possible damages vs. mortgagee in bad faith. |
8. Practical Guidance for Lawyers & Conveyancers
Check the chain of title
- Verify whether the property traces back to a Deed of Donation and read any conditions.
- Confirm if donor expressly included the property in the community or partnership.
Ascertain the spouses’ property regime
- Examine the marriage date and any pre-nup recorded in the civil registry.
Identify family-home status
- Ask for barangay tax declarations, occupancy, and SSS/HDMF records; annotate if the home is being sold.
Secure all necessary consents upfront
Draft a unified deed bearing:
- Signatures of both spouses (or owning spouse + marital consent clause);
- Donor’s written approval if still within restraint period;
- Family-home consent clause;
- SPA if a spouse signs through an attorney-in-fact.
Annotate or cancel restraints
- Prepare a Petition for Cancellation of Encumbrance once donor withdraws the restraint or period lapses.
Warn buyers and lenders
- Insert warranties and indemnity clauses; require Affidavit of Marital Status and Certificate Authorizing Registration (CAR) to avoid tax and consent issues later.
9. Conclusion
The need for marital consent when selling donated property in the Philippines hinges on three variables: (1) how the donation was classified, (2) the governing marital-property regime, and (3) any statutory or donor-imposed exceptions (family home, anti-alienation clause, guaranty for the other spouse’s debts).
Failing to obtain the proper consent renders a deed void and exposes the parties to costly litigation. Conversely, understanding the nuanced interplay of Family-Code provisions, Civil-Code restraints, and recent Supreme Court pronouncements enables practitioners and spouses alike to transfer donated property with confidence and finality.