Introduction

In the Philippine legal system, marriage establishes not only personal bonds but also property relations between spouses. The Family Code of the Philippines (Executive Order No. 209, as amended), which took effect on August 3, 1988, governs these relations. One common regime is the Conjugal Partnership of Gains (CPG), often referred to colloquially as involving "conjugal property." Under this regime, properties acquired during the marriage through the spouses' efforts or by chance are considered conjugal, belonging equally to both spouses.

A key issue arises when one spouse seeks to sell or dispose of such property, particularly in cases of marital discord leading to separation. Separation here typically refers to de facto separation (spouses living apart without a court decree) rather than legal separation, annulment, or nullity of marriage. This article explores whether spousal consent is required for selling conjugal property when spouses are separated, examining the legal framework, requirements, exceptions, and consequences under Philippine law.

Property Regimes Under the Family Code

To understand the rules on selling conjugal property, it is essential to distinguish the applicable property regime. The Family Code provides three main regimes:

Absolute Community of Property (ACP): This is the default regime for marriages celebrated after August 3, 1988, unless the spouses agree otherwise in a prenuptial agreement. All properties owned by the spouses at the time of marriage and those acquired thereafter form part of the community, excluding certain exceptions like properties acquired by gratuitous title.
Conjugal Partnership of Gains (CPG): Applicable to marriages before August 3, 1988, or if chosen via prenuptial agreement for later marriages. Only properties acquired onerously during the marriage are conjugal; pre-marital properties and those acquired by donation or inheritance remain separate.
Complete Separation of Property: This may be agreed upon prenuptially or judicially decreed during marriage for valid reasons, such as mismanagement.

The term "conjugal property" primarily pertains to the CPG regime but is often used loosely to refer to shared marital assets under ACP as well. The rules on disposition are similar across ACP and CPG, with Articles 96 and 124 of the Family Code providing parallel provisions. For brevity, this article focuses on CPG but notes similarities with ACP.

Requirement of Spousal Consent for Disposition

Under Article 124 of the Family Code (for CPG), the administration and enjoyment of the conjugal partnership property belong jointly to both spouses. However, the disposition or encumbrance of conjugal property requires the written consent of the other spouse. If such consent is withheld without just cause, the aggrieved spouse may petition the court for authorization.

Similarly, Article 96 for ACP states that the administration belongs to either spouse, but acts of disposition or encumbrance require the written consent of the other spouse or judicial approval if consent is refused.

"Disposition" includes selling, donating, mortgaging, or any act that transfers ownership or creates a burden on the property. This requirement protects the interests of both spouses and prevents unilateral actions that could prejudice the family.

Philippine jurisprudence reinforces this. In cases like Homeowners Savings & Loan Bank v. Dailo (G.R. No. 153802, March 11, 2005), the Supreme Court held that a sale of conjugal property without the spouse's consent is void, not merely voidable, emphasizing the mandatory nature of consent.

Impact of De Facto Separation on Spousal Consent

De facto separation—where spouses live apart without dissolving the marriage—does not automatically terminate the property regime or waive the consent requirement. Article 100 (for ACP) and Article 128 (for CPG) explicitly state that separation in fact between husband and wife shall not affect the regime of absolute community or conjugal partnership.

Thus, even if spouses are separated, the consent of the absent or estranged spouse is still required for selling conjugal property. The law presumes the continuation of joint administration unless a court intervenes.

However, separation can influence practical enforcement. If one spouse has abandoned the family or left without just cause, the remaining spouse may have grounds to seek judicial remedies. Article 101 (ACP) and Article 128 (CPG) provide that if a spouse abandons the other without just cause or fails to comply with obligations, the aggrieved spouse may petition the court for receivership, judicial separation of property, or authority to be the sole administrator.

In Partosa-Jo v. Court of Appeals (G.R. No. 82606, December 18, 1992), the Court clarified that abandonment must be proven, involving not just physical separation but also intent to forsake marital obligations.

Exceptions to the Spousal Consent Requirement

While consent is generally mandatory, certain exceptions apply:

Judicial Authorization: If the other spouse unjustifiably withholds consent, is absent, or has abandoned the family, the selling spouse can obtain court approval. This requires filing a petition in court, proving the necessity of the sale (e.g., for family support), and demonstrating good faith.
Separate Property: If the property is exclusively owned by one spouse (e.g., acquired before marriage under CPG or by donation), no consent is needed. However, proving this may require evidence like titles or deeds.
Urgent Necessity: In rare cases of imminent danger to the family (e.g., medical emergencies), a spouse may act unilaterally, but this is subject to subsequent ratification or court validation.
Legal Separation or Annulment: If the marriage is legally separated (under Article 55-67 of the Family Code), the property regime is terminated, and properties are liquidated. Post-separation, each spouse manages their share independently. However, during pendency, consent may still be required unless the court orders otherwise.
Nullity of Marriage: If the marriage is declared void ab initio, the property regime is dissolved retroactively, and properties are divided as if no marriage occurred, following rules on co-ownership.

Note that the Philippines does not recognize divorce (except for Muslims under the Code of Muslim Personal Laws), so separation does not equate to divorce. Annulment or declaration of nullity are the primary ways to end a marriage.

Consequences of Selling Without Consent

A sale without the required spousal consent has severe repercussions:

Void or Voidable Contract: Under prevailing jurisprudence (Guiang v. Court of Appeals, G.R. No. 125172, June 20, 2002), such a sale is void as to the non-consenting spouse's share. The buyer acquires ownership only over the selling spouse's half, subject to partition.
Liability of the Selling Spouse: The erring spouse may be held liable for damages or face criminal charges if fraud is involved (e.g., estafa under the Revised Penal Code).
Rights of Innocent Third Parties: If the buyer acted in good faith (e.g., unaware of the marital status), they may be protected under Article 1535 of the Civil Code, but the non-consenting spouse can still recover their share.
Family Home Protection: The family home, considered conjugal property, enjoys additional safeguards under Articles 152-162 of the Family Code. It cannot be sold without the written consent of the spouse and a majority of beneficiaries of legal age, or court approval if consent is lacking.

In Fuentes v. Roca (G.R. No. 178902, April 21, 2010), the Court voided a sale of the family home without spousal consent, underscoring its inalienability without safeguards.

Procedural Aspects: How to Proceed Legally

If separated and intending to sell:

Attempt to Obtain Consent: Document efforts to secure written consent, such as through notarized agreements.
File a Petition: If consent is refused, petition the Regional Trial Court for authorization, providing evidence of separation, abandonment, or necessity.
Inventory and Appraisal: Courts may require an inventory of conjugal assets to ensure fairness.
Partition After Termination: Upon legal separation, annulment, or death, conjugal properties are liquidated under Articles 102-104 (ACP) or 129-131 (CPG), with equal sharing unless otherwise proven.

Special Considerations

Foreign Elements: If one spouse is a foreigner, Article 26 of the Family Code applies, but property rules follow Philippine law if the property is in the Philippines.
Prenuptial Agreements: These can modify regimes, potentially allowing unilateral disposition if stipulated.
Tax Implications: Sales may incur capital gains tax (6% under the Tax Code), donor's tax if gratuitous, or estate tax upon death.
Jurisprudence Evolution: Supreme Court decisions continually interpret these provisions, emphasizing protection of the non-consenting spouse and family interests.

Conclusion

In summary, under Philippine law, spousal consent is generally required for selling conjugal property, even if spouses are de facto separated. Separation does not dissolve the property regime, and unilateral actions risk invalidating the transaction. Exceptions exist through judicial intervention, particularly in cases of abandonment or necessity. Spouses facing such situations should consult legal counsel to navigate petitions, ensure compliance, and protect rights. This framework upholds the Family Code's goal of preserving marital harmony and family welfare.