1) Why this topic matters

In the Philippines, many properties acquired during marriage are not owned “half-and-half” in the casual sense people use. They may form part of a property regime governed by the Family Code. That regime controls who can sell, what consent is required, and what happens if one spouse refuses, is missing, is abroad, or the spouses are separated in fact.

A recurring misconception is: “We’re separated, so I can sell my share.” For most married couples, that is not how the law treats family property during the marriage.

2) Identify the governing property regime first

A. Absolute Community of Property (ACP) — the default for most marriages

If spouses married on or after August 3, 1988 (effectivity of the Family Code) and did not sign a valid marriage settlement (prenup) choosing another regime, the default is usually ACP.

General effect: Almost all property owned by either spouse before the marriage and acquired during the marriage becomes community property, subject to statutory exceptions (e.g., certain gratuitous acquisitions with conditions, personal and exclusive property, etc.).

B. Conjugal Partnership of Gains (CPG) — common for older marriages or where chosen by settlement

If spouses married before August 3, 1988, CPG commonly applies (especially if there was no contrary settlement and depending on transitional rules). CPG can also apply if it was validly chosen.

General effect: Property acquired during the marriage is generally conjugal; each spouse’s exclusive property remains exclusive, but the partnership shares in the fruits/income and gains.

C. Separation of Property — only if validly agreed or judicially ordered

If there is a valid marriage settlement or judicial separation of property, then each spouse may generally dispose of their own property (but watch for family home rules and other special protections).

Bottom line: Whether you call it “conjugal” in everyday language, the correct legal consequences depend on whether the property is under ACP, CPG, or separation of property.

3) What counts as “conjugal property” (practical markers)

For many couples, the property being sold is a house and lot bought during marriage and titled in one spouse’s name or both.

If acquired during the marriage for a price (sale, installment, bank financing), it is commonly community/conjugal, even if only one spouse’s name is on the title.
If acquired before marriage, it might still become part of ACP (with exceptions), but under CPG it’s more likely exclusive, with the partnership possibly having reimbursement claims depending on improvements, payments, etc.
Property acquired by inheritance/donation is often exclusive, but this depends on conditions and the regime.

Because title does not always reflect the true regime, the risk is that a spouse sells property titled solely in their name, only for the buyer to later discover it is community/conjugal and the sale is defective.

4) The core rule: disposition generally requires both spouses’ authority/consent

A. During the marriage, administration is joint in substance

Under both ACP and CPG, the administration and enjoyment of the property belongs to both spouses. One spouse cannot validly dispose of community/conjugal property as though it were solely theirs.

B. Sales, mortgages, and other encumbrances typically require:

Both spouses’ signatures on the deed (e.g., Deed of Absolute Sale, Deed of Real Estate Mortgage), or
A lawful substitute for personal signature (e.g., SPA from the absent spouse), or
In specific situations, court authority.

C. “Separated” does not mean “single”

De facto separation (living apart) does not dissolve the marriage nor automatically dissolve ACP/CPG. Unless there is:

Annulment/nullity (with final judgment and liquidation), or
Legal separation (with final judgment and liquidation), or
Judicial separation of property, or
Another legally recognized change in regime,

the spousal consent rules remain.

5) If one spouse is abroad: how consent is commonly given

A. Special Power of Attorney (SPA)

The usual solution is for the spouse abroad to execute an SPA authorizing the other spouse (or a trusted representative) to sell a specific property.

Key features of a sale SPA (best practice):

Full names, citizenship, civil status, and addresses of spouses and attorney-in-fact.
Precise property description (TCT/CCT number, location, lot area, technical description).
Clear authority: to sell, sign the deed, receive payment, sign tax forms, and process transfer at BIR/LGU/Registry of Deeds.
Price terms: either fixed minimum price or authority to negotiate within parameters (buyers often want a minimum).
Authority to sign ancillary documents: eCAR processing, CAR/eCAR, DST/CGT docs, real property tax clearances, condominium management clearances, etc.

B. Consular notarization (“acknowledgment”) at a Philippine Embassy/Consulate

If executed abroad, an SPA typically needs to be properly acknowledged. A Philippine Embassy/Consulate can notarize/acknowledge it so it is recognized in the Philippines without further authentication steps.

C. Notarization before a foreign notary + apostille

If the spouse executes the SPA before a foreign notary public, the document is often made usable in the Philippines by an apostille under the Apostille Convention (for countries that are parties). If the country is not covered, older authentication processes may apply.

D. The spouse abroad can also sign the deed itself

Instead of an SPA, the spouse abroad may sign the Deed of Absolute Sale (and other required documents) abroad, then have it consularized or apostilled as appropriate. This can be more cumbersome if multiple original documents are required.

6) When consent is missing: what happens to the sale?

A. A deed signed by only one spouse is legally risky

Where spousal consent is required, a sale executed without the other spouse’s required consent/authority is not reliably enforceable against the community/conjugal property. In practice, it can be attacked and can fail registration or be annulled/invalidated depending on the facts, the regime, and the nature of the property.

B. Registries and banks typically require spousal conformity

Even before reaching court, a buyer may be blocked at the Register of Deeds, or by a bank if financing is involved, because the due diligence checklist commonly requires:

Marriage certificate (to determine marital status),
Spousal consent or SPA,
Proof of regime or applicable documents.

C. Good faith of buyer is not a cure-all

A buyer’s “good faith” does not automatically validate a sale that lacked legally required consent. The safest path is to secure proper spousal authority before payment and transfer.

7) If the spouse abroad refuses to consent

A. There is no general “automatic right” to sell despite refusal

If the property is community/conjugal and the spouse refuses, the other spouse generally cannot simply proceed unilaterally.

B. Court authority may be possible in limited situations

Philippine family property rules recognize scenarios where one spouse cannot participate (e.g., incapacity, absence, refusal without just cause, abandonment). In such cases, the remedy is often to petition the court for authority or for an appropriate family-law relief (depending on the specific legal ground and the applicable regime provisions).

Practical point: Courts do not grant authority just because a sale is convenient. The petitioner typically must show:

The transaction is necessary, beneficial, or in the family’s interest, and
The other spouse’s refusal is unjustified or participation is impossible.

C. Alternative legal routes

Depending on circumstances, parties may consider:

Judicial separation of property (when statutory grounds exist), then liquidation of the regime,
Legal separation (where grounds exist) leading to separation and liquidation,
Nullity/annulment (where grounds exist) followed by liquidation,
Partition/liquidation proceedings after dissolution of the regime.

These are heavier processes and are fact-specific; they are not interchangeable and require legally recognized grounds.

8) If the spouse is unreachable, missing, or allegedly “abandoned”

A. Absence is not the same as being abroad

A spouse “abroad” but reachable can usually give consent by SPA. A spouse who is missing/unreachable creates different issues.

B. Judicial remedies may include:

Petition for authority to administer/dispose (under family property provisions applicable to the regime),
Proceedings related to declaration of absence/presumptive death in extreme situations (which has its own requirements and is not a shortcut for sales),
Appointment of a representative/administrator in proper cases.

Courts are cautious: property rights of the missing spouse are protected, and any disposition is scrutinized.

9) “Separated in fact” vs. legal separation vs. annulment/nullity: effect on property

A. De facto separation (living apart)

Marriage remains.
ACP/CPG generally remains.
Spousal consent/authority rules generally remain.

B. Legal separation (with final judgment)

Marriage bond remains (spouses cannot remarry).
Property regime is typically dissolved and liquidated as part of the legal consequences.
After liquidation and partition, each party may dispose of property awarded to them, subject to the terms of the judgment and registration.

C. Annulment or declaration of nullity (with final judgment)

Marriage is dissolved (annulment: voidable marriage; nullity: void from the beginning).
Property relations are settled under applicable rules and must be liquidated.
Only after liquidation/partition and proper titling can a party freely sell property awarded to them.

Important: Even with a final judgment, selling property still requires ensuring the property has been properly adjudicated and titled/registered according to the liquidation.

10) Family Home considerations: additional protections

If the property is the family home, it can have special protections. While the family home is generally exempt from execution by creditors (with exceptions), dispositions still require compliance with spousal consent rules and, in some contexts, may trigger heightened scrutiny because the law protects the family dwelling.

Even when spouses are separated in fact, a property may still be treated as the family home depending on occupancy and family circumstances.

11) Common transaction structures and what they require

A. Direct sale to buyer (cleanest)

Documents commonly required:

Owner’s duplicate title (TCT/CCT)
Tax declaration
Latest real property tax receipt / tax clearance
Marriage certificate
Government IDs
Deed of Absolute Sale with both spouses signing (or one spouse + SPA)
BIR requirements for eCAR processing
Condo clearance (if condominium), HOA clearance (if subdivision), etc.

B. One spouse as seller; other spouse gives “marital consent”

Sometimes deeds are structured with the titled spouse as “seller” and the other spouse as providing “marital consent.” This can be acceptable if it clearly reflects consent and is properly acknowledged, but many practitioners prefer both as sellers (especially for community/conjugal property) to reduce disputes.

C. Extra-judicial settlement / partition is not a shortcut for married couples

Extra-judicial settlement is typically for decedents’ estates. It does not replace liquidation of a marital property regime. Attempting to “partition” conjugal/community property without proper legal basis invites defects.

12) Tax and registration: where consent problems surface

Even if a buyer pays and a deed is signed by only one spouse, the transaction often collapses at:

BIR (documentary requirements reveal marital status),
Registry of Deeds (spousal consent/SPA required),
Banks (loan underwriting requires clean title and valid conveyance).

Buyers and lenders will usually ask:

Is the seller married?
What regime applies?
Is the property community/conjugal?
Did both spouses sign, or is there an SPA?

13) Using an SPA safely: frequent pitfalls

Generic SPA (“to sell any property”) Buyers and registries may reject broad SPAs or treat them as risky. Property-specific SPAs are preferred.
Missing technical identifiers No title number, no exact address, no lot details: increases rejection risk.
Improper notarization/authentication A notarized SPA abroad without proper consular acknowledgment/apostille may be ineffective.
Authority to receive payment not clear Without explicit authority, disputes may arise over who can receive and issue receipts.
SPA too old While not automatically invalid, some institutions get wary if the SPA is years old. Fresh execution reduces suspicion.
Revocation issues An SPA can be revoked. Buyers often want assurances (and will check whether the principal is alive and still consenting, to the extent possible).

14) Edge cases that change the analysis

A. Property is exclusively owned by one spouse

If the property is truly exclusive (by regime and acquisition), that spouse may have broader power to sell. However:

Determining exclusivity can be legally complex.
If the title indicates “married to” or suggests the regime attaches, registries and buyers may still demand proof.

B. Property acquired after a valid dissolution/liquidation

If ACP/CPG has been dissolved and liquidated by final judgment and the property has been adjudicated to one spouse, that spouse can sell—but the paperwork and title annotation must match.

C. Foreign divorce considerations (special situation)

For marriages involving a foreign spouse or a valid foreign divorce recognized in the Philippines, property consequences may change, but recognition proceedings and property settlement rules are technical and fact-dependent.

15) Practical roadmap: what parties usually do (Philippine process flow)

Confirm marital status and regime
- Marriage certificate
- Check for marriage settlement / court orders
- Determine whether ACP/CPG/separation applies
Confirm property classification
- When acquired, how acquired, whose funds, how titled
- Check annotations on title and prior deeds
Secure the required spousal authority
- Both spouses sign the deed; or
- Spouse abroad issues SPA (consularized/apostilled); or
- If impossible/unjust refusal: pursue appropriate court relief (case-specific)
Execute notarized deed
- Ensure proper acknowledgment
- Match names exactly with title and IDs
Tax compliance and transfer
- BIR processing (eCAR), DST/CGT as applicable
- LGU transfer tax, updated RPT
- Register at Registry of Deeds; update tax declaration

16) Risk allocation: what buyers should insist on

Both spouses sign, or a properly executed SPA.
Proof that the property is not subject to a regime requiring consent (rare and must be proven).
Title is clean and matches civil status.
Escrow or staged payment until registrable documents are complete.

17) Key takeaways (Philippine setting)

Being separated in fact does not remove the need for spousal consent in disposing of community/conjugal property.
When one spouse is abroad, the standard solution is a properly executed SPA or the spouse signing the deed abroad with correct acknowledgment.
If consent is withheld or the spouse is unreachable, the remedy is typically judicial, not unilateral sale.
The transaction commonly fails at tax/registration stages when consent/authority is missing.
The cleanest sales are those with both spouses signing (or a robust SPA) and documents aligned with the applicable regime.