This material is for general information only and should not be treated as a substitute for personalised advice from a Philippine lawyer.
Overview
In the Philippines, land and other real properties acquired during a marriage are ordinarily presumed conjugal or part of the absolute community of property (“ACP”), unless the spouses validly agreed otherwise before the wedding. Because both spouses are co‑owners under the Family Code, one spouse generally cannot unilaterally sell, mortgage, or otherwise encumber the property without the written consent of the other. A deed executed in violation of this rule is not void per se, but it is voidable and subject to annulment or ratification within the time and manner provided by law. Below is an exhaustive treatment of the topic—from the governing statutes to practical remedies.
1. Governing Statutes and Doctrines
| Legal Source | Key Provision | Practical Effect |
|---|---|---|
| Family Code (E.O. No. 209) | Art. 96 & 124 (ACP / Conjugal Partnership) – Administration and disposition require written marital consent; disagreement may be resolved by the court. | Sale, mortgage, lease, donation or any alienation without consent is voidable. |
| Art. 100, 109, 110 – Exclusive property of each spouse. | Exclusive property may be sold without spousal consent. | |
| Civil Code (Old) | Art. 166, 173 (for marriages before 3 August 1988) – Similar requirements for conjugal property under the old regime. | Still applies to older marriages. |
| Land Registration Act / Property Registration Decree (PD 1529) | Transfer Certificate of Title (TCT) is conclusive against the whole world, but registration of a voidable deed does not cure its defect. | Buyers must verify marital consent before registration. |
| Civil Code Art. 1318 & 1878 | Elements of a valid contract; special power of attorney (SPA) needed for conveyance of real property. | A spouse may grant the other an SPA to sell. |
| Rules of Court | Annulment must be brought within five (5) years from discovery of the defect (Art. 1391, Civil Code). | Time-barred actions may ratify an otherwise voidable sale. |
2. Property Regimes and When Consent Is Needed
Absolute Community of Property (default for marriages on/after 3 Aug 1988) All property (except those expressly excluded by law) belongs to the community. Both spouses must sign the contract of sale or the non‑signing spouse must execute a written consent/SPA.
Conjugal Partnership of Gains (default before 3 Aug 1988) Property acquired during marriage and income from separate property form the partnership. Same consent rule applies.
Separation of Property Possible only (a) by prenuptial agreement, or (b) by judicial order after a petition for separation of property. The spouse who exclusively owns the land may sell it without the other’s consent; however, proof of the regime must be shown to third parties (e.g., annotated marriage settlement or court order).
Co‑ownership After Dissolution
- Annulment/Declaration of Nullity: Until liquidation of the ACP/CPG is completed, the property remains in trust for both spouses; neither can dispose of a specific parcel without consent.
- Foreign Divorce Recognised in PH (Art. 26 (2), Family Code): Liquidation is still required; otherwise the usual consent rules persist.
- Legal Separation: Administration passes to an administrator appointed by the court; individual disposition is disallowed absent authority.
3. Consequences of a Sale Without Spousal Consent
| Aspect | Explanation |
|---|---|
| Nature of Defect | The deed is voidable, not void—valid until annulled. |
| Action to Annul | Must be filed by the aggrieved spouse or their heirs within five (5) years from discovery. |
| Effect on Buyer | Buyer acquires no better right than the seller; title can be reconveyed. Buyer may, however, recover the price and damages from the erring spouse. |
| Effect on Torrens Title | Registration does not validate the voidable deed; reversion is possible via an action for reconveyance/annulment of title. |
| Ratification | The non‑consenting spouse may ratify expressly (written deed) or impliedly (e.g., accepting the price or remaining silent beyond five years). Ratification retroactively cures the defect. |
| Criminal Liability | Possible estafa under Art. 315(2)(a), Revised Penal Code, if deceit is present; or falsification if signatures are forged. |
4. Remedies of the Injured Spouse
Annulment of Sale / Reconveyance
- File a civil action under Art. 1390‑1398 (voidable contracts) and Sec. 108, PD 1529.
- Prayer: Annul deed, cancel TCT in buyer’s name, revive original title or issue new in both spouses’ names.
Action for Partition (if marriage dissolved)
- After liquidation, file an ordinary action to partition and distribute shares.
Damages
- Actual damages (value of property), moral, exemplary.
- Attorney’s fees as circumstances warrant.
Criminal Complaint
- Estafa or falsification, if elements are present. Note that conviction does not automatically annul the sale; a separate civil action is still required.
5. Rights of the Buyer and How to Protect Them
| Best Practice | Purpose |
|---|---|
| Conduct full due diligence (inspect TCT, tax declarations). | Verify existing annotations (marriage settlement, adverse claims). |
| Require both spouses’ signatures on the Deed of Sale or a notarised SPA plus written marital consent. | Avoid future litigation. |
| Secure a Sworn Affidavit of marital status and property regime. | Provides documentary defence of good faith. |
| Withhold full payment until the Deed is signed by both spouses or a court order is presented. | Mitigate risk of voidability. |
| Annotate SPA/consent on the TCT upon registration. | Gives notice to third parties. |
6. Special Scenarios
Sale of an Undivided Share Only A spouse may sell his or her ideal (undivided) share in the community property, subject to subsequent liquidation. The buyer merely becomes a co‑owner; they cannot take exclusive possession.
Property Exclusively Owned Before Marriage Consent is not needed if the property clearly belongs solely to the selling spouse (e.g., acquired before the wedding and title remains solely in his/her name) and has not been converted into community property (e.g., by commingling).
Surviving Spouse After Death Administration of the estate passes to the court‑appointed administrator; unilateral sale by the widow/widower without authority is voidable.
Muslim Personal Laws For marriages under the Code of Muslim Personal Laws (PD 1083), different property rules may apply; spouses may stipulate otherwise.
7. Key Supreme Court Decisions
| Case | G.R. No. | Ruling |
|---|---|---|
| Spouses Abalos v. CA & G.R. | 103666, 25 Nov 1999 | Husband’s unilateral sale of conjugal land is voidable; action for annulment prospered. |
| Cabales v. CA | 148978, 15 Apr 2005 | Buyer in good faith still bound by rule; registration does not cure lack of consent. |
| Spouses Go v. PNB | 138903, 10 Sept 2001 | Mortgage without wife’s consent voidable; ratification possible. |
| F.F. Cruz & Co. v. CA | 77673, 10 June 1988 | Buyer who relied solely on title bears risk when essential consent lacking. |
| Heirs of Malate v. Gamboa | 150128, 28 Oct 2003 | Sale of undivided share valid only to the extent of seller’s ideal portion. |
(These rulings remain authoritative; later cases generally follow the same doctrine.)
8. Frequently Asked Questions
| Question | Short Answer |
|---|---|
| Is a deed totally void if only one spouse signed? | No; it is voidable and effective until annulled or ratified. |
| How long do I have to challenge the sale? | Five (5) years from discovery of the lack of consent. |
| What if the buyer already registered the land? | Registration does not perfect title; you may still seek reconveyance. |
| Can I just sign after the fact? | Yes—express ratification (or implied by silence for five years) cures the defect. |
| Do I need court approval if my spouse simply refuses? | Yes. File a petition under Art. 124; the court may authorise the sale if it benefits the family. |
| What if we had a prenup? | Present it to prove separate property. Without annotation, buyers may still insist on joint signatures. |
9. Practical Checklist for Lawyers and Conveyancers
- Identify the property regime (check marriage date, prenup, court orders).
- Obtain written spousal consent or SPA attached to the Deed.
- Verify identities and marital status through authenticated PSA documents.
- Double‑check title annotations for adverse claims or pending cases.
- Ensure proper notarisation; indicate both spouses’ community property addresses.
- File the deed with the Register of Deeds together with tax clearances and BIR CAR.
- Annotate consent/SPAs on the TCT.
- Advise clients about the 5‑year period for actions to annul or ratify.
Conclusion
Selling a jointly owned (community or conjugal) property in the Philippines requires the active participation—or at least the explicit, written consent—of both spouses. Failure to observe this rule exposes the parties to annulment suits, damages, and even criminal prosecution. Buyers must exercise heightened diligence, while aggrieved spouses should act within the prescribed period to protect their interests. When in doubt, seek judicial approval or professional legal counsel to avoid the costly pitfalls of a voidable transaction.
Prepared July 29, 2025, in accordance with current Philippine statutes and jurisprudence.