In the Philippines, the legal status of a marriage deeply dictates the property relations between spouses. A common misconception is that "separation in fact"—the physical and emotional ending of a relationship without a court decree—terminates the legal bond or the community of property. Under the Family Code of the Philippines, the reality is quite different, particularly regarding the acquisition of real estate.
The Default Property Regimes
To understand consent requirements, one must first identify which property regime governs the marriage:
- Absolute Community of Property (ACP): The default for marriages celebrated on or after August 3, 1988. In this regime, almost all property owned by the spouses at the time of marriage or acquired thereafter is owned jointly.
- Conjugal Partnership of Gains (CPG): The common regime for marriages celebrated before August 3, 1988. Here, only the "fruits" of the marriage and properties acquired through joint effort or funds during the marriage are conjugal.
The Legal Status of "Separated in Fact"
Article 147 and 148 of the Family Code deal with unions without marriage, but for valid marriages, Article 100 (for ACP) and Article 127 (for CPG) are explicit:
"The separation in fact between husband and wife shall not affect the regime of absolute community [or conjugal partnership]..."
Unless there is a judicial decree of Legal Separation, Annulment, or Declaration of Nullity of Marriage, the property regime remains fully intact. Consequently, any property purchased by one spouse while separated in fact is still legally presumed to be part of the community or conjugal property.
Is Spousal Consent Required for Purchasing?
Technically, a person does not need their spouse's consent to buy or acquire property. Any individual with the capacity to act can enter into a contract of sale. However, the legal complications arise in the documentation and the future disposition of that property:
1. The "Married To" Requirement
When registering a land title (Transfer Certificate of Title) with the Registry of Deeds, the buyer’s civil status must be disclosed. If the buyer is married, the title will inevitably be issued as:
- "[Name of Buyer], married to [Name of Spouse]."
Even if the buyer uses their "exclusive" money, the law presumes the funds were conjugal. This makes the estranged spouse a co-owner by operation of law.
2. The Requirement for Disposal (The "Double Signature")
While you can buy property alone, you generally cannot sell, mortgage, or lease it for more than one year without the written consent of the estranged spouse. Under Articles 96 and 124 of the Family Code, the administration and enjoyment of the community/conjugal property belong to both spouses jointly.
If one spouse sells a property acquired during the separation without the other's consent, the transaction is considered void, not merely voidable.
Exceptions: When Consent is Not Needed
There are narrow circumstances where property acquired during separation might be considered "exclusive," thus bypassing the need for spousal involvement:
- Gratuitous Title: If the spouse acquires the property through inheritance or a donation specifically given to them alone.
- Judicial Separation of Property: If the spouses have previously petitioned the court for a voluntary dissolution of their property regime, and the court has granted it.
- Property Purchased with Exclusive Funds: In a CPG regime (pre-1988 marriages), if a spouse can prove they used "capital" (money owned before marriage) to buy the property, it may be deemed exclusive. However, proving this usually requires litigation if challenged.
Risks of Purchasing While Separated
Buying property while "separated in fact" without a court-ordered separation of assets carries significant risks:
- Automatic Co-ownership: The estranged spouse becomes a legal co-owner of the new asset.
- Inheritance Rights: If the buying spouse passes away, the estranged spouse is a compulsory heir and will inherit a portion of that property.
- Encumbrance Deadlock: The buyer will be unable to use the property as collateral for a bank loan or sell it in the future without the signature of the person they are trying to avoid.
Summary Table: Property Rights During Separation in Fact
| Action | Legal Status | Spousal Consent Requirement |
|---|---|---|
| Purchase of Land | Allowed individually | Not strictly required for the purchase, but name appears on title. |
| Registration | Mandatory disclosure | Spouse's name will be included in the TCT. |
| Selling/Mortgaging | Joint administration | Mandatory. Transaction is void without it. |
| Inheritance | Conjugal/Community | Spouse retains full hereditary rights to the asset. |
The Judicial Solution
For spouses who are permanently separated but not civilly "single," the recommended legal step is to file a Petition for Judicial Separation of Property under Article 135 of the Family Code. If the separation in fact has lasted for at least one year and reconciliation is highly unlikely, the court may decree the dissolution of the property regime. Only after this decree is finalized can a spouse truly acquire property that is legally and exclusively their own.