Transferring Property Acquired Before Marriage: Do You Need Spousal Consent? (Philippines)

Updated for the Family Code framework; written for buyers, sellers, and practitioners navigating real-world conveyances.

The short answer

Whether you need your spouse’s written consent to transfer property you acquired before marriage depends on your property regime:

Absolute Community of Property (ACP) (default for marriages celebrated on or after August 3, 1988, absent a valid prenup) Pre-marriage property generally becomes community property upon marriage. Written consent of both spouses (or court authority if one refuses/is incapacitated) is required to sell, mortgage, or otherwise encumber it during the marriage.
Conjugal Partnership of Gains (CPG) (if validly agreed to in a prenup, or by law for certain earlier marriages) Property owned before marriage remains exclusive to the spouse who owned it. That spouse may transfer it without spousal consent, except when the property is the family home (which needs both spouses’ written consent), or when some other special rule applies.
Separation of Property (if validly agreed to in a prenup or judicially decreed) Each spouse’s property—whether acquired before or during marriage—remains exclusive, so no spousal consent is needed to transfer non-family-home property.

Those are the anchors. The rest of this article explains the details, pitfalls, and practical steps.

Step 1: Identify your property regime

Check for a prenup (marriage settlements). A notarized instrument executed before the wedding and registered/noted in the Local Civil Registry (and ideally annotated on titles) can opt you into CPG or Separation of Property, or modify rules. If there is no valid prenup, the default is ACP.
Consider the marriage date.
- Family Code era (from Aug. 3, 1988): default is ACP.
- Earlier marriages: the default was usually CPG under the Civil Code unless the parties agreed otherwise. (For older titles/transactions, confirm which code applied.)
Watch for judicial decrees. A court may order separation of property (e.g., due to abandonment, loss of parental authority, marital misconduct, etc.), which changes the consent rules going forward.

Step 2: Classify the asset

A. If your regime is ACP (the modern default)

What’s in the community? Generally, all property owned by either spouse at the time of the wedding and acquired thereafter forms part of the community, except:
- Property acquired during marriage by gratuitous title (e.g., pure donations, inheritances), unless the donor/testator expressly provides otherwise;
- Property for personal and exclusive use (jewelry is not excluded);
- Property exchanged with exclusive property.
Bottom line for pre-marriage assets: Your pre-marriage properties usually become community property at the moment of marriage; selling or mortgaging them requires both spouses’ written consent (or court authority).

B. If your regime is CPG

What’s conjugal? The fruits, income, and gains produced during marriage by the spouses’ efforts or by their exclusive properties; also property acquired during marriage by onerous title (with nuanced exceptions).
Pre-marriage property remains exclusive to each spouse.
Bottom line for pre-marriage assets: The owning spouse may sell/mortgage without the other’s consent, except for the family home and other special cases below.

C. If your regime is Separation of Property

Each spouse retains exclusive ownership, administration, and disposition of their property (before and during marriage).
Bottom line: No spousal consent needed to transfer your own non-family-home property.

Special rules and high-frequency pitfalls

1) Family home (whoever owns it; any regime)

The **family home cannot be sold, alienated, mortgaged, or encumbered without the written consent of both spouses.
If a spouse is incapacitated or refuses without just cause, the other may seek court authorization.
The “family home” is a legal status tied to the actual dwelling where the family resides, not just a label on the title. A property can cease to be the family home if the family has permanently moved out and established a new family residence.

2) Acts of administration vs. acts of disposition

Routine administration (e.g., leasing within ordinary terms, paying taxes, necessary repairs) may be done by either spouse under ACP/CPG, with each presumed to act with the other’s consent for ordinary needs.
Disposition or encumbrance (sale, mortgage, long-term lease, donation inter vivos, assignment of substantial rights) of community/conjugal property requires written consent of both spouses, and lack of consent renders the act void (subject to jurisprudential nuances on partial invalidity vs. total nullity).

3) Title in one name ≠ exclusive property

Under ACP, even if a pre-marriage asset remains titled in one spouse’s sole name, it is community property by operation of law. A deed signed only by the titled spouse generally cannot validly transfer the whole property.
Buyers must look beyond the face of the title: check marital status, regime, and consent.

4) Buyers and lenders: good faith won’t cure missing consent

A purchaser or mortgagee in good faith is not protected if the transaction is void for lack of spousal consent on community/conjugal property (or on the family home). Due diligence is essential.

5) Donations/waivers between spouses

Donations between spouses are restricted (void in many cases, except moderate gifts on family occasions and those permitted by law). “Waivers” of future property or blanket renunciations may be ineffective. Always structure inter-spousal transfers with counsel.

6) Foreign spouse issues (land)

Philippine land ownership is restricted to Filipino citizens (and qualifying corporations). If a Filipino spouse owns land exclusively and later marries a foreign national, transferring ownership of the land to the foreign spouse is generally prohibited (except by hereditary succession). Consent rules don’t override constitutional restrictions.

7) Unions without valid marriage (cohabitation)

Different property rules (co-ownership under Articles 147/148) may apply. Consent expectations follow co-ownership principles, not ACP/CPG rules. Don’t assume spousal-consent rules apply if the marriage is void or there was no marriage.

8) Creditors and liabilities

ACP: community property answers for family expenses, obligations incurred by either spouse for the necessaries of the family, and those that redounded to the family’s benefit; personal obligations remain personal unless the law provides otherwise.
CPG: the partnership assets answer for conjugal debts; exclusive property answers for personal debts.

Practical playbooks

If you are the owner of pre-marriage property and want to transfer it

Confirm your regime (prenup? court decree?) and whether the asset is the family home.
ACP: secure your spouse’s written consent (and have both of you sign the deed). If consent is withheld without cause or spouse is incapacitated/absent, apply for court authorization.
CPG or Separation: if the asset is not the family home, you may sign alone. If it is the family home, obtain spousal consent or court approval.
Tax and regulatory steps: secure tax clearances (CGT or CWT, DST, local transfer tax), BIR CAR, Registry of Deeds requirements, and assessor transfer.

If you are a buyer or lender

KYC & status: obtain a PSA marriage certificate of the seller and a certification on any prenup (and, where applicable, an authenticated copy).
Match regime to asset: if ACP, demand spousal consent; if CPG/Separation, verify that the asset is not the family home (ask for proof of actual residence elsewhere, utility bills, IDs, barangay certification if needed).
Title checks: ensure any prenup or court decree is annotated on the TCT/CCT (helpful but not always present). If absent, require warranties and supporting documents.
If spouse is unavailable: require a Special Power of Attorney (SPA) specifically authorizing the disposition (for ACP/CPG assets) or a court order if consent cannot be given.

If you are dealing with co-owned pre-marriage property (e.g., owned by both before marriage)

Under ACP, the property enters the community; disposition needs both spouses’ consent (not just both co-owners as individuals).
Under CPG/Separation, treat it as co-owned exclusive property between the spouses; both co-owners must sign, and for family home, spousal consent is still required.

Documents to gather (checklist)

PSA Marriage Certificate (to confirm marital status and date)
Prenuptial Agreement (original/certified true copy), with proof of execution before marriage and registration; if possible, annotation on titles
Court Decree (if judicial separation of property or related orders exist)
Proof of family home status (or lack thereof): IDs, utility bills, barangay certification
Owner’s Duplicate Title (TCT/CCT) and latest tax declarations/receipts
Spousal written consent (or SPA/court authorization) where required
BIR clearances (CAR), tax payment proofs, and Registry of Deeds requirements

Frequently asked scenarios

“I bought a condo before marriage; title is under my name only. We have no prenup. Do I need my spouse to co-sign the sale?” Yes (ACP)—your pre-marriage condo became community property; both spouses’ written consent is required.
“Same facts but we signed a prenup adopting CPG.” No, because it’s your exclusive pre-marriage property under CPG—unless it’s the family home, which would still require both spouses’ consent.
“We’re under separation of property. It’s our current residence (family home), under my name from before marriage.” Yes, both spouses must consent to transfer or encumber the family home.
“Husband mortgaged our community house without my consent; the bank foreclosed.” Disposition/encumbrance of community property without the other spouse’s written consent is generally void as to the community. Seek legal counsel immediately for remedies against the mortgagee and to address foreclosure proceedings.

Compliance and litigation notes (strategy)

Form of consent: Keep it written, unequivocal, and ideally in the same instrument (or a clearly cross-referenced separate consent) and notarized.
Court authority: When a spouse refuses without just cause, is absent, or incapacitated, file a summary petition for authority to dispose/encumber in the family court with jurisdiction over your residence.
Partial invalidity: Jurisprudence may treat an unauthorized transfer as ineffective to the non-consenting spouse’s share (or void in full, depending on facts). Don’t gamble—secure consent or court approval.
Annotation helps: While legal status does not depend on title annotation, buyers and lenders place heavy weight on title annotations of prenups/court orders; lack of annotation invites disputes and price haircuts.
Tax planning: Consider capital gains vs. creditable withholding, VAT for developers, and DST; mismatches can derail releases of the CAR and delay registration.

Key takeaways

ACP = consent needed for pre-marriage assets (they become community property).
CPG/Separation = no consent for pre-marriage assets unless the property is the family home.
Family home needs both spouses’ written consent under any regime.
When in doubt, don’t sign alone—or obtain court authority first.
Buyers/lenders must do regime-and-home due diligence, not just a title check.

Final word

This topic blends formal code rules with practical conveyancing. Because specific facts (timing, residence, prenup validity, annotations, prior court orders) can flip the answer, consult a Philippine lawyer with your documents in hand before you sign anything.