May a person who is married or in a ‘live-in’ status, make donations?

By Atty. Eduardo T. Reyes III

The Covid-19 pandemic is causing a crisis that conflates economic, political, and even personal issues.

On the global stage, President Joe Biden had ordered the reinvestigation of the provenance of the virus- whether it was caused by “Zoonotic spillover” – one which transfers from animals to humans-, or whether it had escaped from a laboratory in Wuhan China – meaning artificially.

Locally, Iloilo City had been placed under the Modified Enhanced Community Quarantine (MECQ) classification with border restrictions effective 26 May up to 31 May 2021. Local government units are scrambling for vaccines that are in short supply.

Personally, family members, friends, loved ones, and people whom we thought were invincible somehow, had been taken away by the pandemic.

Just when we thought that after the vaccines had arrived, that the light at the end of the tunnel already starts to beckon, we are dampened by the reality that this virus has yet no plans of going away.

Now that the idea of mortality had taken shape in everyone’s lives, the material things we own become less valuable.

As a lawyer running a firm with clients from all walks of life, we have received requests in droves for the drafting of documents that will pave the way for a gratuitous transfer of properties known as a Last Will and Testament and/ or a Donation.

A Last Will and Testament of course shall become effective upon death while a donation takes effect immediately even if the donor is still alive. As to a Last Will and Testament, although it involves strict legal guidelines, it is not a problem when made in favor of a spouse or a live-in partner subject to very few exceptions. The concern is on making donations to take effect during the lifetime of the spouse or partner.

Thus curiously, it is worth asking: may a person who is married, or one in a “live in” relationship, make donations to his/ her spouse/ partner? And the twin question is, can either of them make donations to other persons even without the consent of the other spouse/ partner?

As to the first question on whether spouses or live-in partners may make donations to each other, under Article 87 of the New Family Code, “[ e ]very donation or grant of gratuitous advantage, direct or indirect, between the spouses during the marriage shall be void”. The prohibition also applies to those on a “live-in” status because the said provision further states that: “The prohibition shall also apply to persons living together as husband and wife without a valid marriage.”

Furthermore, pursuant to Article 1490 of the New Civil Code, a sale between the spouses is likewise not allowed, thus:

ART. 1490. The husband and the wife cannot sell property to each other, except: (1) When a separation of property was agreed upon in the marriage settlements; or (2) When there has been a judicial separation of property under Article 191.

“The reason behind the prohibition is to protect third persons who may have contracted with a spouse, believing in the existence of certain properties, and who could easily be defrauded by removing such property by transfer to the other spouse.”(Nicxon L. Perez, Jr. v. Avegail Perez-Senerpida, assisted by her husband Mr. Senerprida, G.R. No. 233365. March 24, 2021).

Next, as to whether either of the spouses or partners may make donations to other persons, from their common properties, without the consent of the other, the answer is NO and the reason was explained  by the Supreme Court in the same case of Nicxon L. Perez, Jr., viz:

“Proceeding to the third issue, given the nullity of the RWR, is the DoD that Eliodoro executed in favor of Nicxon over the subject property valid? If the marriage between Eliodoro and Adelita was valid and their property regime was either the ACP or the CPG, the donation would definitely be void pursuant to Articles 98 and 125 of the Family Code which provide:

ART. 98. Neither spouse may donate any community property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the community property for charity or on occasions of family rejoicing or family distress. (n) xxxx

ART. 125. Neither spouse may donate any conjugal partnership property without the consent of the other. However, either spouse may, without the consent of the other, make moderate donations from the conjugal partnership property for charity or on occasions of family rejoicing or family distress. 

It has been opined that a donation made by the husband, without the consent of the wife, would be subject to attack as a fraudulent alienation, or an alienation impairing the interest of the wife in the conjugal partnership property.

For onerous dispositions or encumbrances of any community property or conjugal partnership property by a spouse, the written consent of the other spouse or an authority of the court is required. In the absence of such consent or authority, the disposition or encumbrance shall be void; however, the transaction shall be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or authorization by the court before the offer is withdrawn by either or both offerors.

Thus, among married couples wherein the ACP or the CPG is their property regime, the consent of both spouses is required under the Family Code whether the disposition is gratuitous or onerous. X x x”.

And neither can one spouse or partner, or the other, argue that he/ she is a co-owner of the common property. Again in the case of Nicxon L. Perez, Jr., it was enunciated that:

However, Article 493 of the Civil Code cannot supersede, and must yield to, Article 147 of the Family Code, which expressly mandates that: “Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.” The reason for this amendment to Article 144 of the Civil Code rule, as it is now expressed in the Family Code, is this: x x x If the parties are allowed to dispose of their shares in said properties like in a true co-ownership, it will destroy their relationship. The Family Code, as already stated, would like to encourage the parties to legalize their union some day and is just smoothing out the way until their relationship ripens into a valid union.”

Indeed, while in a state of panic, we sometimes make rash decisions. And it can melt the heart when these are geared towards giving what we have and what we own, to our loved ones. But when we are thinking of giving from the conjugal properties, we have to take into account the law that somehow is telling us not to- not just yet, while the marriage or cohabitation still subsists.

Anyhow, the “marriage of true minds” does not “admit impediments” according to Shakespeare in “Sonnets”. “Love is not love which alters when alteration finds”. “It is an ever-fixed mark”.  (With or without a donation.)

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).