May the husband sell conjugal property without his wife’s consent?

By Atty. Eduardo T. Reyes III 

The present Family Code of the Philippines which became effective in August 1988 has two immediate progenitors: the New Civil Code which took effect in 1950; and its precursor, the Spanish Civil Code which was in force prior to 1950.

These three laws and the respective time frames of their effectivity have far-reaching consequences on the sale, disposition or conveyance of conjugal properties which the husband may have made without the consent of his wife. This is because “The validity of a marriage and all its incidents must be determined in accordance with the law in effect at the time of its celebration”. (RENATO A. CASTILLO v. LEA P. DE LEON CASTILLO, G.R. No. 189607, April 18, 2016). 

                The series of revisions of the Philippine Civil Code from the Spanish Civil Code to the New Civil Code and now the Family Code, mirror the law’s intention to recognize equality between men and women wherein a marital relationship can serve as microcosm.

Harking all the way back to the Spanish Civil Code, the law then was such that the man can decide on their property concerns even without his wife’s approval.

In Spouses Fulalio Cueno and Flora Bonifacio Cueno v. Spouses Epifanio and Veronica Bautista, et al. (G.R. No. 246445, March 2, 2021), it was extensively discussed how the law had evolved on this legal issue.  According to this ruling, “It bears emphasis that under Article 1413 of the Spanish Civil Code, the wife’s consent was not required for the sale of conjugal property as the husband’s right to administer and dispose of the same was considered “full, absolute and complete.”  

                When the New Civil Code replaced the Spanish Civil Code in 1950, this rule that the wife’s consent is not required for a sale or disposition of conjugal property underwent a revolutionary change. Reckoned from 1950 the wife’s consent became necessary for a valid sale of conjugal property pursuant to Articles 165 and 166 in relation to Article 173 of the New Civil Code. In the Spouses Fulalio Cueno and Flora Bonifacio Cueno case, it was held that: 

“Art. 165. The husband is the administrator of the conjugal partnership. (1412a)  

Art. 166. Unless the wife has been declared a non compos mentis or a spendthrift, or is under civil interdiction or is confined in a leprosarium, the husband cannot alienate or encumber any real property of the conjugal partnership without the wife’s consent. If she refuses unreasonably to give her consent, the court may compel her to grant the same. xxxx 

Art. 173. The wife may, during the marriage and within ten years from the transaction questioned ask the courts for the annulment of any contract of the husband entered into without her consent, when such consent is required, or any act or contract of the husband which tends to defraud her or impair her interest in the conjugal partnership property. Should the wife fail to exercise this right, she or her heirs, after the dissolution of the marriage, may demand the value of property fraudulently alienated by the husband. (n) (Underscoring supplied.) 

                The drastic change which was introduced by the New Civil Code in 1950 is a reflection of the law’s mindfulness of women’s meaningful struggle to be treated alike with men. 

                And yet, under the New Civil Code, should the husband disregard his wife’s lack of consent and obstinately sell their conjugal property without his wife’s approval, the sale is not totally void but only voidable.

Again in Spouses Fulalio Cueno and Flora Bonifacio Cueno, it was held that “a voidable contract is one where “x x x consent is vitiated by lack of legal capacity of one of the contracting parties, or by mistake, violence, intimidation, undue influence or fraud x x x.” Unlike void contracts, “[ v ]oidable or annullable contracts, before they are set aside [by courts of law], are existent, valid, and binding, and are effective and obligatory between the parties.” They may be ratified and the action to annul the same may be barred by prescription.  Notably, Article 173 is explicit that the action for the annulment of a contract involving conjugal real property entered into by a husband without the wife’s consent must be brought 1) by the wife, 2) during the marriage, and 3) within ten years from the questioned transaction.” 

                In other words, if the parties were married between 1950 and 1987, any sale made by the husband without his wife’s consent, can be annulled upon the wife’s instance but only within ten years from the time the sale was made. If the wife does not take any action within the ten-year period, then the sale remains valid.

Finally, under the auspices of the New Family Code which took effect in 1988 and is still the governing law to date, any sale made by either spouse without the consent of the other, is void. And a void contract was explained in Spouses Fulalio Cueno and Flora Bonifacio Cueno, to wit: “On the other hand, Articles 96 and 124 of the Family Code unequivocally state that a disposition of community or conjugal property without the consent of the other spouse is void but shall constitute 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.”

 

x x x

 

A void or inexistent contract may be defined as one which lacks, absolutely either in fact or in law, one or some of the elements which are essential for its validity. It is one which has no force and effect from the very beginning, as if it had never been entered into; it produces no effect whatsoever either against or in favor of anyone. Quad nullum est, nullum producit effectum.  Article 1409 of the New Civil Code explicitly states that void contracts also cannot be ratified; neither can the right to set up the defense of illegality be waived. X x x Abalos v. Macatangay, Jr., further explained that “x x x a void contract cannot be ratified and the action or defense for the declaration of the inexistence of a contract does not prescribe. A void contract produces no effect either against or in favor of anyone – it cannot create, modify or extinguish the juridical relation to which it refers.”  

To sum up, for marriages celebrated before 1950 (Spanish Civil Code), any sale made by the husband even without the wife’s consent is perfectly valid and cannot be questioned. In turn, for those marriages entered into between 1950 and 1987 (New Civil Code), sales made by the husband can be challenged by his wife but only within ten years from the time the transaction was made. While as to marriages solemnized from 1988 onwards (New Family Code), any sale made by either spouse of conjugal assets without the approval of the other is void and the right to question its validity can be done at any time.   

 

(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 book author. His website is etriiilaw.com).