by Atty. Ariel T. Martinez, REALTORŪ
It is provided under the Family Code, more specifically, Article 124, that in case of conjugal properties
the conŽsent of the spouse must be obtained in case of sale of real property or disposition thereof;
" Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses
jointly. In case of disagreement, the husband's decision shall preŽvail, subject to recourse to the court by the wife for
proper remedy, which must be availed of within five years from the date of the contract implementing such decision.
the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties,
the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without
authority of the court or the written consent of the other spouse. In the absence of such authority or consent, the disposition
or encumbrance shall be void, x x x"
What the above would mean is that the written consent of the spouse must be obtained [ or authority
from the court ] in cases of disposition or sale or encumbrance of property, otherwise the same shall be void.
in the case of De la Cruz vs. Segovia decided by the Supreme Court last June 26, 2008 [ G.R. No. 149801 ], it held that the
presence of the husband even if he did not sign the agreement would show that he had consented to the agreement.
this case, two sisters, who were both married, entered into an agreement regarding certain properties wherein one of the said
sisters, Florinda of de la Cruz, entered into an agreement regarding the sale of one of the properties to the other sister
and where she signed without the husband Renato de la Cruz signing the agreement.
Thereafter, the spouses de la Cruz
filed a case for Nullity of Contract/ Agreement with Damages and one of the grounds relied upon was that the agreement had
no force and effect on account of the absence of the signature of the husband of Florinda, Renato.
The case was dismissed by the Regional Trial Court [ RTC ] and the Court of Appeals upheld the decision
of the RTC.
The case reached up to the Supreme Court which ruled that as to the ground that the agreement had no force
and effect because her husband did not sign the agreement cannot be upheld in view of the actuations of the husband which
showed he agreed and gave his conformity to the agreement.
In the decision, the Supreme Court said,
" x x x As found by the courts below, Renato's consent to the Agreement was drawn from the fact that he was present
at the time it was signed by the sisters and their witnesses; he had knowledge of the Agreement as it was presented to him
for his signature, although he did not sign the same because his wife Florinda insisted that her signature already carried
that of her husband; Renato witnessed the fact that Leonila contributed her hard earned savings in the amount of P36,000.00
to complete their share in the purchase price of the properties in question in the total amount of P 180,000.00. The aforesaid
findings of the court below are beyond review at this stage."
Although the Supreme Court had ruled that
even if the husband or spouse did not sign, his actuations and presence would show his consent, it is however, dependent on
the facts and only shows that in certain cases, the absence of the signature of the other spouse would not automatically mean
that the agreement is void or the party who did not sign can simply move to cancel or declare the agreement void beŽcause
the spouse did not sign the agreement.
In our real estate practice, it is still deemed best of course to have both
spouses sign in a case where it involves the sale or disposition of conjugal property of both spouses in order to ensure that
the agreement will be valid.