Short answer. They must obtain judicial authorization in a summary proceeding. Article 100 provides that where the law requires one spouse's consent to the other's transaction, and the spouses are separated in fact, judicial authorization takes the place of that consent, obtained through a summary court proceeding rather than informally.
What the law says
When the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding
Family Code, Article 100 — Separation in Fact. Read the full provision →
What the law says
The separation in fact between husband and wife shall not affect the regime of absolute community except that
Family Code, Article 100 — Separation in Fact. Read the full provision →
Separation in fact does not erase the consent requirement
Article 100 starts from the premise that living apart, on its own, does not change the underlying property regime. The separation in fact between husband and wife shall not affect the regime of absolute community except that certain specific adjustments apply. One of those adjustments addresses exactly your situation: consent requirements imposed elsewhere in the law do not simply disappear because the spouses are no longer living together — they still need to be satisfied in some form.
Judicial authorization replaces the missing consent
The specific fix the article provides is direct: when the consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding. Rather than being stuck because the other spouse is unreachable, unwilling, or otherwise unavailable to give consent, the spouse needing to proceed can go to court and ask for judicial authorization to stand in for that consent.
Why a summary proceeding specifically
The article specifies a summary proceeding rather than an ordinary, more drawn-out civil case. This reflects the practical reality behind the provision: a spouse facing separation in fact often needs a workable path forward for ordinary transactions without being trapped indefinitely by an absent or uncooperative spouse's unavailability, so the process is meant to move more efficiently than full-blown litigation.
What this means for the transaction you are trying to complete
If you are separated in fact from your spouse and a transaction legally requires their consent, this article confirms the fix is judicial authorization sought through a summary proceeding, not simply proceeding without any consent at all, and not treating the separation itself as automatically excusing the requirement. This article does not itself spell out the specific court, filing requirements, or documentary showing needed for that summary proceeding, so those procedural details would need to be confirmed separately.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- XXX vs. People of the Philippines, G.R. No. 255877, March 29, 2023 — read the decision on LawPhil →