Under the Family Code, neither spouse may sell, mortgage, or otherwise dispose of or encumber community or conjugal property without the written consent of the other spouse, or authority of the court. A disposition made by one spouse without the required consent is void, though the law treats it as a continuing offer that the non-consenting spouse or the buyer may accept before it is withdrawn. This protects the family patrimony and means buyers must ensure both spouses sign; a deed signed by only one spouse is dangerous.
A husband sells the family lot without telling the wife; a wife mortgages the conjugal house while the husband is abroad. Under the Family Code, these transactions are defective — because disposing of community or conjugal property requires both spouses’ consent.
The Rule: Both Spouses Must Consent
For property under the absolute community or the conjugal partnership, the Family Code requires that neither spouse may alienate (sell), encumber (mortgage), or otherwise dispose of the common property without the written consent of the other spouse or the authority of the court. Although the administration of the community/partnership belongs to both spouses jointly, a disposition or encumbrance is a graver act that needs the other spouse’s written consent (or, absent it, a court authorization).
What Happens to a Sale Without Consent
A sale, mortgage, or disposition of community or conjugal property by one spouse alone, without the other’s consent, is void. But the law softens this with a practical mechanism: such a transaction is construed as a continuing offer on the part of the consenting spouse and the buyer, which may be perfected (accepted) by the other spouse — or by the buyer — before the offer is withdrawn by either party. In effect, the non-consenting spouse can later ratify it, or the transaction fails. Without ratification, the disposition does not bind the community.
Why the Law Protects the Family Patrimony
The rule exists to protect the family’s property from being dissipated by one spouse acting alone. Because the community/conjugal property belongs to both, and answers for the family’s needs, one spouse should not be able to sell or burden it unilaterally — least of all to the family’s prejudice. This is especially important when a spouse is abroad or uncooperative: the other spouse cannot simply proceed alone but may seek court authority if consent is unreasonably withheld or cannot be obtained.
The Danger for Buyers
This is the practical trap for the unwary buyer. If you buy property that is conjugal or community but the deed is signed by only one spouse, you may end up with a void sale and a fight with the other spouse. Due diligence therefore includes:
- Checking the seller’s civil status and the character of the property (is it exclusive, or community/conjugal?);
- Requiring the signatures or written consent of both spouses on the deed; and
- Where one spouse cannot sign, requiring a proper special power of attorney or a court authorization.
Exclusive Property Is Different
The consent rule applies to community/conjugal property. A spouse’s exclusive or separate property (inherited, or brought in as capital under a conjugal-partnership regime, or under complete separation) may generally be disposed of by that spouse alone — though a sale of the family home has its own consent rules. Identifying whether the property is common or exclusive is therefore the first question.
Practical Advice
- Sellers: if the property is community or conjugal, both spouses must consent in writing; if your spouse is unavailable, use a valid SPA or seek court authority.
- Buyers: insist on both spouses signing (or proper consent) — a one-spouse deed on conjugal property is a void sale waiting to unravel.
Frequently Asked Questions
Can one spouse sell conjugal property alone? No. Under the Family Code, neither spouse may sell, mortgage, or dispose of community or conjugal property without the written consent of the other spouse or the authority of the court.
Is a sale without spousal consent valid? It is void, but the law treats it as a continuing offer that the non-consenting spouse or the buyer may accept before it is withdrawn. Without ratification, it does not bind the community.
My spouse is abroad. How can I sell our property? You need the spouse's written consent, which can be given through a valid special power of attorney. If consent cannot be obtained or is unreasonably withheld, you may seek court authority.
What should a buyer check? The seller's civil status and whether the property is exclusive or community/conjugal. For community or conjugal property, require both spouses to sign or provide written consent, or a proper SPA or court authorization.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you are buying or selling property that may be conjugal, our firm can ensure the sale is valid and protected. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or send an email to vivasnobles@gmail.com. We look forward to hearing from you.