Can You Sell Your Real Properties While Undergoing Nullity of Marriage Proceedings in Court?

“Secure property in hand leads to peace in mind.”

– Mencius, Famous Confucian Philosopher

By Realttorney^®

The family is the basic social unit in our society. But sadly, not all unions last. Since divorce is not recognized in the Philippines, the next best thing to avail of is the nullity of marriage under the provisions of the Family Code of the Philippines.

The “annulment” process brings unnecessary stress, tension, and frustration. It may have started a day after the wedding or the day after your firstborn was delivered. Oftentimes, a lot of married couples suffer silently as both drift further and further apart. But they decide to continue being together for the sake of the children or other important considerations.

Yet, there comes a point when the suffering is too much and it becomes unbearable. And, the only way out of the relationship is to seek to break the marriage bond so that the couple can go their separate ways.

Aside from the confusion it brings to the children as one spouse leaves the family home, the annulment process becomes a battle for control of the properties – real and personal. The distribution of such properties is the second most contentious issue in a petition for the nullity of marriage, the first being the custody of the minor child or children.

When the Petition for Nullity of Marriage is filed before the Court, if all assets have been identified and a prayer for the permanent custody of the children has been made then the question arises, can you sell your real properties while the annulment case is pending in court?

Here are six guide questions to help you determine your plan of action during the pendency of the petition for the absolute nullity of marriage:

1. Do you have a PRE-NUPTIAL AGREEMENT? A pre-nuptial agreement is also known as a “marriage settlement” in the Family Code of the Philippines. It is an agreement between the future spouses that fixes or identifies the property relations that will govern their marriage.

According to Article 75 of the Family Code, ”the future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime.” The provisions of the pre-nuptial agreement of the spouses will allow or limit the sale of the properties acquired during marriage.

For example, if the spouses agree on a complete separation of property in their pre-nuptial agreement then there will be no limitation in selling the properties acquired during marriage. It is different when it comes to the other property regimes, which will be discussed below.

2. What are the property relations between the husband and the wife? The date when you got married determines what kind of property relations govern the marriage, absent a pre-nuptial agreement. It is important to know that the Family Code of the Philippines (Executive Order No. 209, Series of 1987) became effective on August 3, 1988.

Hence, the property regime of marriages celebrated before the effectivity of the Code is presumed to belong to be conjugal partnership of gains unless it be proved that it pertains exclusively to the husband or the wife.

In contrast, the property regime of marriages celebrated on the day and after the effectivity of the Family Code is presumed to belong to the absolute community of property.

3. What is the property regime of the Conjugal Partnership of Gains? The Conjugal Partnership of Gains is defined in the Family Code of the Philippines as a property regime where the “husband and wife place in a common fund the proceeds, products, fruits, and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them unless otherwise agreed in the marriage settlement.”[1]

Under this property regime, it would be very difficult to sell conjugal assets while undergoing annulment proceedings in court; Provided that it is clearly established, only the separate properties of each spouse can be sold during such difficult and stressful times.

4. What are the separate (or exclusive) properties of the spouses versus their conjugal properties? Under Article 109 of the Family Code, the following shall be the exclusive property of each spouse under the Conjugal Partnership of Gains: “(a) that which is brought to the marriage as his or her own; (b) that which each acquires during the marriage by gratuitous title; (c) that which is acquired by right of redemption, by barter or by exchange with property belonging to only one of the spouses; and (d) that which is purchased with exclusive money of the wife or of the husband.”

Please note that the exclusive property of the wife is called her paraphernal property while the exclusive property belonging to the husband is called his capital property. Meanwhile, properties acquired gratuitously include those acquired by either spouse during the marriage by inheritance, device, legacy, or donation. These exclusive properties of the spouse can be disposed of without incident during the annulment process.[2]

5. Finally, what is the property regime of absolute community? The Absolute Community of Property is a system of property relations where “all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter”[3] shall be considered as community property. This means that all the properties become co-owned by each of the spouses at the time of the celebration of the marriage and all properties acquired during the marriage.

Like the conjugal partnership of gains, under the absolute community of property, the alienation or disposition of the spouse of any property tagged as community property cannot be done without the order of the court or according to some compromise agreement reached during the preliminary conference of the annulment case.

These 5 guide questions will greatly assist a person undergoing the annulment process in determining his or her options if an interested buyer desires to purchase a property that is considered a community property or a conjugal property.

As always, please consult your legal counsel when faced with such a situation before making a final decision on such a complicated matter.

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Atty. Jojo is a real estate attorney, an estate planning attorney, a licensed real estate broker, and a PRC-accredited Lecturer/ Speaker for Training Programs in Real Estate. He is committed to helping new and veteran real estate service practitioners be well-informed of the latest laws, rules, regulations, and information relevant to the real estate service sector.

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[1]See Article 106 of the Family Code of the Philippines.

[2] See Section 2, Republic Act No. 10572.

[3]See Article 88 of the Family Code of the Philippines.