Is the written consent of one spouse required to dispose or encumber conjugal/common property?
There should be no dispute that either spouse cannot alienate or dispose of conjugal property without the written consent of the other.
The codal reference to this is the second paragraph of Article 96 and 124 of the Family Code which states:
“In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse my assume the sole powers of administration. These powers however do not include the powers of disposition or encumbrance without the 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.”
The Supreme Court has ruled that the authority of the court allowing one spouse to dispose or encumber any common property may be sought only if the other spouse is incapacitated.
The Supreme Court in Thelma a. Jader-Manalo vs. Norma Fernandez C. Camaisa and Edilberto Camaisa [G.R. No. 147978. January 23, 2002] referred to the comment of civil law expert Arturo Tolentino who in his book said that "As a result of this joint ownership, neither spouse may alienate or encumber any common property without the written consent of the other, or, if the other spouse is incapacitated, authorization of the court."
If the other spouse is not incapacitated, his or her written consent to the disposition or encumbrance is indispensable, subject of course to certain exceptions.
Are there instances where the disposal by one spouse of conjugal property without the written consent of the other may be valid?
In Estela Costuna versus Laureana Domondon, [G.R. 82753 December 19, 1989], the Supreme Court allowed the husband to sell his ½ share of the conjugal property even without the consent of the wife because the wife unjustifiably withheld her consent to the sale.
This case tells us that one spouse cannot even sell his own ½ share without the consent of the other spouse, save only when the refusal to consent was unjustifiable.
In this case, the wife refused to give her consent to the sale of conjugal land even if the proceeds of the sale were to be used for the sick husband’s hospital expenses.
The Court said the wife was greedy because previously, the husband had executed a will naming her as the sole heir.
Naturally, the wife greedily refused to consent to the sale because she wanted the whole conjugal property intact to herself.
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