Can a Spouse Sell or Mortgage Conjugal Property Without Consent?

The rule is the same for both property regimes:

• [Absolute community of property](/law/glossary/absolute-community-of-property), the default for marriages without a prenup since the Family Code took effect (Article 75), is governed by Article 96.
• Conjugal partnership of gains, which applies if the spouses chose it in a prenup, and by default to marriages celebrated under the Civil Code before the Family Code took effect (Civil Code Article 119), is governed by Article 124.

Both articles say:

These words sit in the paragraph about a spouse who administers the property alone, but in *Homeowners Savings & Loan Bank v. Dailo* (2005) the Supreme Court applied the same rule to a husband who mortgaged conjugal property without his wife's consent.

"Disposition" includes a sale or donation. "Encumbrance" includes a mortgage. So two things are required: either the written consent of the other spouse, or authority from the court. A verbal "okay" is not written consent.

For the difference between the two regimes, see Absolute community vs conjugal partnership.

Both spouses, jointly. Article 96 (and Article 124 in the same words) says:

If one spouse is incapacitated or otherwise unable to take part, the other may take over sole administration. But even then, sole administration does not include the power to sell or mortgage without court authority or the other spouse's written consent.

No, the whole transaction is void. In *Homeowners Savings & Loan Bank v. Dailo* (2005), the spouses had bought a house and lot during their marriage, but the deed of sale named only the husband. Through an agent, the husband mortgaged it to a bank without his wife's knowledge or consent, and the bank later foreclosed. The Supreme Court said: "By express provision of Article 124 of the Family Code, in the absence of (court) authority or written consent of the other spouse, any disposition or encumbrance of the conjugal property shall be void." Because Article 124 does not limit this to the other spouse's share, the Court upheld the nullity of the mortgage.

Articles 96 and 124 give one way out. The transaction is treated as a "continuing offer" by the spouse who signed and the buyer or lender. It becomes a binding contract if the other spouse accepts it, or if the court authorizes it, before either of them withdraws the offer.

A debt is different from a sale. The common property is liable for debts one spouse took without the other's consent only "to the extent that the family may have been benefited" (Article 94(3) for absolute community; Article 121(3) for conjugal partnership).

In *Dailo*, the Supreme Court said the burden of proving that the loan benefited the family "lies with the creditor-party litigant claiming as such." The bank could not simply say the loan helped the family; it had to prove it.

Yes, if it is exclusive property. Article 111, as amended by Republic Act No. 10572, now says simply:

So the main question is which property is exclusive. That depends on the regime:

• Absolute community: almost everything owned at the wedding or acquired after it is common (Article 91). Excluded are, for example, property received during the marriage by donation or inheritance (unless the giver says it is common), property for personal and exclusive use (but jewelry is common), and property owned before the marriage by a spouse who has legitimate descendants from a former marriage (Article 92).
• Conjugal partnership: each spouse keeps what he or she brought into the marriage, what was received by donation or inheritance, and what was bought with exclusive money (Article 109).

Under both regimes, property acquired during the marriage is presumed to be common unless proven otherwise (Articles 93 and 116), even if the title is in one spouse's name.

Not without consent. Article 98 says neither spouse may donate community property without the other's consent, except moderate donations for charity or on occasions of family rejoicing or family distress.

These are made-up examples to show how the rules work. They are not advice for any real case.

Ben and Ana. They married in 2010 without a prenup, so absolute community applies. In 2023 Ben mortgages their house to a lender without Ana's written consent. The mortgage is void (Article 96), not only as to Ana's half. If the lender wants to collect from the common property, it must prove the loan benefited the family.

Rosa and Tony. They married without a prenup after the Family Code took effect, so absolute community applies. Rosa inherited a lot from her father in 2018, during the marriage. The will says nothing about the community. The lot is her exclusive property (Article 92), and she may sell it without Tony's consent (Article 111).

Mila and Jun. Jun works in Qatar. Mila wants to sell their car, which is community property. She needs Jun's written consent. If Jun is unable to take part and cannot give it, the sale needs the court's authority (Article 96).

The date of the marriage on the PSA marriage certificate helps show which property regime applies. See How to get a PSA marriage certificate.

Only before the wedding. A prenuptial agreement can choose another regime, such as complete separation of property. See Prenuptial agreement in the Philippines.

Couples who live together without marriage follow different rules. See Do live-in partners share property?

Talk to a lawyer if your spouse sold or mortgaged common property without your written consent, if a bank is foreclosing on your family home, or if you need court authority because your spouse cannot or will not sign. Some remedies have deadlines; for example, Article 96 gives the wife five years to go to court against a decision on administration. A lawyer can check the title, the dates and the documents.

If you cannot afford a lawyer, see Free legal help in the Philippines for the Public Attorney's Office (PAO) and other options.