The Manila Times

SPECIAL CO-OWNERSHIP

Dear PAO,

My live-in partner and I acquired a house and lot. I want to sell my share in SAID PROPERTY TO fiNANCE MY own business but my live-in partner might oppose the plan. Someone told me that the property is governed by the rule on co-ownership and I can dispose of my proportionate share even without his consent as a co-owner. Is that true?

Heart

Dear Heart,

The properties acquired by persons who are capacitated to marry each other and are living TOGETHER AS HUSBAND AND WIFE ARE SPECIfiCALLY governed by Article 147 of the Family Code of the Philippines, which provides that:

“When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the BENEfiT OF MARRIAGE OR UNDER A VOID MARRIAGE, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

“In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares. For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household.

“Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired during cohabitation and owned in common, without the consent of the other, until after the termination of their cohabitation.

“xxx”

The said properties are covered by a special co-ownership and not just ordinary co-ownership. The difference between special co-ownership under Article 147 of the Family Code of the Philippines, and ordinary co-ownership under the New Civil Code of the Philippines was explained in the case of Perez, Jr. vs. Perez-Senerpida, GR 233365, March 24, 2021, where the Supreme Court speaking through Associate Justice Alfredo Benjamin Caguioa stated that:

“One eminent civil law expert distinguishes ordinary co-ownership and “special co-ownership” under Article 147 in this manner:

“x x x In ordinary co-ownership, a co-owner may validly alienate or encumber his undivided share in the common property without the consent of the other co-owners. This article [(Article 147)] creates an exception in the special co-ownership it recognizes between parties living together as husband and wife. As long as the cohabitation lasts and the co-ownership exists, no disposition inter vivos of such undivided share can be validly made by one party without the consent of the other.

“Given the above express prohibition of a party to the cohabitation to encumber or alienate by acts inter vivos even his or her share in the property acquired during the cohabitation and owned in common, without the consent of the other party until after the termination thereof under Article 147, then the donation of any property acquired during the cohabitation by one party without the consent of the other can only be but void. The rules on ordinary coownership cannot apply to vest validity on the undivided share of the disposing party. x x x”

Applying the above-quoted decision in your situation, your plan to sell your share on the house and lot without your partner’s consent would be in contravention to the provision of Article 147 of the Family Code of the Philippines. The principle regarding ordinary coownership that a co-owner can dispose of his proportionate share without the consent of the other co-owner/s does not apply to a special co-ownership under Article 147 (Ibid). Thus, it is necessary to obtain his consent before you can sell your share in the subject property. This restriction lasts until the termination of your cohabitation with him.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

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2022-08-12T07:00:00.0000000Z

2022-08-12T07:00:00.0000000Z

https://digitaledition.manilatimes.net/article/281569474505309

The Manila Times