without signing agreement

may still mean consent of the husband

It is provided under the Family Code, more specifically, Article 124, that in case of conjugal properties the consent of the spouse must be obtained in case of sale of real property or disposition thereof ;

“ Art. 124. The administration and enjoyment of the conjugal partnership property shall belong to both spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to recourse to the court by the wife for proper remedy, which must be availed of within five years from the date of the contract implementing such decision.

In the event that one spouse is incapacitated or otherwise unable to participate in the administration of the conjugal properties, the other spouse may assume sole powers of administration. These powers do not include disposition or encumbrance without 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. x x x”

What the above would mean is that the written consent of the spouse must be obtained [ or authority from the court ] in cases of disposition or sale or encumbrance of property, otherwise the same shall be void.

However, in the case of De la Cruz vs. Segovia decided by the Supreme Court last June 26, 2008 [ G.R. No. 149801 ], it held that the presence of the husband even if he did not sign the agreement would show that he had consented to the agreement.

In this case, two sisters, who were both married, entered into an agreement regarding certain properties wherein one of the said sisters, Florinda of de la Cruz, entered into an agreement regarding the sale of one of the properties to the other sister and where she signed without the husband Renato de la Cruz signing the agreement.

Thereafter, the spouses de la Cruz filed a case for Nullity of Contract/Agreement with Damages and one of the grounds relied upon was that the agreement had no force and effect on account of the absence of the signature of the husband of Florinda, Renato.

The case was dismissed by the Regional Trial Court [ RTC ] and the Court of Appeals upheld the decision of the RTC.

The case reached up to the Supreme Court which ruled that as to the ground that the agreement had no force and effect because her husband did not sign the agreement cannot be upheld in view of the actuations of the husband which showed he agreed and gave his conformity to the agreement.

In the decision, the Supreme Court said,

“ x x x As found by the courts below, Renato’s consent to the Agreement was drawn from the fact that he was present at the time it was signed by the sisters and their witnesses; he had knowledge of the Agreement as it was presented to him for his signature, although he did not sign the same because his wife Florinda insisted that her signature already carried that of her husband; Renato witnessed the fact that Leonila contributed her hard earned savings in the amount of P36,000.00 to complete their share in the purchase price of the properties in question in the total amount of P180,000.00. The aforesaid findings of the court below are beyond review at this stage.”

Although the Supreme Court had ruled that even if the husband or spouse did not sign, his actuations and presence would show his consent, it is however, dependent on the facts and only shows that in certain cases, the absence of the signature of the other spouse would not automatically mean that the agreement is void or the party who did not sign can simply move to cancel or declare the agreement void because the spouse did not sign the agreement.

In our real estate practice, it is still deemed best of course to have both spouses sign in a case where it involves the sale or disposition of conjugal property of both spouses in order to ensure that the agreement will be valid.

[ Article written by Atty. Ariel T. Martinez, REALTOR in the issue of The REALTORS Bulletin ]