Property rules

A widower’s undivided share

In the early ’40s, Tac and Flor promised to love each other for better or for worse until their last breath. As they prospered, Tac and Flor bought a property consisting of a one-half undivided portion over an 18,000 sqm parcel of land.

The sale was annotated on the Original Certificate of Title covering the subject property.


Due to a pressing family need, Tac had to borrow money from friends—spouses Gene and Elen. Meanwhile, the blissful togetherness of Tac and Flor came to an abrupt end when Flor joined her heavenly Creator.

After the death of his wife in the ’70s, Tac sold his interest over the land to the spouses Molina to answer for his debts. The sale to the spouses Molina was annotated at the OCT of the subject property. Years later, Tac joined his eternal love in their Creator’s abode.


Subsequently, the sale of Tac’s interest was registered and a new transfer certificate of title was issued. The registration transferred the entire one-half undivided portion of the land to spouses Gene and Elen.

Mel, one of the children of Tac and Flor, learned of the transfer and filed a Complaint for Annulment of Title and Recovery of Ownership (Complaint) against the spouses Gene and Elen. Mel claimed that his father gave the subject property to Gene and Elen to serve as collateral for the money that Tac borrowed. Moreover, according to Mel, his father could not have validly sold the interest over the subject property without Flor’s consent, as Flor was already dead at the time of the sale.

Q: What is the property relation of Tac and Flor who were married in the ’40s?

A: Their property relations is a conjugal partnership since they were married before the Family Code’s effectivity on August 3, 1988.

Q: What is the effect of Flor’s death on their property relationship?

A: The conjugal partnership of Tac and Flor was dissolved when Flor died pursuant to Article 175 (1) of the Civil Code, now Art. 126 (1) of the Family Code).

Q: What must be done insofar as the conjugal properties are concerned when the marriage is terminated by death?


A: Consequently, pursuant to Article 130 of the Family Code, upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extrajudicially within one year from the death of the deceased spouse. If upon the lapse of the six month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void. x x x

While Article 130 of the Family Code provides that any disposition involving the conjugal property without prior liquidation of the partnership shall be void, this rule does not apply since the provisions of the Family Code shall be “without prejudice to vested rights already acquired in accordance with the Civil Code or other laws.”

Q: What then would be the nature of the properties of a dissolved conjugal partnership?

A: The properties of a dissolved conjugal partnership would fall under the regime of co-ownership among the surviving spouse and the heirs of the deceased spouse until final liquidation and partition. The surviving spouse, however, has an actual and vested one-half undivided share of the properties, which does not consist of determinate and segregated properties until liquidation and partition of the conjugal partnership.

Thus, in this case, an implied ordinary co-ownership ensued among Flor’s surviving heirs, including Tac, with respect to Flor’s share of the conjugal partnership until final liquidation and partition; Tac, on the other hand, owns one-half of the original conjugal partnership properties as his share, but this is an undivided interest.

Q: What does the undivided share of Tac consist of?

A: Tac’s undivided interest in the conjugal properties consisted of: (1) one-half of the entire conjugal properties; and (2) his share as Flor’s heir on the conjugal properties.

Q: Can Tac, the widower, sell his undivided share in the property without an actual partition being done?

A: Yes, he can. Article 493 of the Civil Code on co-ownership provides that “(e)ach co-owner shall have the full ownership of his part and of the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its enjoyment, except when personal rights are involved.

But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership.

Clearly, while Tac, as co-owner, cannot claim title to any specific portion of the conjugal properties without an actual partition being first done either by agreement or by judicial decree, he has the right to freely sell and dispose of his undivided interest in the subject property.

It must be stressed, however, that Tac, as a co-owner, has the right to freely sell and dispose of his undivided interest, but not the interest of his co-owners. Consequently, Tac’s sale to the spouses Gene and Elen without the consent of the other co-owners was not totally void, for Tac’s rights or a portion thereof were thereby effectively transferred, making the spouses Gene and Elen co-owners of the subject property to the extent of Tac’s interest.

This result conforms with the well-established principle that the binding force of a contract must be recognized as far as it is legally possible to do so (quando res non valet ut ago, valeat quantum valere potest).

The spouses Molina would thus be trustees for the benefit of the co-heirs of Tac in respect of any portion that might belong to the co-heirs after liquidation and partition.

Q: What is the remedy available to Mel as a co-owner?

A: The appropriate recourse of co-owners in cases where their consent were not secured in a sale of the entire property as well as in a sale merely of the undivided shares of some of the co-owners is an action for partition under Rule 69 of the Revised Rules of Court.”

(Source: Domingo vs. Sps. Molina, G.R. No. 200274, April 20, 2016)

Ma. Soledad Deriquito-Mawis is Dean, College of Law at the Lyceum of the Philippines University; Chairperson, Philippine Association of Law Schools; and founder of Mawis Law Office

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TAGS: Original Certificate of Title, property, Tac and Flor
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