Boo!!! ’Til death do us part

The death of a family head can cause severe financial dislocation to surviving heirs. ASCENSION.COM.PH

In the evening of August 5, 1987, Badong and Melania committed themselves in Holy Matrimony. They vowed that only death could separate them from one another.

Everything went well for the couple. The couple’s perseverance and industry were rewarded by a 240 sq m conjugal abode in Sampaloc, Manila. After several years, their love nest was soon filled with the cherubic cries of Diego and Sunyi, who saw the light of day on September 7, 1990, and October 9, 1992, respectively.

In the morning of December 25, 2015, the family’s marital bliss, however, came to an abrupt end when Melania died in the hands of an unknown assailant. Badong, Diego, and Sunyi could not believe the rumors going around that their mother was a known drug pusher.

The death of the family’s matriarch caused severe financial dislocation to her surviving heirs, Badong, Diego and Sunyi.

Q:   What should Badong do given the untimely demise of his wife?

A: Since Badong and Melania were married before the Family Code and given the absence of a pre-nuptial agreement, Badong must have their conjugal partnership property liquidated. Its liquidation can be done in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, Badong is required to liquidate the conjugal partnership property either judicially or extra-judicially within six months 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. (Art. 130, Family Code)

Q: How can the estate of Melania be settled?

A: It can be settled extrajudicially or judicially.

If the Melania left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, her heirs may without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. (Section 1, Rule 74 of the Rules of Court)

On the other hand, the judicial settlement of the estate of a deceased person would require the filing of the appropriate petition in court.

Q: What will be the nature of the sale of the Sampaloc home in the event Badong sells the property without liquidating their community property as required by Art. 103 of the Family Code?

A: The disposition by sale of a portion of the conjugal property by the surviving spouse without the prior liquidation mandated by Article 130 of the Family Code is not necessarily void if said portion has not yet been allocated by judicial or extrajudicial partition to another heir of the deceased spouse. At any rate, the requirement of prior liquidation does not prejudice vested rights.

xxx xxx xxx (the) conjugal partnership of gains established before and after the effectivity of the Family Code are governed by the rules found in Chapter 4 (Conjugal Partnership of Gains) of Title IV (Property Relations Between Husband And Wife) of the Family Code. Hence, any disposition of the conjugal property after the dissolution of the conjugal partnership must be made only after the liquidation; otherwise, the disposition is void.

Before applying such rules, however, the conjugal partnership of gains must be subsisting at the time of the effectivity of the Family Code.

xxx xxx xxx. Upon (the death of one spouse), the conjugal partnership was dissolved, pursuant to Article 175 (1) of the Civil Code, and an implied ordinary co-ownership ensued among (the surviving spouse), and the other heirs of (the deceased spouse) with respect to her share in the assets of the conjugal partnership pending a liquidation following its liquidation. The ensuing implied ordinary co-ownership was governed by Article 493 of the Civil Code, to wit:

Article 493. Each 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.

(The surviving spouse), although becoming a co-owner with his children in respect of (deceased spouse’s) share in the conjugal partnership, could not yet assert or claim title to any specific portion of (deceased spouse’s) share without an actual partition of the property being first done either by agreement or by judicial decree.

Until then, all that he had was an ideal or abstract quota in (his deceased spouse’s’) share. Nonetheless, a co-owner could sell his undivided share; hence, (the surviving spouse) had the right to freely sell and dispose of his undivided interest, but not the interest of his co-owners.

Consequently, the sale by (the surviving spouse) and xxx as co-owners without the consent of the other co-owners was not necessarily void, for the rights of the selling co-owners were thereby effectively transferred, making the buyer (xxx) a co-owner of (the deceased spouse’s) share.

This result conforms to 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).

Article 105 of the Family Code, supra, expressly provides that the applicability of the rules on dissolution of the conjugal partnership is “without prejudice to vested rights already acquired in accordance with the Civil Code or other laws.”

This provision gives another reason not to declare the sale as entirely void. Indeed, such a declaration prejudices the rights of (the buyer) who had already acquired the shares of (the surviving spouse) xxx in the property subject of the sale. (The Heirs of Go vs. Servacio, G.R. No. 157537, September 7, 2011)

Q: What is the legal remedy of Diego and Sunyi if Badong sold the Sampaloc property without their consent?

A: xxx xxx xxx, it may be deduced that since a co-owner is entitled to sell his undivided share, a sale of the entire property by one co-owner without the consent of the other co-owners is not null and void. However, only the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property.

The proper action in cases like this is not for the nullification of the sale or for the recovery of possession of the thing owned in common from the third person who substituted the co-owner or co-owners who alienated their shares, but the DIVISION of the common property as if it continued to remain in the possession of the co-owners who possessed and administered it [xxx xxx xxx].

Thus, it is now settled that 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. xxx (The Heirs of Go vs. Servacio, G.R. No. 157537, September 7, 2011)

Ma. Soledad Deriquito-Mawis is currently the Dean of College of Law Lyceum of the Philippines University; and President of Philippine Association of Law Schools