GRATUITOUS DISPOSITION OF PROPERTY ACQUIRED DURING A VOID MARRIAGE
In the recent case of Nicxon L. Perez, Jr. vs. Avegail Perez-Senerpida, et al. (G.R. No. 233365, 24 March 2021), the Supreme Court laid down the rules on the gratuitous disposition of property acquired during a void marriage in the following manner:
1. The property acquired during a void marriage is governed by the rule on “special co-ownership” under Article 147 of the Family Code, as follows:
“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 of 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.
When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children. In case of fault of or waiver by any or all of the common children or their descendants, each vacant shall belong to the respective surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases, the forfeiture shall take place upon termination of the cohabitation.”
2. Article 147 expressly prohibits a party to a cohabitation to encumber or alienate by act inter vivos even his or her share in the property acquired during cohabitation and owned in common, without the consent of the other party until after the termination of the cohabitation. The rules on ordinary co-ownership under Article 493 of the Civil Code, i.e.,
“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.”
cannot supersede, and must yield to, Article 147 of the Family Code.
3. Donation, made prior to the termination of cohabitation, of any property acquired during cohabitation by one party, without the consent of the other, is therefore void. The rule applies even to the share of the donor in the property acquired during cohabitation.