2011-78069

Submitted to: Professor Rowena Daroy-Morales

Facts: Mr. A owns a ten door tenement in Quezon City. Ms. B owns a few hectares of land in Bulacan. They were married in 1985 and the property regime that applies to their marriage is a conjugal partnership of gains. They lived together as husband and wife and raised their family in one of the doors of the tenement owned by A. Eventually, their relationship soured and A acquired a mistress. At present, A wants B to leave the tenement because he wants to sell the property. Legal Question: Does A have a right to expel B from his property because he is going to sell it? Brief Answer: No, A cannot expel B from his property as he cannot sell said property because it is a considered a family home and, seeing as A is still married to B, he cannot sell the property without first obtaining the consent of B. B has all the right to stay as As legal spouse. Discussion: In resolving the above question, the following provisions of law apply. The New Civil Code provides: Art. 223. The family home is the dwelling house where a person and his family reside , and the land on which it is situated. If constituted as herein provided, the family home shall be exempt from execution, forced sale or attachment, except as provided in Articles 232 and 243. Art. 224. The family home may be established judicially or extrajudicially. The Family Code provides: Art. 152. The family home, constituted jointly by the husband and the wife or by an unmarried head of a family, is the dwelling house where they and their family reside, and the land on which it is situated. (223a) Art. 153. The family home is deemed constituted on a house and lot from the time it is occupied as a family residence. From the time of its constitution and so long as any of its beneficiaries actually resides therein, the family home continues to be such and is exempt from execution, forced sale or attachment except as hereinafter provided and to the extent of the value allowed by law. (223a) Art. 158. The family home may be sold, alienated, donated, assigned or encumbered by the owner or owners thereof with the written consent of the person constituting the same, the latter's spouse, and a majority of the beneficiaries of legal age. In case of conflict, the court shall decide. (235a) Art. 162. The provisions in this Chapter shall also govern existing family residences insofar as said provisions are applicable. (n) Articles 223 of the NCC and 152 of the FC provide for the definition of the family home. Articles 224 of the NCC and 153 of the FC provide for the constitution of the family home . Although the marriage was established before 1988, which was before the establishment and implementation of the Family Code, Art 162 provides that all of its provisions regarding the Family Home shall have retroactive effect to all established family residences as soon as the family code came into effect. Seeing as A and B have used one door of As tenement as a family residence, it is automatically constituted as a family home. A family home, as provided by Art. 158, cannot be sold by the owner thereof without the written consent of the person constituting the sale and his spouse. Without the consent of his spouse, A cannot sell the part of the tenement which is considered their family home.