What is the consequence of a donation of a piece of land made by a husband to his

grandson without the consent of his wife? Is it void or valid? Would it matter if,
subsequently, the marriage of the husband and the wife was nullified by a court on the
ground of psychological incapacity? These are the lingering questions answered by the
Supreme Court (SC) in its 24 March 2021 decision entitled Nicxon L. Perez Jr. v. Avegail
Perez-Senerpida (G.R. 233365).

In this case, spouses Eliodoro and Adelita were the registered owners of a parcel of land
in Olongapo City. The spouse had two children Avegail and Adonis. Prior to his marriage
with Adelita, Eliodoro was married and had several children, one of whom was Nicxon
Perez Sr., who sired Nicxon Jr..

In 2004, Eliodoro donated their land to his grandson, Nicxon Jr., without the conformity of
Adelita. In February 2005, Eliodoro filed against Adelita a petition for declaration of nullity
of marriage on the ground of psychological incapacity. The trial court granted the petition
and the judgment became final and executory in July 2005. Eliodoro died in 2008 and, a
year later, an extrajudicial settlement among the heirs was executed. In 2010, Avegail
brought an action of annulment of donation of the land donated by Eliodoro to Nicxon Jr.
on the ground that it was prejudicial to her interest because it affected her future
inheritance or legitime.

The pressing question now before the SC is whether the donation made by Eliodoro to
Nicxon Jr., without the consent of Adelita, is void.

Had Eliodoro’s and Adelita’s marriage not only been nullified on the ground of
psychological incapacity (Article 36 of the Family Code or FC), the question could easily
be answered by a yes. Article 98 of the FC expressly states that “neither spouse may
donate any community property without the consent of the other.” However, since the
spouses’ marriage was declared void under Article 36 of the FC, their property regime is
not governed by Article 98 but by Article 147, which covers the exclusive cohabitation of
a man and woman as husband and wife without the benefit of marriage or under a void
marriage.

In the present case, the SC noted that under Article 147, “there is unfortunately no direct
prohibition on donation of any property acquired during the cohabitation by one party
without the consent of the other.” What Article 147 explicitly and directly proscribes is the
donation of a party’s share (and not necessarily the entire property) in the property
acquired during cohabitation without the consent of the other party, viz.:
Neither party can encumber or 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. (Emphasis supplied)

Notwithstanding, the SC still ruled that the donation made by Eliodoro of the entire
property acquired during their cohabitation sans the consent of Adelita is void. Verily, the
SC stated: “(i)f a disposition of a party’s share in the property under special co-ownership
created by virtue of Article 147 without the consent of the other party is proscribed by law,
then, and with more reason, should the disposition of the entire property under such
special co-ownership by a party without the other party’s consent be considered void as
well.” (Emphasis and underscoring in the original)

The reason for this prohibition, the SC noted, is that if the parties are allowed to dispose
of their shares in said properties like in an ordinary co-ownership, then it will destroy their
relationship.

Quoting the eminent civilist, Dr. Arturo Tolentino, the SC held that the law “would like to
encourage the parties to legalize their union some day and is just smoothing out the way
until their relationship ripens into a valid union.”