The Marriage Series, Part 5: Administration and Enjoyment of the Community Property

Who administers and gets to enjoy the community property? The Family Code provides that the administration and enjoyment of the community property shall belong to both spouses jointly. This means that decisions regarding the management and use of the community property must be made by the spouses together.

What if they disagree on something? The Family Code states that the husband’s decision shall prevail, subject to recourse to the court by the wife for a proper remedy, which must be availed of within five years from the date of the the contract implementing such decision.

What happens if one of the spouses cannot participate in the administration of the common properties? According to the Family Code, in the event that one spouse is incapacitated or otherwise unable to participate in the administration of the common properties, the other spouse may assume sole powers of administration. The Family Code goes on to state that these powers do not include the powers of disposition or encumbrance without the authority of the court or the written consent of the other spouse. This means that the spouse who administers the community property cannot sell or donate the community property, neither can he or she use the community property as collateral for a loan or mortgage the community property, without court authority or the other spouse’s written consent.

What happens if the administering spouse sells or mortgages the community property without court authority or the other spouse’s written consent?  The disposition of the property will be void. The transaction will be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or  authorization by the court before the offer is withdrawn by either or both spouses (Article 96, Family Code). In other words, if the administering spouse sells or mortgages the community property without court authority or the consent of the other spouse, the sale or the mortgage is considered void. The law, however, considers the transaction itself to be a continuing offer for the sale or the mortgage of the community property, and may be perfected as a binding contract once court authority or the written consent of the other spouse is obtained, before one or both of the spouses withdraws the offer.

Can a spouse make a donation from the community property without the consent of the other spouse? Generally, no. As an exception, however, a spouse can make moderate donations from the community property for charity or on occasions of family rejoicing or family distress, without the consent of the other spouse (Article 98, Family Code).