Article 246, 247 & 248 of The Family Code

Title XI.
Summary Judicial
Proceedings in the Family Law
Chapter 2
Separation in fact between
husband and wife
ARTICLE 246, 247 &
248
Article 246
If the petition is not resolved at the initial conference,

said petition shall be decided in a summary hearing on
the basis of affidavits, documentary evidence or oral
testimonies at the sound discretion of the court. If
testimony is needed, the court shall specify the
witnesses to be heard and the subject-matter of their
testimonies, directing the parties to present said
witnesses. (n)
Preceding articles under Title XI Chapter 2 of the Family
Code could be crossed reference to ARTICLE 96 under
Chapter 3 entitled System of Absolute Community and
ARTICLE 124, Section 5, Administration of the Conjugal
Partnership Property
Article 96 . The administration and enjoyment of the community property
shall belong to both spouses jointly. In case of disagreement, the
husband’s decision shall prevail, subject to the recourse of the court by the
wife for proper remedy, which must be availed within five years from the
date of the contract implementing such decision
Art. 124. The administration and enjoyment of the conjugal partnership shall belong to
both spouses jointly. In case of disagreement, the husband’s decision shall prevail,
subject to recourse to the court by the wife for proper remedy, which must be availed of
within five years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or encumbrance without
authority of the court or the written consent of the other spouse. In the absence of such
authority or consent, the disposition or encumbrance shall be void. However, the
transaction shall 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withdrawn by either or both offerors. (165a)
3
Art. 247
The judgment of the court shall be immediately final and executory.
(n)
Art. 248
The petition for judicial authority to administer or encumber specific
separate property of the abandoning spouse and to use the fruits or
proceeds thereof for the support of the family shall also be governed
by these rules. (n)
Explanation:
The law provides the procedure that the court shall undertake in case a transaction seeks
judicial authorization where the consent of one spouse is necessary in such a transaction,
but the consent is withheld or cannot be obtained. This happens when the spouses are
separated in fact or one has abandoned the other. The spouse selling the community
property must ask the approval of the court if consent is withheld or cannot be obtained.
But if there is non appearance after due notices to the other party, ex parte hearings will
proceed and judgment may be rendered based on the documents or pieces of evidence
presented. The court shall make provisions for the protection of interests of the non
appearing spouse. Decision is final and executory, except in cases of grave abuse of
discretion amounting to lack of jurisdiction.
4
G.R. No. 183984 April 13, 2011
ARTURO SARTE FLORES, Petitioner,
vs.
SPOUSES ENRICO L. LINDO, JR. and EDNA C. LINDO, Respondents. Ponente-
Justice ANTONIO T. CARPIO
Facts of the case:

On 31 October 1995, Edna Lindo (Edna) obtained a loan
from Arturo Flores (petitioner) amounting to ₱400,000
payable on 1 December 1995 with 3% compounded
monthly interest and 3% surcharge in case of late payment.
To secure the loan, Edna executed a Deed of Real Estate
Mortgage (the Deed) covering a property in the name of
Edna and her husband Enrico (Enrico) Lindo, Jr. (collectively,
respondents). Edna also signed a Promissory Note and the
Deed for herself and for Enrico as his attorney-in-fact.
5
Edna issued three checks as partial payments for the loan. All
checks were dishonored for insufficiency of funds, prompting
petitioner to file a Complaint for Foreclosure of Mortgage
with Damages against respondents. The case was raffled to
the Regional Trial Court of Manila, Branch 33 (RTC, Branch
33) and docketed as Civil Case No. 00-97942.
In its 30 September 2003 Decision,6 the RTC, Branch 33 ruled
that petitioner was not entitled to judicial foreclosure of the
mortgage. The RTC, Branch 33 found that the Deed was
executed by Edna without the consent and authority of
Enrico. The RTC, Branch 33 noted that the Deed was executed
on 31 October 1995 while the Special Power of Attorney
(SPA) executed by Enrico was only dated 4 November 1995.
6
The RTC, Branch 33 further ruled that petitioner was not
precluded from recovering the loan from Edna as he could file a
personal action against her. However, the RTC, Branch 33 ruled
that it had no jurisdiction over the personal action which should
be filed in the place where the plaintiff or the defendant resides
in accordance with Section 2, Rule 4 of the Revised Rules on Civil
Procedure.
Petitioner filed a motion for reconsideration. In its Order dated 8

January 2004, the RTC, Branch 33 denied the motion for lack of
merit.
On 8 September 2004, petitioner filed a Complaint for Sum of

Money with Damages against respondents. It was raffled to
Branch 42 (RTC, Branch 42) of the Regional Trial Court of Manila,
and docketed as Civil Case No. 04-110858.
7
On 22 July 2005, the RTC, Branch 42 issued an Order denying the motion to
dismiss. The RTC, Branch 42 ruled that res judicata will not apply to rights,
claims or demands which, although growing out of the same subject matter,
constitute separate or distinct causes of action and were not put in issue in the
former action. Respondents filed a motion for reconsideration. In its Order9
dated 8 February 2006, the RTC, Branch 42 denied respondents’ motion. The
RTC, Branch 42 ruled that the RTC, Branch 33 expressly stated that its decision
did not mean that petitioner could no longer recover the loan petitioner
extended to Edna.
Respondents filed a Petition for Certiorari and Mandamus with Prayer for a
Writ of Preliminary Injunction and/or Temporary Restraining Order before the
Court of Appeals.
8
The Court of Appeals set aside the 22 July 2005 and 8 February 2006 Orders of the RTC, Branch 42
for having been issued with grave abuse of discretion.
The Court of Appeals ruled that while the general rule is that a motion to dismiss is interlocutory
and not appealable, the rule admits of exceptions. The Court of Appeals ruled that the RTC, Branch
42 acted with grave abuse of discretion in denying respondents’ motion to dismiss.
The Court of Appeals ruled that under Section 3, Rule 2 of the 1997 Rules of Civil Procedure, a
party may not institute more than one suit for a single cause of action. If two or more suits are
instituted on the basis of the same cause of action, the filing of one on a judgment upon the merits
in any one is available ground for the dismissal of the others. The Court of Appeals ruled that on a
nonpayment of a note secured by a mortgage, the creditor has a single cause of action against the
debtor, that is recovery of the credit with execution of the suit. Thus, the creditor may institute two
alternative remedies: either a personal action for the collection of debt or a real action to foreclose
the mortgage, but not both. The Court of Appeals ruled that petitioner had only one cause of
action against Edna for her failure to pay her obligation and he could not split the single cause of
action by filing separately a foreclosure proceeding and a collection case. By filing a petition for
foreclosure of the real estate mortgage, the Court of Appeals held that petitioner had already
waived his personal action to recover the amount covered by the promissory note.
Petitioner filed a motion for reconsideration. In its 4 August 2008 Resolution, the Court of Appeals
denied the motion.
9
Issue:
Whether or not the REM for the conjugal property, entered into by only one
spouse is valid or not?
Held
The Deed of Real Estate Mortgage was executed by defendant Edna Lindo
lacks the consent or authority of her husband Enrico Lindo, the Deed of Real
Estate Mortgage is void pursuant to Article 96 of the Family Code.
This does not mean, however, that the plaintiff cannot recover the ₱400,000
loan plus interest which he extended to defendant Edna Lindo. He can
institute a personal action against the defendant for the amount due which
should be filed in the place where the plaintiff resides, or where the
defendant or any of the principal defendants resides at the election of the
plaintiff in accordance with Section 2, Rule 4 of the Revised Rules on Civil
Procedure.
The 30 May 2008 Decision and the 4 August 2008 Resolution of the
Court of Appeals in CA-G.R. SP No. 94003 were SET ASIDE. The
Regional Trial Court of Manila, Branch 42 was directed to proceed
with the trial of Civil Case No. 04-110858.
10
Thank you po
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Title XI.

If the petition is not resolved at the initial conference,

Facts of the case:

Petitioner filed a motion for reconsideration. In its Order dated 8

On 8 September 2004, petitioner filed a Complaint for Sum of

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