In a corporation, the shares of stocks are considered as personal property and the owner thereof has an inherent right as an incident of his ownership, to transfer the same at will.
The property relation of husband and wife is governed by Article 75 of the Family Code. It provides that spouses are given the freedom to choose which property regime may govern them during the marriage. Unless a different system of property relation is agreed upon by the spouses, the property relation between husband and wife shall be governed by the system of absolute community of property.
Assuming that the husband and wife failed to agree on what property regime to adopt, the shares they used to own individually would have to be deemed as community property and shall be governed by the rules on co-ownership (SEC Opinion dated 4 September 1990, as cited inSEC-OGC Opinion No. 19-09). As co-owners thereof, the spouses may, at their option, request the Corporate Secretary to issue the certificate in the name of the spouses.
Under the system of absolute community of property, the selling of property between the spouses is prohibited by law (Art. 1490, Civil Code of the Philippines). Likewise, donations between them during marriage are prohibited (Art. 87, Family Code of the Philippines). The reason for the prohibition is to protect the institution of marriage since such transfers or conveyances would destroy the system of conjugal partnership if the spouses were allowed to do so. It also prevents the exercise of undue influence by one spouse over the other.
If the shares are among the excluded properties under Article 92 of the Family Code, or where the spouses have chosen a marriage settlement other than a system of absolute community of property, the sale and assignment of shares between husband and wife shall be recorded in the stock and transfer book only upon compliance with Section 62 of the Revised Corporation Code.
Assignment of shares, if valid, shall be transferred in accordance with the provisions under Section 62 of the Revised Corporation Code, which reads:
“Shares of stock so issued are personal property and may be transferred by delivery of the certificate or certificates indorsed by the owner, his attorney-in-fact, or any other person legally authorized to make the transfer. No transfer, however, shall be valid, except as between the parties, until the transfer is recorded in the books of the corporation showing the names of the parties to the transaction, the date of transfer, the number of the certificate or certificates, and the number of shares transferred.”Considering that a BIR eCAR is necessary to complete the transfer of shares of stock, the BIR will easily flag this transaction and will not issue the BIR eCAR in your favor if the parties are shown to be spouses in their records. The BIR can easily track if the parties (buyer or seller) are married to each other thru the TIN verification because at the time of the TIN registration the civil status of the Tax payer is already divulged.
