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Section 7. Liquidation of the Conjugal Partnership Assets and Liabilities

Art. 129. Upon the dissolution of the conjugal partnership regime, the following procedure shall apply:

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(1) An inventory shall be prepared, listing separately all the properties of the conjugal partnership and
the exclusive properties of each spouse.

INVENTORY. The process of making an inventory is the same as that in the absolute community of
property contained in Article 102(1). All properties or assets at the time of the dissolution, whether
belonging to the conjugal partnership or separate property of the spouses, must be inventoried. They
must all be itemized and usually valued. Relevantly, it is error to determine the amount to be divided by
adding up the profits which had been made on each year of the community’s continuance and saying
that the result thereof is that amount. In the appraisal of the properties, it is not the purchase but the
market or, in default thereof, the assessed value at the time of the liquidation that must be taken into
account

NOTE:

However, the process of liquidation may take some time. If the proceedings take a long time and the
values have suffered some alterations, there is nothing to prevent a new valuation when the last stage is
reached, i.e., the actual division or partition comes, so long as all the properties are newly appraised in
reference to the same period of time. There is no law or doctrine that a prior appraisal is conclusive
upon the parties and the courts

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(2) Amounts advanced by the conjugal partnership in payment of personal debts and obligations of
either spouse shall be credited to the conjugal partnership as an asset thereof.

CREDITS IN FAVOR OF PARTNERSHIP. Any amount advanced during the marriage by the conjugal
partnership in favor of any of the spouses shall be credited to the conjugal partnership as an asset.

NOTE:

Thus, the advances made by the conjugal partnership of gains in paying the support of the illegitimate
child of either spouse, the personal debts contracted before the marriage which did not redound to the
benefi t of the family and the payments of fi nes and pecuniary indemnities for which the spouse was
made liable and which did not redound to the benefi t of the family, provided for in Article 122, shall be
considered as assets. Also, in cases of property bought by instalments under Article 118 where conjugal
funds and separate funds were used and where the property was owned separately by either of the
spouses, the amount of conjugal funds used for completing the installment purchase shall likewise be
considered as an asset owing to the conjugal partnership of gains. This is also true with respect to
advances made by the conjugal property involving charges relative to the onerous donations made in
favor of a particular spouse (Article 114).

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(3) Each spouse shall be reimbursed for the use of his or her exclusive funds in the acquisition of
property or for the value of his or her exclusive property, the ownership of which has been vested by
law in the conjugal partnership.

REIMBURSEMENT IN FAVOR OF SPOUSE. If separate funds of any of the spouses are used to buy
conjugal property, such amount shall be reimbursed to the spouse. Also, the conjugal partnership shall
reimburse the wife for the value of exclusive properties, the ownership of which has been vested by law
in the conjugal partnership

NOTE:

as in the case described in Article 120 of the Family Code. In a case where a building separately owned
by the wife was torn down to make way for the construction of new buildings owned by the conjugal
partnership property, the value of the torn building should be paid by the conjugal partnership to the
separate spouse at the time of liquidation considering that the tearing down of the building benefited
the partnership.

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(4) The debts and obligations of the conjugal partnership shall be paid out of the conjugal assets. In
case of insuffi ciency of said assets, the spouses shall be solidarily liable for the unpaid balance with
their separate properties, in accordance with the provisions of paragraph (2) of Article 121.

PAYMENT OF DEBTS AND OBLIGATIONS OF PARTNERSHIP. The partnership during its existence may have
incurred debts and obligations such as those enumerated in Article 121. They should be paid. It is
interesting to note that, under the procedure laid down in Article 129, the reimbursement of the
spouses for advances they made in favor of the conjugal partnership or for the value of their separate
property which, by law, was vested to the partnership, has to be paid fi rst before paying the other
debts and obligations of the conjugal partnership.

In the event that the conjugal partnership is terminated, Article 310 of the Civil Code provides that the
construction of a tombstone or mausoleum shall be part of the funeral expenses, and shall be
chargeable to the conjugal partnership property, if the deceased is one of the spouses.

In case of insufficiency of said assets, the spouses shall be solidarily liable for the unpaid balance with
their separate properties, in accordance with the provisions of paragraph (2) of Article 121.
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(5) Whatever remains of the exclusive properties of the spouses shall thereafter be delivered to each
of them.

DELIVERY OF SEPARATE PROPERTIES. The exclusive properties are owned by either of the spouses.
Hence, it is but proper to immediately deliver from the inventory what they respectively own so that
they can immediately use the same.

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(6) Unless the owner had been indemnified from whatever source, the loss or deterioration of
movables used for the benefit of the family, belonging to either spouse, even due to fortuitous event,
shall be paid to said spouse from the conjugal funds, if any.

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(7) The net remainder of the conjugal partnership properties shall constitute the profits, which shall
be divided equally between husband and wife, unless a different proportion or division was agreed
upon in the marriage settlements or unless there has been a voluntary waiver or forfeiture of such
share as provided in this Code.

DIVISION OF NET REMAINDER. The interest of the parties is limited to the net remainder which
constitutes the profi ts of the conjugal partnership property. As clearly seen, until a liquidation has been
made, it is impossible to say whether or not there will be a net remainder to be divided between the
parties. The sharing will be equal unless there is a different proportion or division agreed upon in the
marriage settlement, or unless there has been a voluntary waiver of such share as provided for in the
Family Code. The waiver, however, must be valid. If the waiver of rights refers to those made during the
subsistence of the conjugal partnership of gains, such waiver is invalid and ineffective as it is prohibited
under Article 107 in relation to Article 89. A valid waiver can only occur upon a judicial separation of
property or after the marriage has been dissolved or annulled and must be contained in a public
instrument, as provided for under the second paragraph of Article 107 in relation to Article 89.

NOTE:

In case of annulment of marriage, the conjugal partnership property shall be dissolved and liquidated,
but if either spouse contracted said marriage in bad faith, his or her share of the net profits of the
conjugal partnership property shall be forfeited in favor of the common children, or if there are none,
the children of the guilty spouse by a previous marriage, or in default of children, the innocent spouse
(Article 50, in relation to Article 43[2]).

It must likewise be recalled that in cases of legal separation and annulment of marriage, the party in bad
faith shall forfeit his share in the net profits which shall be the increase in value between the market
value of the community property at the time of the celebration of the marriage and the market value at
the time of its dissolution.
In case the marriage is judicially nullified and when the informal civil relationship is governed by Article
147 and when only one of the parties to a void marriage is in good faith, the share of the party in bad
faith in the co-ownership shall be forfeited in favor of their common children. In case of default of or
waiver by any or all of the common children or their descendants, each vacant share shall belong to the
respective surviving descendants. In the absence of descendants, such share shall belong to the
innocent party. In all cases, the forfeiture shall take place upon the termination of cohabitation. This
rule shall likewise apply in cases of void marriages where the property relationship is governed by Article
148. However, this rule will not apply to a subsequent void marriage as a result of the non-observance
of Article 40 in relation to Articles 52 and 53. In this case, the rule that will apply is Article 50 in relation
to Article 43(2), which is the forfeiture rule in case of the liquidation of the conjugal partnership of gains.

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(8) The presumptive legitimes of the common children shall be delivered upon partition in accordance
with Article 51.

DELIVERY OF THE PRESUMPTIVE LEGITIME. The presumptive legitime is delivered only after the fi nality
of a judicial decree of annulment on grounds provided in Article 45 or of nullity of a subsequent void
marriage under Article 40. The law clearly provides that such delivery should only be “in accordance
with Article 51” which only refers to the termination of marriage either by an annulment or a nullity
judgment in the proper cases. Hence, delivery of the presumptive legitime need not be made in cases of
legal separation or in case of a void marriage not as a result of the non-observance of Article 40 in
relation to Articles 52 and 53. Considering that the delivery of the presumptive legitime shall be
provided for in the fi nal judgment, the children or their guardian, or the trustee of their property may
ask for the enforcement of the judgment in accordance with the last paragraph of Article 51. The value
of the presumptive legitimes of all the children, computed as of the date of the fi nal judgment of the
trial court, shall be delivered in cash, property or sound securities, unless the parties, by mutual
agreement judicially approved, had already provided for such matters (Article 51).

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(9) In the partition of the properties, the conjugal dwelling and the lot on which it is situated shall,
unless otherwise agreed upon by the parties, be adjudicated to the spouse with whom the majority of
the common children choose to remain. Children below the age of seven years are deemed to have
chosen the mother, unless the court has decided otherwise. In case there is no such majority, the
court shall decide, taking into consideration the best interests of said children. (181a, 182a, 183a,
184a, 185a)

CONJUGAL DWELLING. Unless otherwise agreed upon by the parties, in the partition of the properties,
the conjugal dwelling and the lot on which it is situated shall be adjudicated to the spouse with whom
the majority of the common children choose to remain. Children below the age of seven years are
deemed to have chosen the mother, unless the court has decided otherwise. In case there is no such
majority, the court shall decide, taking into consideration the best interests of said children.

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Case:

Valencia v. Locquiao G.R. No. 122134, October 3,2003. As provided in Art. 129, express acceptance is not
necessary for the validity of donation propter nuptias. Implied acceptance is sufficient.

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Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be
liquidated in the same proceeding for the settlement of the estate of the deceased.

If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal
partnership property either judicially or extrajudicially within six months from the death of the
deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or
encumbrance involving the conjugal partnership property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing
requirements, a mandatory regime of complete separation of property shall govern the property
relations of the subsequent marriage. (n)

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Liquidation Under the Revised Rules of Court

“Where estate settled upon the dissolution of marriage. — When the marriage is dissolved by the death
of the husband or wife, the community property shall be inventoried, administered, and liquidated, and
the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses
have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either.’’
(Sec. 2, Rule 73, Revised Rules of Court).

NOTE:

(The above-mentioned procedure is applicable only when the marriage is dissolved by the death of one
or both of the spouses. When the conjugal partnership is dissolved by a decree of legal separation, or
when the marriage is annulled, or when there is a judicial separation of property, the liquidation of the
conjugal partnership will be done in the respective proceedings.)

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Where or How Liquidation of the Conjugal Partnership is Made

(a) In case the cause of dissolution is death of one of the spouses

1) Testate or intestate proceedings of the deceased spouse. (Sec. 2, Rule 73, Revised Rules of Court

2) Extra-judicial partition between the surviving spouse and the heirs of the deceased spouse, provided
that there are no debts and provided, furthermore, that all concerned are of age, or are duly
represented by their judicial guardians in the case of minors. (Sec. 1, Rule 74, Revised Rules of Court

3) An ordinary judicial action for partition. This is proper because in said action for partition the
liquidation of the conjugal partnership is already implied.

(b) In case the cause of dissolution is legal separation, annulment of the marriage or judicial separation
of property, the liquidation should ordinarily take place in said respective proceedings. However, it
would be also proper to liquidate in an extra-judicial partition (except if the cause is separation of
property by judicial decree) or in an ordinary action for partition, if there had been no liquidation in the
legal separation, annulment, or judicial separation of property proceedings.

[NOTE: In a proceeding where the conjugal partnership is going to be liquidated, it is essential that the
children even of prior marriages be notifi ed personally of such proceeding.

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Benigno v. De la Peña

57 Phil. 305

Both husband and wife died. May the liquidation of the conjugal partnership be made in the intestate
proceedings of the wife?

HELD: Yes, the law says that “if both spouses have died, the conjugal partnership shall be liquidated in
the testate or intestate proceedings of either.” As a matter of fact, it would be proper to settle the
estate of the husband, the estate of the wife, and to liquidate the conjugal partnership all in one
proceeding.

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De Gala v. De Gala

60 Phil. 311

FACTS: X claimed to be Y’s child and fi led an action for acknowledgment by him while Y was still alive.
Pending the action, Y died, and the new defendants were Y’s heirs. Before the action could be
terminated, said heirs and Y’s widow extrajudicially partitioned the property among themselves, thereby
liquidating the conjugal partnership. Is the partition valid?

HELD: The partition is null and void, for it was made pending an action for acknowledgment, and
impliedly for inheritance. Hence, also, the widow and the heirs can be ordered to render an accounting
of their possession and administration to the court before whom acknowledgment and probate
proceedings were pending.

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Paz Y. Ocampo, et al. v. Conrado Potenciano, et al.

FACTS: One of the spouses died. The surviving spouse claims that, under the law, the conjugal
partnership affairs must be liquidated by said spouse necessarily. Is this contention correct?

HELD: The surviving spouse is not necessarily the liquidator of the dissolved conjugal partnership. The
rule that the husband must liquidate the partnership affairs is now obsolete. Upon the dissolution of the
marriage due to the death of either the husband or the wife, the conjugal partnership affairs must be
liquidated in the testate or intestate proceedings of the deceased spouse.

Liquidation Under the Revised Rules of Court

“Where estate settled upon the dissolution of marriage. — When the marriage is dissolved by the death
of the husband or wife, the community property shall be inventoried, administered, and liquidated, and
the debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses
have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either.’’
(Sec. 2, Rule 73, Revised Rules of Court).

(The above-mentioned procedure is applicable only when the marriage is dissolved by the death of one
or both of the spouses. When the conjugal partnership is dissolved by a decree of legal separation, or
when the marriage is annulled, or when there is a judicial separation of property, the liquidation of the
conjugal partnership will be done in the respective proceedings.)

Where or How Liquidation of the Conjugal Partnership is Made

(a) In case the cause of dissolution is death of one of the spouses

1) Testate or intestate proceedings of the deceased spouse. (Sec. 2, Rule 73, Revised Rules of Court;
Caragay v. Urquiza, 53 Phil. 72).

2) Extra-judicial partition between the surviving spouse and the heirs of the deceased spouse, provided
that there are no debts and provided, furthermore, that all concerned are of age, or are duly
represented by their judicial guardians in the case of minors. (Sec. 1, Rule 74, Revised Rules of Court; see
also De Gala v. De Gala, 60 Phil. 311; also Calma v. Tañedo, 38 O.G. 1963; Fox v. Villanueva, [C.A.] 47
O.G. 4653).

3) An ordinary judicial action for partition. (Fox v. Villanueva, supra; Calma v. Tañedo, 38 O.G. 1963). This
is proper because in said action for partition the liquidation of the conjugal partnership is already
implied. (Cruz v. De Jesus, 62 Phil. 870; see also Caragay v. Urquiza, 53 Phil. 72).
(b) In case the cause of dissolution is legal separation, annulment of the marriage or judicial separation
of property, the liquidation should ordinarily take place in said respective proceedings. However, it
would be also proper to liquidate in an extra-judicial partition (except if the cause is separation of
property by judicial decree) or in an ordinary action for partition (See Fox v. Villanueva, [C.A.] 47 O.G.
4653), if there had been no liquidation in the legal separation, annulment, or judicial separation of
property proceedings.

[NOTE: In a proceeding where the conjugal partnership is going to be liquidated, it is essential that the
children even of prior marriages be notifi ed personally of such proceeding. (In Re: Voluntary Dissolution
of the Conjugal Partnership of Jose Bernas, Sr. and Pilar Manuel Bernas, L-20379, June 22, 1965, 14 SCRA
327).].

Some Cases

Fox v. Villanueva

(C.A.) 47 O.G. 4653

ISSUE: If there is a judicial separation of property, would it be proper to have an extra-judicial partition
to liquidate the conjugal partnership?

HELD: No, for here a judicial decree is required

Benigno v. De la Peña

57 Phil. 305

Both husband and wife died. May the liquidation of the conjugal partnership be made in the intestate
proceedings of the wife?

HELD: Yes, the law says that “if both spouses have died, the conjugal partnership shall be liquidated in
the testate or intestate proceedings of either.” As a matter of fact, it would be proper to settle the
estate of the husband, the estate of the wife, and to liquidate the conjugal partnership all in one
proceeding.

De Gala v. De Gala

60 Phil. 311

FACTS: X claimed to be Y’s child and fi led an action for acknowledgment by him while Y was still alive.
Pending the action, Y died, and the new defendants were Y’s heirs. Before the action could be
terminated, said heirs and Y’s widow extrajudicially partitioned the property among themselves, thereby
liquidating the conjugal partnership. Is the partition valid?

HELD: The partition is null and void, for it was made pending an action for acknowledgment, and
impliedly for inheritance. Hence, also, the widow and the heirs can be ordered to render an accounting
of their possession and administration to the court before whom acknowledgment and probate
proceedings were pending.

Participation of Minors in Extra-judicial Partition

An extra-judicial partition can bind a minor as long as he is duly represented. (Centeno v. Centeno, 52
Phil. 323). The representative must be a judicial guardian (Sec. 1, Rule 74, Revised Rules of Court), or the
father, or in his absence, the mother, who are by law the guardians of the children under the Civil Code.
(Art. 320, Civil Code).

Oral Extra-judicial Partition May Be Valid

The Rules of Court provides that the extra-judicial partition must be made in a public instrument fi led in
the offi ce of the register of deeds, but it has been held that this requirement is only for the protection
of creditors so that as between the heirs, an oral partition may even be proper. (Hernandez v. Andal, et
al., 44 O.G. No. 8, 2672).

Effect of Extra-judicial Partition Approved by the Court

If an extra-judicial partition is submitted to and approved by the court, it becomes a judicial partition
and is fi nal and absolute upon all parties who took part in the partition agreement and acquiesced
therein. (Centeno v. Centeno, 52 Phil. 323).

How to Question a Fraudulent Extra-judicial Partition

If it is claimed that an extra-judicial partition was brought by fraud, or that it was not valid, such claims
should necessarily be presented in an ordinary action brought for the precise purpose of setting aside
the partition. (Mendiola v. Mendiola, 7 Phil. 71).

Where Questions Should be Raised

If the cause of dissolution of the conjugal partnership is the death of one of the spouses, the procedure
relative to the liquidation and distribution of the estate is addressed to the probate court in the
testamentary or intestate proceedings of the deceased spouse, or to the competent court, in an
ordinary case of liquidation and distribution, and it is there where all questions regarding the nature of
the various classes of properties should be raised properly to determine whether or not they are
paraphernal, private property of the husband, conjugal property, or subject to collation. After fi nishing
the inventory, the deduction shall then be made as indicated in Arts. 180 to 188 of the Civil Code. (Tim v.
Del Rio [C.A.], 37 O.G. No. 19, p. 386).

Valuation of Assets in the Inventory

(a) In making the inventory, should all acquired assets be noted down, or merely the assets existing at
the time of liquidation?

ANSWER: In liquidating a conjugal partnership, an inventory of the actual property possessed by the
spouses at the time of the dissolution must be made. It is error to determine the amount to be divided
by adding up the profi ts which had been made in each year of its continuance, and saying that the
result is that amount. (Patricio v. Patricio, 48 Phil. 749).

(b) A husband deposited several amounts of conjugal funds in a bank. But before his wife died, said
amounts were withdrawn and spent. Should said bank accounts be included in the inventory as conjugal
assets?

ANSWER: No, said bank accounts should not be included in the inventory as conjugal assets inasmuch as
they no longer existed at the time of the dissolution of the partnership. (Patricio v. Patricio, 48 Phil.
759).

(c) In computing the value of the real property included in the inventory, what price should be noted
down, the price at the time of acquisition or the price at the time of liquidation?

ANSWER: The price at the time of liquidation. (Prado v. Natividad, 47 Phil. 775).

(d) We now know that in evaluating the real property, we should consider the value at the time of the
liquidation of the partnership. The question to determine now is: How can we get the value at the time
of the liquidation of the partnership?

ANSWER: We fi rst get the market value of the property. In default of this, we should consider the
assessed value. (Prado v. Natividad, 47 Phil. 775).

Administration During Liquidation

(a) Is the surviving spouse necessarily the administrator and liquidator of the conjugal property while it
is being liquidated?

ANSWER: No. According to the case of De Gala v. De Gala and Alabastre, 60 Phil. 311, “When the
husband dies, the conjugal property must be liquidated by the administrator appointed in his
testamentary or intestate proceedings, and not necessarily by the surviving wife.’’

(b) A husband sold conjugal property (land) after the death of his wife. Is the sale valid or not?

ANSWER: The sale is not valid with reference to the share belonging to the deceased wife and her heirs.
(Coronel v. Ona, 33 Phil. 456).

(c) Does it mean then that whenever a part of the conjugal property is alienated or mortgaged by the
surviving spouse, said alienation or mortgage is void ab initio?

ANSWER: No. We have to consider several things. If it turns out that the property alienated or
mortgaged really would pertain to the share of the surviving spouse, then said transaction is valid. If it
turns out that there really would be, after the liquidation, no more conjugal assets then the whole
transaction is null and void. But if it turns out that half of the property thus alienated or mortgaged
belongs to the husband as his share in the conjugal partnership, and half should go to the estate of the
wife, then that corresponding to the husband is valid, and that corresponding to the other is not. Since
all these can be determined only at the time the liquidation is over, it follows logically that a disposal
made by the surviving spouse is not void ab initio. Thus, it has been held that the sale of conjugal
properties cannot be made by the surviving spouse without the legal requirements. The sale is void as to
the share of the deceased spouse (except of course as to that portion of the husband’s share inherited
by her as the surviving spouse). The buyers of the property that could not be validly sold become
trustees of said portion for the benefi t of the husband’s other heirs, the cestui que trustent. Said heirs
shall not be barred by prescription or by laches. (See Cuison, et al. v. Fernandez, et al., L-11764, Jan. 31,
1959).

Paz Y. Ocampo, et al. v. Conrado Potenciano, et al. 89 Phil. 159

FACTS: One of the spouses died. The surviving spouse claims that, under the law, the conjugal
partnership affairs must be liquidated by said spouse necessarily. Is this contention correct?

HELD: The surviving spouse is not necessarily the liquidator of the dissolved conjugal partnership. The
rule that the husband must liquidate the partnership affairs is now obsolete. Upon the dissolution of the
marriage due to the death of either the husband or the wife, the conjugal partnership affairs must be
liquidated in the testate or intestate proceedings of the deceased spouse..

Rule in Case of Separation of Property

If H and W are living under the regime of complete separation of property, or if during the marriage,
there was judicial separation of property, there is no more necessity of making an inventory when the
marriage is at last dissolved, for then there will be no more conjugal partnership to liquidate. Art. 179,
No. (2), if it has to have a valid meaning should read: “When separation of property has preceded the
dissolution of the marriage’’ (not ‘‘partnership’’). A separation of property during marriage without
court approval is void. (See Art. 19).

Jurisdiction of the Court

The conjugal partnership ceases upon the dissolution of the marriage. Hence, upon the death of one of
the spouses, and before the property can be adjudicated to his or her heirs, there must be a liquidation
of the conjugal partnership. Consequently, the court in which a petition for the summary settlement of
the estate of the deceased husband has been fi led has jurisdiction to pass upon the question of
ownership of the property among the heirs of the deceased. The rule that the court in an estate
proceeding has no jurisdiction to pass upon the title to real property is true only where the title is
disputed by a third person, not by the surviving spouse or heirs of the deceased. (Falcatan v. Sanchez, et
al., L-9247, May 31, 1957).

Necessity of Liquidation Before Sale of Deceased’s Assets

The conjugal partnership should fi rst be liquidated and any question of ownership should fi rst be
resolved before the sale of the property of a deceased spouse can be allowed or authorized. (Anderson
v. Perkins, L-15388, Jan. 31, 1961).

Phil. National Bank v. Court of Appeals 98 SCRA 207

A surviving spouse is not allowed by law to mortgage all by herself, land formerly belonging to the
conjugal partnership (unless of course she is the sole heir thereto).

Del Mundo v. Court of Appeals 97 SCRA 373

A sale by the surviving spouse of conjugal property cannot be declared void by the court until a
liquidation is fi rst made of the conjugal estate.

When Estate Proceeding is Closed; Permissible Transactions Before Closure

Phil. Commercial and Industrial Bank v. Hon. Venicio Escolin L-27860, Mar. 29, 1974
In order that a proceeding for the settlement of an estate of a deceased person may be considered
ready for fi nal closure, there should fi rst be an order of distribution or assignment of the estate of the
decedent to those legally entitled thereto. In the proper cases, advance or partial implementation of the
terms of a duly probated will before the fi nal distribution — can be allowed as long as the rights of third
parties would not be adversely affected thereby. In fact, a surviving spouse can be allowed to dispose of
his own share of the conjugal estate, pending its fi nal liquidation, should it appear that the creditors of
the conjugal partnership would not be prejudiced thereby.