Pre-nuptial agreement

Dear Atty. Duran-Schulze,
How do I convince my fiancé to have a prenup? Is a total separation of property better in the long run, as compared to a conjugal partnership?

Dear Van,

Under Article 75 of the Family Code, it is the prerogative of future spouses to choose the type of property relations that will govern their marriage. Their options include absolute community, conjugal partnership of gains, complete separation of property, or any other regime.

The future spouses thus have the freedom to determine, fix, and modify their property relations according to their preference by entering into a marriage settlement. Marriage settlements are also known as ante nuptial contracts or pre-nuptial agreements. Marriage settlements, or prenups, are contracts so they must also follow the requisites for it to be a valid contract.

Thus, consent for the contract must be freely and voluntarily given by both parties/future spouses (NCC Art. 1318). Its stipulations must be not contrary to law, morals, good customs, public order, or public policy (NCC Art. 1306). It must be in writing for it to be enforceable under the Statute of Frauds (NCC Art. 1403). Lastly, it needs to be notarized and registered in the local civil registry and in the proper registries of property for it to be valid as against third persons (FC Art. 77). Note that marriage settlements need to be agreed upon before the actual celebration of marriage for it to be valid (FC Art. 76).

Here are some reasons why future spouses should get a prenup. Prenup will provide protection for the innocent spouse, in case the other spouse has existing or will incur future careless, and risky debts without the innocent spouse’s consent. It will also ensure the inheritance rights of the former family of one spouse if the latter remarries. There is also assured division of properties in case of separation of the spouses. It will also serve as protection for a foreign spouse given that foreigners cannot own private lands in the Philippines, and in turn, protection for the Filipino spouse in case of properties situated abroad. It will also mitigate or prevent future disagreements especially if there is evident disparity in wealth between the future spouses.

You may tell your fiancé that having a prenup is helpful to have a lasting marriage. It will help prevent future disagreements regarding property. Both of you are in the best position to decide which property regime is the best for your marriage because you are both aware of each other’s circumstances, wealth, and preferences.

We have also provided brief discussions of other property regimes to guide you and your fiancé in your decision.

In absolute community, all the properties owned by both spouses at the time of celebration of marriage, and the properties acquired or bought thereafter will be included in the community property (FC Art. 91). In other words, what the husband owns in the present (at the time of the celebration of the marriage), and in the future, will be co-owned by the wife, and vice versa.

Kindly note though that this has exceptions. The following are excluded from the community property and are considered separate or exclusive property of the spouse concerned: (1) Property acquired during the marriage by gratuitous title; (2) Property for personal and exclusive use of either spouse; and (3) Property acquired before the marriage by either spouse who has legitimate descendants by a former marriage (FC Art. 92).

In the absence of any marriage settlement, or if the regime agreed upon is void, the default property regime of marriages celebrated under the Family Code is absolute community. The future spouses may also opt to exclude certain properties in the community property during marriage settlements.

In conjugal partnership of gains, under Article 106 of the Family Code, the husband and wife will place in a common fund the following:

    (1) the proceeds, products, fruits, and income from their separate/exclusive properties;

    (2) properties acquired by either or both spouses through their efforts or by chance.

Both will be divided equally between spouses upon dissolution of the marriage or the conjugal partnership. The husband or the wife retains exclusive ownership of his/her:

    (1) properties acquired before marriage;

    (2) properties acquired during the marriage by gratuitous title;

    (3) properties acquired by right of redemption, by barter, or by exchange of property exclusively owned by the spouse concerned; and properties that are purchased using the spouse’s exclusive money (FC Art. 109).

In complete separation of property, Article 144 of the Family Code provides that separation of property may refer to either or both present or future properties. The separation may be total or partial. In partial separation, the properties not agreed upon as separate will be considered as absolute community properties.

Moreover, Article 145 provides that:

    (1) the husband or wife does not need the consent of his/her spouse in owning, disposing, possessing, administering and enjoying his/her respective exclusive property;

    (2) the earnings of the husband or wife from his/her profession, business or industry are exclusive; the fruits and income earned and received from the husband’s or wife’s exclusive properties (earned during the marriage) belong to him/her. Regarding family expenses, Article 146 provides that “both spouses shall bear the family expenses in proportion to their income, or, in case of insufficiency or default thereof, to the current market value of their separate properties.”

We hope we are able to answer your query. Please be informed that the foregoing legal opinion is based solely on the facts that you have provided us and our appreciation of the same. In case you need further assistance, our firm is open and ready to assist you. Thank you.

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