Prenuptial agreements are slowly gaining prominence in the Philippines. Before, only members of prominent families would be expected to have a prenuptial agreement prior to the wedding date. Now, with the increased number of Filipino-foreigner relationships, the need to have a prenuptial agreement has begun to make a reputation.
A prenuptial agreement (or prenup) is a contract entered into between a man and a woman who wish to set the property regime that will govern their future marriage. The prenup is also called as “marriage settlement” or “antenuptial agreement.”
The terms or covenant of the parties, as provided in their prenup, shall prevail over provisions set forth in the Family Code of the Philippines with regard to property relations between future spouses. In fact, only in the absence of a valid prenup or after a proper court determines that a prenup is void can provisions of the Family Code on the Absolute Community regime apply.
In the prenuptial agreement, the future spouses may agree on the property regime of:
Absolute Community of Property (ACP);
Conjugal Partnership of Gains (CPG);
Complete Separation of Property (CSP);
A combination of the above regimes;
Any other regime, as long as it is not contrary to law, morals, good customs, public order or public policy.
In order for the prenup to be valid and enforceable as between the parties, the law requires prenuptial agreements to be in writing, signed by the parties and executed before the celebration of the marriage. But for a prenup to prejudice third persons, it must additionally be registered in the local civil registry where the marriage contract is recorded, as well as in the proper registries of property. The agreement must be notarized before it is registered.
Registration is crucial because a prenuptial agreement does not only affect the parties but also third persons (like creditors) who may enter into contracts with them. If recorded at the proper registries of property, the creditors are afforded the opportunity to discover what property regime applies to the spouses. This information may be used by the creditors should a debt collection case ensue and the spouses be named as respondents in the case. The prenup may determine whether one or both spouses can be made liable to the creditor for the unpaid obligations.
Modifications to the prenup can only be done prior to the marriage ceremony. The only exception to this rule is when a court orders the judicial separation of property during marriage.