Article 77 of the Family Code provides that the marriage settlements and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. They shall not prejudice third persons unless they are registered in the local civil registry where the marriage contract is recorded as well as in the proper registries of the property.
The first requisite is that the agreement must be in writing. It may be private or public document. It is required that all the terms and modifications pertaining to the property regime as well as all the assets and properties must be in writing. Hence, oral agreements are not allowed.
Although notarization in prenuptial agreement is not a requirement for its validity, it should be notarized for the purpose of registration. If the prenuptial agreement is not registered, it willl not prejudice third persons, and the absolute community regime will apply as to them.
The second requisite is that the agreement must be signed by the parties. It is required that both parties must voluntarily execute the agreement. Their signatures are the real manifestations of their consent to all the terms included in the agreement.
The third requisite is that the agreement must be entered into by the parties prior to the celebration of marriage. It is called “prenuptial” because it must be drafted and signed before the celebration of marriage. Otherwise, it fails to serve its purpose of determining the property regime and management of all assets and properties between the husband and wife.
Take note that there are certain instances when amendments of prenuptial agreements are allowed even during the marriage: a) in cases of reconciliation between spouses who are subjects of legal separation proceedings; b) in cases of an agreement on the revival of their former property regime, executed by the reconciled couples above; c) in a regime of conjugal partnership of gains where a spouse abandons the other; d) in judicial separation of property; and e) in cases where the couple files a joint petition for voluntary dissolution of their existing property regimes.
The agreement cannot be unreasonably unfair to one of the parties. If you are planning to get married and are considering to enter into a prenuptial agreement, you may consult a lawyer for your guidance and assistance.
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