Prenuptial Agreement In The Philippines

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.

Requisites Of A Valid Marriage In The Philippines

From the inception of the Family Code in August 1988, the requisites of a valid marriage in the Philippines had been divided into two major classifications: the Essential and the Formal.

The essential requisites include:

  1. Legal capacity of the contracting parties, who must be male and female; and
  2. Consent freely given in the presence of the solemnizing officer.

On the other hand, the formal requisites are:

  1. Authority of the solemnizing officer;
  2. A valid marriage license except in the certain circumstances;
  3. A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age.

The absence of any of the essential or formal requisites make the marriage void ab initio.  However, the distinction between the classifications become material in case there are defects or irregularities in the requisites.

Defects apply to the essential requisites of marriage, while irregularities pertain to the formal requisites.  Any defect in the essential requisites render the marriage voidable or valid until annulled.  An irregularity in any of the formal requisites does not affect the validity of the marriage.  However, the party responsible for such irregularity will be subject to criminal, civil or administrative liability.