Is a Pre-Nuptial Agreement Allowed in the Philippines?

In a country where marriage is not only celebrated as a momentous life event but is likewise duly protected by law, the idea of pre-nuptial agreements have gained an unfavorable social connotation. It seems to be sending the message that the parties are not in it for the long run and that spouse with the more favorable bank account is making sure that in any event, his/her property remains their alone.

There is truth to be told in the above scenario, but what the public does not understand are the reasons and detailed agreements set forth in these type of agreement, which would protect not just familial interests but likewise provide peace of mind for the parties.

Essentially, a pre-nuptial agreement is a contract between the parties which concern the ownership of their respective properties and other assets during the subsistence of the marriage. Article 1 of the Family Code empowers the parties to may enter into a pre-nuptial agreement to fix their property relations during the marriage within the limits provided by the Code. These agreements are what is referred to under the law as “marriage settlements”. They are also known as ante-nuptial agreements.

What we must understand is that when parties as future spouses execute one, this will be binding as between them and the provisions of the Family Code applies suppletorily. In its absence, what will govern will be the regime of absolute community property, as provided under the Family Code.

The community property shall consist of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter, subject to exclusions provided in the Code.

Now, the pre-nup will have force and effect from the moment of the celebration of the marriage between the parties. Pre-nuptial agreements are generally entered into where there is a significant age disparity between the parties, when there is a wide difference between the wealth or indebtedness between the parties, and where one party has been married before and there is a desire to protect the children of the former marriage.

Like any under contract, it must be entered into voluntarily by the parties, free from any vice of consent. Upon execution, the agreement cannot be changed during the existence of the marriage except upon an application in Court which is based upon the same grounds for a petition of separation of property, such as abandonment, failure to provide support and other family obligations.

A pre-nuptial agreement may only be altered after the dissolution of marriage provided it will not prejudice creditors of either spouse whose share would be reduced as a consequence of the change of property regime.

It’s high time to change the public’s perception of executing a pre-nuptial agreement. This agreement should be seen as an instrument to keep the parties together, not a convenient mechanism for division of property once the parties are separated.