Future spouses, who have mutually decided to enter into a pre-nuptial agreement, must execute the agreement in writing prior to the celebration of the marriage in order for it to be valid.
The Family Codes does not require that the agreement be in the form of a public instrument. However, in order for the agreement effective against third persons, it must be the form of a public instrument. The pre-nup must be notarized by a duly appointed notary public, and recorded in the Registry of Property for the Protection of Creditors and in the local civil registry. Any modification to the pre-nuptial agreement must follow the same formality and since it is an accessory to the marriage, it must be executed before the celebration of marriage.
We suggest that the parties fully and faithfully disclose a statement of their assets, liabilities and monies. This is so that we ensure that the agreement is free from any vice of consent such as fraud, undue influence, mistake, intimidation, misrepresentation, violence, or coercion which may be a ground to nullify the agreement.
What else may be included in a pre-nuptial agreement?
In a pre-nuptial agreement, all assets and properties along with the value of each asset should be included. It may also include a provision that deals with the allotment of wages, allowances, inherited property, life insurance benefits, pension plans, medical or health insurance benefits, educational plans, administration of property, and payment of taxes. Likewise, it is greatly advised to include a mediation or arbitration clause to provide alternative ways of resolving disputes without going to court. Further, in the event of litigation, a provision on venue in case an annulment action is commenced should be included.
The Family Code gives the parties free rein as to the stipulations that will form part of their pre-nup. The caveat however would be that the stipulations of contracts should not be contrary to “law, morals, good customs, public order or public policy.” Any stipulation that would violate a law, or would be in conflict with morals and established customs, or would willfully disregard the institution or marriage and thee family would render the agreement void. Should the agreement be void due to grounds similar to the aforementioned, the regime of absolute community will govern the marriage settlements.
It is still best to have a lawyer draft and register the agreement to ensure compliance with the formalities required by law.