What are the differences between absolute community, conjugal partnership of gains, and complete separation of property? Somebody asked this question some time ago, but we were not able to immediately post a discussion on this matter due to heavy law office work. This is also the same reason why we are constrained to break down the discussion into six parts, as follows: (1) Prenuptial agreements and introduction to property relations between husband and wife; (2) The system of absolute community; (3) Conjugal partnership of gains; (4) Complete separation of property; (5) Donations by reason of marriage; and (6) Comparison of the various types of property relations between spouses under the Family Code.
There are related topics already discussed, such as the property relations between a man and a woman living together without being married. For this part (Part I), let’s talk about prenuptial agreements and a brief introduction on the property relations between husband and wife.
AGREEMENT BEFORE MARRIAGE
A man and a woman who are planning to get married may enter into a contract defining or providing for their property relations during marriage. This is called a prenuptial agreement” or “marriage settlement.”
The marriage settlement or prenuptial agreement, or any modication thereof, must be made BEFORE the celebration of the marriage.
It is called a “prenuptial” agreement because it must be executed BEFORE marriage. Agreements or changes after the marriage ceremony, except in cases of judicial separation of property during the marriage, are not valid. This means that the spouses could not simply agree later on to change their property relations, except upon a petition filed in court.
FORM OF MARRIAGE SETTLEMENT
The marriage settlement and any modification thereof shall be in writing, signed by the parties and executed before the celebration of the marriage. Also, before the marriage settlement may prejudice third persons, like creditors, the marriage settlement must be registered in the local civil registry where the marriage contract is recorded, as well as in the proper registries of properties.
MINORS AND PERSONS UNDER CIVIL INTERDICTION
The law generally speaks of “minors” as those who are under 18 years old. For purposes of the provisions on marriage settlement, however, a “minor” refers to those at least 18 years old but below 21, who needs parental consent to get married. Those who are designated by law to give consent, primarily the parents, must also sign the marriage settlement in order for it to be valid.
On the other hand, for the validity of marriage settlements executed by persons on whom the sentence of civil interdiction has been pronounced or who is subject to any other disability, the guardian appointed by a competent court must be made a party.
EFFECT OF MARRIAGE NOT PUSHING THROUGH
A marriage settlement, including any donations by reason of marriage (donations propter nuptias, which will be discussed later in Part 5), is rendered void if the marriage does not take place. An exception to this rule are those stipulations that do not depend on the celebration of the marriages, such as the recognition of an illegitimate child.
PROPERTY RELATIONS TO CHOOSE FROM
The future spouses may agree to the following: (1) System of absolute community; (2) Conjugal partnership of gains; (3) Complete separation of property; or (4) any other regime or system, so long as it is not contrary to law, morals, good customs, public order or public policy.
In the absence of a marriage settlement (or when the regime agreed upon is void), the property relations between the spouses shall be governed by the system of absolute community of property. There is no sense entering into a marriage settlement when the future spouses prefer the system of absolute community, as it is the default system in the absence of a valid agreement. The spouses may, however, want to provide for certain modifications to any of the regimes or system stated above.
In the absence of a contrary stipulation in a marriage settlement, the property relations of the spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence. This rule shall not apply: (1) Where both spouses are aliens; (2) With respect to the extrinsic validity of contracts affecting property not situated in the Philippines and executed in the country where the property is located; and (3) With respect to the extrinsic validity of contracts entered into in the Philippines but affecting property situated in a foreign country whose laws require different formalities for its extrinsic validity.
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How are prenuptial agreements between a Philippines citizen and a foreign citizen enforced?
lawstudent, I’m tempted to think that when you asked “how,” you’re asking what’s the mechanism in enforcing the prenup. This is enforced through the courts. However, maybe you’re actually asking what law governs and in what jurisdiction (country) can the prenup be enforced.
Sorry I wasn’t very clear in my question. Yes, I am asking what law governs and in what jurisdiction can the prenup be enforced. Thanks for you insights!
As a rule, Philippine law applies and the prenup is enforced in the Philippines. There are, of course, exceptions. Perhaps you could also help everyone by discussing related concepts like lex situs, lex loci celebrationis, forum non conveniens, renvoi and others.
Hi Atty. Fred…
Thanks for keeping your promise of discussing about differences between absolute community of property, conjugal partnership of gains etc.,
If you still remember, I’m the one who ask those questions to you.
This would really help me a lot
Pax, you’re welcome and, yes, I do remember. Good luck and God bless.
Hi Atty. Fred,
I have another question. This might seem obvious, but if a marriage is annulled or void, is the marriage settlement still enforced? Since a void marriage is considered never to have occurred, would the marriage settlement also be void? This is of course barring your noted exception to stipulations that do not depend on the celebration of the marriages,
I would be happy to explain about lex situs, lex loci celebrationis, forum non conveniens and renvoi after my finals are over. 🙂
Again, many thanks!
Atty. Fred, is Part 4 and 5 missing or it has not been written yet as of now? Thanks.
Hi Atty. Fred!
I just have a question about what a marriage settlement covers — does it include provisions about support for children in case of separation? Also, usually marriage settlements are used in case of separation, but in Philippine law, can it also be applied in case of the death of one spouse?
hi there! just wanna ask if a widower intends to marry again, will his children be able to request a prenup between their father and his wife-to-be? and would it be possible for them to ask that their father’s properties, though not yet divided accordingly and legally to them, be spared from being conjugal once the marriage takes place? i would definitely appreciate your answer. thanks very much!