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.
APPLICABLE LAW
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.
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?
Thanks!
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!
hello atty. God day
I just want to ask if we have the rights in the property of my uncle because my uncle has no son and my uncle the first one who died but before my uncle died they already separated but it is just a verbal
and my uncle already get the part of their properties but we dont have papers because its only a verbal and we have a witness and 2 weeks ago the relatives of the wife of my uncle claimed it and they have the dead of sale , do you think we have the right to get the half property of my uncle the wife is already dead..
I am a maltese citizen(part of th e.u.), I am marrying a 28 year old philippina woman, the wedding is in the Philippines and she will be coming back to my country malta. What is she entitled to if I do not Do a prenuptial agreement? If I am advised to do a prenuptial agreement, what exactly does it have to stipulate, as I have assets in Australia aswell as malta. And regarding future earnings, can I also have them stipulated in a prenup in the Philippines, because in malta anything you have before marriage remains yours. Please advise me about what I can do as I’m getting married next month, and I just found out that maltese law doesn’t apply in the Philippines. Are you situate anywhere near tagging city lower bicutan.
hi atty..
i just wanna ask something about complete separation of property.. can you please explain further sir? please, i would be thankful if you would help,,, thanks for this site..
just wanna ask what will happen if my partner is a foreigner and he wants to arrange a prenuptial what would be the settlement on it.
thank you
Dear Sir,
My father-in-law forced me to execute a prenuptial agreement in his office. There was no attorney present,my parents were also not present. He didn’t give me a copy, I remember that it was written that in case we separate, I get nothing.
Unfortunately, my husband and I later separated. I noticed that in our marriage contract, there’s no check on the box stating that my husband and I have a Pre-nuptial agreement. Also, it is not registered in the civil registrar.
Is our prenuptial agreement valid?
Ican smell a golddigger
Hi attorneys!
I’m just wondering… Suppose the couple decided to execute a prenup, say, CPG or absolute community, which means, the properties acquired prior to the marriage does not form part of the conjugal property, therefore, neither has any claim to such properties acquired before marriage. If one spouse dies intestate, his or her exclusive properties shall now form part of the decedent’s estate, in which case, the surviving spouse would then have a rightful claim to such exclusive property as a legal heir, is that correct? If that’s the case, can the prenup include a provision wherein the surviving spouse shall waive his/her on the decedent’s exclusive properties in favor of their children?
I’d appreciate your insight on this. Thanks!
Hi po! Sir? Can I ask on how can I find the legislative intent of the family code specifically regarding prenuptial agreements?
Hi,
Magandang araw po.
Itanong ko lang po sana kung hindi talaga pwedeng mag execute ng “postnuptial” agreement and couple aside kung may court order? Wala pa naman pong existing na property involved. Nasa stage pa lang po ng gustong mag purchase ng properties. Money involve po sa pagbili ng properties ay individual’s employment salary.
Maraming salamat po.
Hi Atty. Fred, I would just like to ask for the legal basis about the validity of the recignition of the illegitimate child in marriage settlement.
What is the meaning of
Have not entered into a marriage settlement and
Have entered into a marriage settlement?
Can someone be prisoned if she/he already signed to prenuptial agreement but did’nt attend the wedding??????? Please I need an answer
This website was… how do you say it? Relevant!!
Finally I’ve found something that helped me.
Thanks a lot!
Dear Atty. Fred,
I wish to be enlightened on the process of correcting an entry in our marriage certificate. My husband and I executed a Pre-nuptial Agreement on October 7, 2016 prior to our marriage on October 10, 2016. Our pre-nuptial agreement contains a confidentiality clause barring the both of us from making the existence and contents of the said agreement in public. When we got married, the solemnizing officer did not ask us if we have a pre-nuptial agreement.
On 14 March 2018, my husband and I decided to have our notarized Pre-nuptial Agreement annotated/annexed on our Certificate of Marriage. Thus, we went to the local civil registry in Meycauayan, Bulacan, where we celebrated our matrimony, to submit the copy of our Pre-nuptial Agreement and other required documents. The City Registrar pointed to us that in our Certificate of Marriage, the portion where the existence or non-existence of a marriage settlement was indicated, shows that we didn’t execute a marriage settlement prior to marriage and further explained that marriage settlement and pre-nuptial agreement are one and the same. She then advised us to have our Certificate of Marriage corrected by filing a Petition for Correction of Entry in court since according to her, the error is not typographical error as contemplated by law hence she doesn’t have the authority to correct the erroneous entry.
Is the Local Civil Registrar correct in advising us to file a Petition for Correction of Entry before the court instead of just an extrajudicial correction of the error since by mere looking and further investigation on the Pre-nuptial Agreement that we submitted, she will right there and then determine the veracity and truthfulness of the agreement? The solemnizing officer took it upon himself and assumed that we didn’t have a pre-nuptial agreement, when in truth and in fact, we have one. I hope you could shed light on this matter.
Thank you very much in advance and hoping for your prompt and immediate response.
gud evening,Atty…I just want clarification…what does it mean…if the statement is ” have not entered into a Marriage Settlement”?…thank you po…