Abelardo “Billy” Cortez l September 5, 2024 l Manila Bulletin
Although divorce is not yet allowed under Philippine laws, pre-nuptial agreements are permissible to fix the property relations before marriage within the limits provided by the Family Code, of the Philippines, otherwise known as Executive Order No. 209, which took effect in 1988.
When the parties, as future spouses, enter into a pre-nuptial agreement, it is the binding law between them, and the Family Code of the Philippines becomes supplementary. In other words, the pre- nuptial agreement takes precedence in the determination of the property relations between the husband and the wife. In the absence of a pre-nuptial agreement, then, the provisions of the law will apply.
A pre-nuptial agreement is conditional upon the marriage of the parties; it becomes effective from the moment of marriage celebration. In our country, it is still not widely accepted to enter into a pre-nuptial agreement prior to a marriage, thus, the regime of absolute community of property governed most of Philippine marriages. By the way, some of my practicing law fraternity brothers from Lex Leonum Fraternitas have observed a growing number of inquiries about pre-nuptial, most of which would like to understand, clarify, and confirm all the downsides and upsides of a pre-nuptial agreement.
Think about it Pre-nuptial agreement is not a complicated matter; just keep the lines of communications between the parties involved open, frank, and honest with parties communicating clearly all expectations to the issue. After all, most relationships such as not feeling heard, conflicts about money, raising children, lack of sex are actually universal. Pre-nuptial agreements could indeed provide marital life with clear, more convenient pathways to many details of married lives.
All told, pre-nuptial agreements are entered into when there is a significant age disparity between the parties, when there is a wide difference between the wealth or indebtedness between the parties, and when the other party has been married before, if only to protect the children of the previous marriage.
Like any ordinary contract, the pre-nuptial agreement must be entered voluntarily in writing by the future spouses. It becomes binding between the husband and wife and cannot be changed while the marriage is existing except in those cases like there is an application to the Court to set aside the agreement on grounds similar to that of a petition for separation of property. A pre-nuptial agreement may be altered after the dissolution of marriage provided it will not prejudice creditors of either spouse. Take note. If one stipulation in the pre-nuptial agreement is void, it does not nullify the entire agreement. Then, to be effective against third persons, pre-nuptial must be notarized and recorded in the local civil registry.
As things stand now, the Family Code provides that the regime of absolute community of property applies automatically upon marriage; however, that regime of absolute community of property is subordinate to the terms of a valid pre-nuptial agreement.
All however is not lost. To quote my former professor and debating coach, the late, outstanding Bedan Senator Rene A. V. Saguisag who died last April 24 this year often reminding us in the past that, “In case of doubt on a difficult issue where men can honestly differ, always resolve it in favor of life, hope, and compassion”.
Bear this in mind, pre-nuptial is always a matter of choice.
*** Atty. Abelardo “Billy” Cortez has over 30 years of experience in international and local banking (treasury, trust, private banking). He was formerly FINEX national president and former chairman of the Philippine Capital Market Development Council. He is an independent board director at First Metro Investment Bank’s companies/subsidiaries (Metrobank Group). He’s an awardee of the Most Distinguished Bedan Alumnus in the field of banking and finance from San Beda College.
The views and opinions expressed above are those of the author and do not necessarily represent the
views of FINEX. Photo from Pinterest.