A prenuptial agreement, called a marriage settlement under the Family Code, lets a couple choose the property regime that will govern their marriage instead of the default absolute community of property. It must be in writing, signed before the marriage, and registered to bind third parties.
Prenuptial agreements are often misunderstood in the Philippines as something only for the wealthy or a sign of distrust between partners. In reality, a marriage settlement is a practical legal tool that lets couples decide in advance how their property will be owned and managed during the marriage. This commentary explains how it works under Philippine law.
What Is a Prenuptial Agreement?
A prenuptial agreement is known in law as a marriage settlement, governed by Articles 74 to 81 of the Family Code. It is a contract executed by the future spouses before their marriage that fixes the property relations that will apply once they are married. In the absence of such an agreement, the law imposes a default regime on the couple.
The Default Rule Without a Prenup
For marriages celebrated under the Family Code (from August 3, 1988 onward) without a marriage settlement, the default regime is the Absolute Community of Property. Under this regime, almost everything the spouses owned before the marriage and everything they acquire during it becomes part of a common mass of property owned by both. A marriage settlement allows couples to opt out of this default and choose a different arrangement.
What a Marriage Settlement Can Contain
Couples may agree on one of several regimes, most commonly complete separation of property (each spouse owns and manages their own property) or the conjugal partnership of gains (each keeps their separate property but shares the fruits and income earned during the marriage). The agreement may also address the administration of specific properties.
There are limits. A marriage settlement cannot contain provisions contrary to law, morals, good customs, public order, or public policy. It cannot, for example, be used to waive future support or to prejudice the rights of children.
Requirements for a Valid Marriage Settlement
To be valid and enforceable, a marriage settlement must meet strict formalities:
- It must be in writing.
- It must be signed by both parties before the celebration of the marriage. An agreement signed after the wedding is not a valid marriage settlement.
- It takes effect only upon the celebration of the marriage.
- To bind third persons, it must be registered in the local civil registry where the marriage is recorded and in the proper registries of property.
Any modification to the agreement must also be made before the marriage and follow the same formalities.
Can You Change It After the Wedding?
As a rule, no. The property regime is fixed at the time of marriage and generally cannot be changed afterward by mere agreement of the spouses. The law allows changes only in limited situations and typically requires judicial approval, such as in a petition for judicial separation of property. This is why it is important to decide on and properly execute a marriage settlement before the wedding.
Frequently Asked Questions
Do we need a prenuptial agreement? No. It is entirely optional. Without one, the Absolute Community of Property regime applies by default. A prenup is useful when a spouse has significant premarital assets, a business, children from a prior relationship, or a foreign spouse.
When must a prenuptial agreement be signed? It must be signed before the marriage is celebrated. An agreement entered into after the wedding is not a valid marriage settlement.
Is a prenup valid if it is not registered? It is valid between the spouses if in writing and signed before the marriage, but it must be registered in the civil registry and property registries to be binding on third persons such as creditors.
Can a prenup decide child custody or support? No. Custody and child support are determined by law based on the best interest of the child and cannot be fixed in advance to a child's prejudice.
This commentary is for general informational purposes only and does not constitute legal advice. For guidance specific to your situation, please consult a licensed attorney.
If you need assistance with a matter like this, our firm is available to help. You may reach us via Viber or WhatsApp, call us at 0995 433 5550, or email vivasnobles@gmail.com.