Protecting Assets You Bring Into the Marriage

What happens if you write nothing down

The Family Code gives you a choice, and supplies an answer if you decline to make one. Article 75 (Executive Order No. 209):

Art. 75. The future spouses may, in the marriage settlements, agree upon the regime of absolute community, conjugal partnership of gains, complete separation of property, or any other regime. In the absence of a marriage settlement, or when the regime agreed upon is void, the system of absolute community of property as established in this Code shall govern.

That is the whole architecture in one provision. You may choose absolute community, conjugal partnership of gains, complete separation, or a regime you design between you. Choose nothing and the community regime governs. The Supreme Court restated the trigger recently in Nayve-Pua v. Union Bank of the Philippines (G.R. No. 253450, January 22, 2024): the statutory regime applies "absent any proof showing that the spouses entered into a marriage settlement," and once it does, "when the property is acquired during the marriage, the burden of proof is upon the spouse claiming the property's exclusivity to establish it." A settlement moves that burden to a document you both signed while you were still calm. What each regime means day to day is set out on our regimes page.

Listing before drafting

Nothing useful can be drafted from a general intention. The first substantive work in every engagement is a written inventory from each side: real property and where it is titled, bank and investment accounts, retirement and pension entitlements, shares and business interests, vehicles, intellectual property, receivables, and — the item couples forget — debts. Student loans, a mortgage abroad, a support obligation from an earlier family: liabilities belong in the settlement as much as assets do.

Disclosure is not a formality and it is not one-sided. The Filipino partner discloses as fully as the foreign partner, and both should. An asset nobody listed is an asset the agreement never addressed, and the consequences of that fall on whoever was relying on an understanding that never reached the page. In Delgado v. GQ Realty Development Corp. (G.R. No. 241774, September 25, 2019) the Supreme Court dealt with exactly that failure:

Assuming that petitioner Francisco really used his own funds to buy the subject property and that he intended to preserve his interest in the subject property, petitioner Francisco's failure to reduce such intention into writing and place protective measures to secure his alleged interest over the subject property in the Ante-Nuptial Agreement and in any other document is clearly contrary to human experience.

The husband in that case had drafted the agreement through his own counsel, and lost his claim to a property he said he had paid for.

Assets that sit outside the Philippines

For a Filipino-foreign couple, Philippine law is the governing law of the property relationship, and where you married is beside the point. Article 80:

Art. 80. 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.

Two things follow. The blanket exception is exception (1), which applies where both spouses are aliens — and by definition that never covers a couple where one spouse is Filipino. And exceptions (2) and (3) are narrow: they concern the extrinsic validity, that is the formalities, of contracts touching property abroad. They are a reason to be careful about how an instrument affecting a foreign asset is executed, not a reason to think the regime itself changes. Muller v. Muller (G.R. No. 149615, August 29, 2006) shows the rule working quietly: a couple married in Hamburg who had lived in Germany were adjudicated under the Philippine absolute community regime, with the husband's German inheritance excluded under the Code's own exclusion for property acquired by gratuitous title. Article 80 and its consequences are unpacked on our mixed-marriage law page.

Be clear-eyed about the limit of that. Whether a court or a land registry in your home country will give effect to a Philippine marriage settlement over an asset located there is a question of that country's law, and no Philippine authority answers it. That is your home-country counsel's territory; we draft and coordinate, and where it makes sense we suggest a mirrored instrument executed to the formalities of the forum where the asset sits. See enforceability abroad.

The one thing no settlement can achieve

A prenup can allocate cash, business interests, income, liabilities and foreign assets. It cannot make a foreign spouse an owner of Philippine land. In Muller the Court held that the alien spouse's "disqualification from owning lands in the Philippines is absolute. Not even an ownership in trust is allowed," and it refused reimbursement of the purchase money. It adopted the explanation given in Cheesman v. Intermediate Appellate Court (G.R. No. 74833, January 21, 1991):

If the property were to be declared conjugal, this would accord to the alien husband a not insubstantial interest and right over land, as he would then have a decisive vote as to its transfer or disposition. This is a right that the Constitution does not permit him to have.

Any clause promising a foreign spouse an interest in Philippine land is not protection. It is a clause that will fail when it is finally tested, and the money behind it may not come back.

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