By Gladys Pinky Tolete
Pre-nuptial agreements are long associated with rich, oftentimes celebrity, couples (think Michael Douglas and Catherine Zeta-Jones). Most Filipino couples do not think of inking one because it basically goes “against” the impression that when one is married, “what is his is mine, what is mine is his.” When a couple signs a marriage settlement, they have different options regarding their properties.
However, in this time and age when both parties take pride in being employed and handling their own money and properties, it is advisable to enter into a pre-nup (as it is commonly called) or marriage settlement (as called by law).
Veteran of “marital wars” Atty. Katrina Legarda (in her article, “What You Should Know Before Tying the Knot that Binds,” The Essential Wedding Workbook for the Filipina , ed. by Rita Neri, 1998), strongly suggests entering such agreement if you want to avoid fighting over properties and finances when things go sour.
When a couple signs a marriage settlement, they have different options regarding their properties. They could use the regime of absolute community, conjugal partnership of gains, complete separation of property or they could devise any agreement they want. They should just make sure that for the settlement to be valid, it should be in writing, signed by both parties and duly accomplished before the wedding.
Here’s a short rundown of the regimes. To know more about marriage settlements, kindly read up the 1987 Family Code of the Philippines (also available at http://www.chanrobles.com/executiveorderno209.htm) or consult a lawyer.
The regime of absolute community “consists of all the property owned by the spouses at the time of the celebration of the marriage or acquired thereafter.” This means that everything you own is now the property of your spouse, explains Legarda, even if your spouse had absolutely nothing to do with the acquisition of such properties. There are several exceptions to this provision: properties donated to you and income derived from which (unless otherwise expressed by the donee), properties of personal and exclusive use (although your jewelry is part of community property), and properties acquired before marriage or from a previous union.
Conjugal partnership of gains (or CPG), meanwhile, means “the husband and wife place in a common fund the proceeds, products, fruits and income from their separate properties and those acquired by either or both spouses through their efforts or by chance, and, upon dissolution of the marriage or of the partnership, the net gains or benefits obtained by either or both spouses shall be divided equally between them, unless otherwise agreed in the marriage settlements.” Those who married before 1987 are under this regime. This regime allows you to keep some of your properties to yourself (“exclusive property”) or share the others with your husband or buy a house, registered in your name or to both of you, from your joint-bank account (“conjugal partnership property”).
Complete separation of property is judicially decreed when one of the spouses has been declared by court as an absentee, or lost his/her parental authority, or abandoned his/her family and failed to fulfill his/her obligations.
The marriage settlement is not constrained to the above-mentioned regimes. The couple can devise any structure they want when it comes to their possessions as long as they mutually agree to it and have it pass through legal hands.
However, if the two of you get into a disagreement, the law mandates that the decision of the husband is upheld, although the wife can get help from the court.
The arrangement is terminated when you do not marry each other (of course!), when either spouse dies, there is a decree of legal separation, when the marriage is annulled or declared void or when there a “judicial separation of property during marriage.”
And if you do end up fighting about finances and properties and did not enter into a pre-nup, Legarda says you may agree to dissolve your community relations or conjugal partnership gains. You both get a lawyer and draft an agreement and go to court to get it approved.
Pre-nups may not be a must on your wedding checklist but try to think about it. It could spell a whole world of difference if you reach the time that “mine does not have to be (or will never be!) his” and vice versa.
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The Chan Robles Virtual Law Library, http://www.chanrobles.com/executiveorderno209.htm
Legarda, Katrina. “What You Should Know before Tying the Knots that Binds” The Essential Wedding Workbook for the Filipina ed. Rita Neri, 1998