Published 06 July 2018, The Daily Tribune
June, traditionally the most popular month to marry, has passed. But still, wedding bells continue to ring everywhere. Many are getting engaged. Some are enjoying their bridal showers. Others are busy doing their prenup shoot.
Indeed, couples getting ready to tie the knot spend months, or even years, planning for the perfect wedding. While wedding preparation takes a lot of precious time and effort, so is preparing for marriage. Couples tend to exert their efforts preparing for the “big day”, without however giving too much thought on preparing for the marriage itself. Before tying the knot, there are a couple of things to sort out other than the wedding day.
Among the many things to consider are finances and property relations between the future spouses. Couples may enter into an agreement providing for their property relations during marriage. This is called marriage settlement, or more popularly known as prenuptial agreement. Once executed, the marriage settlement will govern the property relations between spouses during the marriage. In the absence thereof, the property relations between spouses will be governed by the system of absolute community of property, the default property regime under the Family Code (Article 75, Family Code). In other words, the absolute community of property shall be the property regime for all marriages, unless the parties entered into a prenuptial agreement. For marriages which took place however prior to the effectivity of the Family Code in 1988, the default property regime shall be the conjugal partnership of gains.
In their marriage settlement, the future spouses may agree upon the regime of absolute community of property, conjugal partnership of gains, separation of property or a combination of any of the regimes, provided the terms and conditions thereof are not contrary to law, morals, good customs and public policy (Article 1306, Civil Code). Under the regime of absolute community property, all properties owned by the spouses before the marriage and those that they acquire during the marriage shall form part of the absolute community and is shared equally by husband and wife (Article 91, Family Code). On the other hand, under the regime of conjugal partnership of gains, only those properties acquired during the marriage through the efforts or industry of either or both spouses as well as the income or fruits of their exclusive properties that accrue during the marriage will comprise the conjugal partnership (Article 106, Family Code). Under the regime of separation of property, each spouse shall own, dispose of and enjoy his or her exclusive property to the exclusion of the other (Article 145, Family Code). The separation can be total or partial. In case of partial separation, the property not agreed upon as separate shall pertain to the absolute community (Article 144, Family Code).
To be valid, the marriage settlement must comply with certain formal requirements. It must be in writing, signed by the parties and executed before the celebration of the marriage (Article 77, Family Code). When a party to the marriage settlement is suffering from disability, his legal guardian must also sign the marriage settlement (Article 78, Family Code). Once these requisites are satisfied, the marriage settlement shall bind the spouses during their marriage.
However, for a marriage settlement to affect third persons, it must be registered in the local civil registry where the marriage contract is recorded, as well as in the proper registry of deeds (Article 77, Family Code). Otherwise, third persons who deal with either or both spouses have the right to presume that they are governed by the absolute community of property regime.
Any modification in the marriage settlement must also be in writing and made before the marriage (Article 77, Family Code). Once the marriage has been celebrated and a particular regime has been agreed upon in the marriage settlement, the spouses cannot simply modify their property relations. During the marriage, the property regime of the spouses could no longer be changed or modified except upon prior approval of the court in the following instances: (a) the absolute community or conjugal partnership was dissolved and liquidated upon a decree of legal separation; (b) the spouses who were legally separated reconciled and agreed to revive their former property regime; (c) when there is judicial separation of property on the ground that a spouse abandons the other without just cause or fails to comply with his/her obligations to the family; (d) in cases of involuntary dissolution of the property regime; and (e) the spouses jointly filed a petition for the voluntary dissolution of their absolute community or conjugal partnership of gains (Pana vs. Heirs of Juanite, Sr., et. al., G.R. No. 164201, 10 December 2012). In all instances of post-marriage modification, the spouses have to seek the intervention and approval of the court.
If the marriage does not take place, the marriage settlement will be rendered void. However, provisions in the marriage settlement that are not dependent on the celebration of marriage, such as contractual support and recognition of the paternity of an illegitimate child, shall remain valid despite the non-celebration of the marriage (Article 81, Family Code). For example, if the man recognizes the child of the woman as his own child and promised to support the child in their marriage settlement, said provision in the marriage settlement will remain valid even if the marriage does not take place.
Having said that, ready to settle down?