Here’s a touchy subject on “Pre-Nuptial Agreement” that’s better to be aware of than not. As always, this blog was created due to a recent case i came across with wherein a couple had to go through an unfortunate situation over financial and material assets.
There are many misconceptions about pre-nups, such as it only takes effect when you get separated, or it only benefits the rich. Well, hopefully after reading this article, you will have a general idea of what it really means …..
Actually, a prenup may protect your assets from bankruptcy or your spouse’s debt. In theory, if your better half got carried away and secretly raked up mind blowing credit card bills or loans, creditors may go after your money if you don’t have a pre-nup. To visualize, imagine your fiance and your assets as two connected condominium, while a prenup acts as a firewall in between. If one catches fire the firewall protects the other, so your family will not be left in ashes. Without a prenup, both assets may be razed to the ground.
Pre-Nups – Frequenty Asked Questions
Q: What is a pre-nuptial agreement?
A: A pre-nuptial agreement (“pre-nup”) is a written contract entered into by future husband and wife before they are married, specifying the property relations between them as a married couple.
Q: Are there different types of pre-nup?
A: There are no types of pre-nup although the law requires formalities, such as that it be in writing, signed and notarized before the wedding. To bind other persons, it must be registered with the local civil registry where the marriage contract is recorded and the registry of deeds where the properties are located.
Q: In your opinion, why is a pre-nup important?
A: A pre-nup gives the couple the flexibility to choose their property relations. In the absence of a pre-nup, their property relations will be absolute community of property (ACP). This means that the couple will co-own all properties acquired before and during the marriage.
If a couple does not want this system to govern, they have to execute a pre-nup. They can agree on conjugal partnership of gains (CPG) or complete separation of property (CSP) or any other arrangement combining these modes of property relations, provided that no law is violated.
In CPG, the couple retains sole ownership over property acquired before the marriage and only income of such properties, will be co-owned.
In CSP, the couple agree that none of their present or future properties will be co-owned.
Q: In layman’s term, ACP means, “What’s yours is mine, what’s mine is yours.” CSP is, “What’s mine is mine, what’s yours is yours.” While CPG depends on what you’ve agreed upon, such as, “What’s yours before marriage is yours, what’s mine before marriage is mine, everything else is ours” or “What’s mine is mine, what’s yours is mine”.
A: Pretty much. It’s also important because drawing up a pre-nup makes the future husband and wife aware that married life entails financial planning.
Q: There’s a common misconception that a pre-nup only “takes effect” if a couple gets separated.
A: Actually, the law states that the effects of the pre-nup are during the marriage itself, but this may include an agreement on how the property will be divided in case the spouses separate.
Q: Can a pre-nup protect you from your spouse’s debt or bankruptcy?
A. Strictly speaking, a pre-nup cannot absolutely protect the spouses’ common property from one spouse’s personal debt. So long as the family benefited from said debt, the common property may be made liable for such debt.
Q: What are its limitations?
A: It must not be contrary to law, morals, good customs, public order or public policy. For instance, in case of CPG and CSP, the future husband and future wife cannot provide that they will donate to the other more than one-fifth of their present property because this is contrary to law.
Also, any change in the pre-nup has to be made before the marriage, in order to be valid.
Q: What if the groom is a foreigner, do different rules apply? Does a pre-nup signed in the Philippines applicable only in the country?
A: Without a contrary stipulation, Philippine law on property relations applies if at least one of the future spouses is Filipino. An exception is when the property is based abroad. In such case, the law of the country where the property is situated governs.
Q: Can a couple do a pre-nup legally without a lawyer?
A: While the law does not specify that a lawyer’s assistance is required in drawing up a pre-nup, it is always best to consult with one (or two), to ensure that the pre-nup is legal in substance and form.
Q: So how can they make it legal and binding ?
A: To be binding it must be in writing, signed by the parties, notarized before a notary public and registered in the Local Civil Registry where the marriage is recorded and the Registries of Deeds where properties are located.
Q: What kind of lawyer handles pre nups?
A: Usually, a lawyer who practices Civil Law, particularly Family Law, handles pre-nups.
Q: On the average, how much does a basic pre-nup cost if it’s done by a good lawyer in Metro Manila.
A: Some lawyers charge a flat fee for this service, maybe starting P20,000.00 (USD472). While others, usually law firms, charge on the basis of time spent by their lawyers in drawing up the pre-nup, and all incidents thereto (such as meetings).
As always, it’s always best to consult a lawyer, one that specializes in this particular case !
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Robert G. Sarmiento Properties
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