Is a Notarized Post-Nuptial Agreement Legal in the Philippines?

“The Family Code itself provides in Article 76 that marriage settlements cannot be modified except prior to marriage.”

– Mr. Justice Roberto A. Abad, in Pana v. Heirs of Jose Juanite, Sr. et al. G.R. No. 164201, December 10, 2012

By Realttorney^®

I was referred to an online article entitled “What is a Post Nuptial Agreement in the Philippines?” last year, which when read by non-lawyers gives an impression that is contrary to legal tenets based on the Family Code of the Philippines.

The article gives sound estate planning advice when it stated that couples should consider prenuptial agreements before getting married and discuss amongst themselves their income and financial objectives. However, it gets dicey after that.

The article states the following:

“A postnuptial agreement is a contract you and your spouse sign after you are married to resolve marital trouble. It is comparable to a prenuptial agreement. However, it takes place after the Marriage. For couples who marry without a prenuptial agreement, it is not too late to establish a postnuptial agreement that addresses concerns of property division, financial management, spousal support, and business split in the event of a divorce or annulment.”

In fairness, the article recommends that couples seek the guidance of a lawyer. It says that lawyers “can counsel you and will know what must be done for your jurisdiction.” Now, when I read this, I know that this article was written by someone living in the United States. And, the person who posted this article on the Philippine-based website, did not even bother to cite the source.

On the whole, the article gives the layman the impression that married couples can just visit a lawyer and ask him/her to prepare or draft an agreement that will divide their assets, pay the marital debt, child support, spousal support, and asset distribution in case of annulment, etc. Thereafter, when every provision is in order and to the satisfaction of the couple, they will sign the agreement, have it notarized and keep it somewhere safe where it can be accessed when the need arises.

To make things absolutely clear for unsuspecting couples, there is no such thing as a postnuptial agreement in the Philippines. If the couples married without a prenuptial agreement then, depending on the date of their marriage, their property regime can be the conjugal partnership of gains or the absolute community of property.

The conjugal partnership of gains or absolute community of property that govern the marriage of couples cannot be modified except before the celebration of that marriage.

Post-marriage modification of such property regimes can take place only where: (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) judicial separation of property had been had on the ground that a spouse abandons the other without just cause or fails to comply with his obligations to the family; (d) there was judicial separation of property under Article 135; (e) the spouses jointly filed a petition for the voluntary dissolution of their absolute community or conjugal partnership of gains.

Hence, if the married couple wants to modify their property regime to take into account the division of assets, payment of child and spousal support, and division of assets during the lifetime of the marriage or when it is terminated or annulled, they have to seek the imprimatur of the Family Court to do it. It is not as simple as asking a lawyer to draft a contract that the couple will sign and produce legal effects after its execution.

I hope this article clarifies the issue of postnuptial agreements in the Philippines. There are numerous effects of the Family Code on ownership of properties by married couples, common law spouses, and their children. One just has to seek property guidance and advice from a reputable professional.

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Atty. Jojo is a real estate attorney, an estate planning attorney, a licensed real estate broker, and a PRC-accredited Lecturer/ Speaker for Training Programs in Real Estate. He is a Chartered Trust and Estate Planning (CTEP^®) professional who is committed to educating Filipinos about the value and importance of having an estate plan in their lives.