Filipinos are a romantic lot.

We love
fantasizing about a happily ever after where
the prince charming ends up with his
princess.
The sanctity of marriage is absolute to us,
which partly may be the reason we’re the only
country in the world where divorce is not
allowed. Many couples that I know of go to
great lengths to avoid all matters that may
affect the harmony of a marriage. One of
these is the issue of money and, by extension,
properties.
There’s nothing wrong about keeping the
peace, of course. Who doesn’t want a
marriage that’s nothing but pure marital bliss.
However, this is not realistic. In the United
Kingdom, for example, 42 percent of
marriages end in divorce, according to their
Office of National Statistics. Who knows how
many Filipino couples end up separated or
marriages annulled. But given our obsession
with the querida subculture (as of this writing
I counted at least four soap operas in which
infidelity is the major theme), it’s fair to say
that a lot.
Which brings us back to the question of
money (and properties). How do married
couples share properties acquired before and
during marriage, and how are these divided
when the marriage turns sour and ends?
To do this, it’s best to review what our laws
prescribe. According to Ernesto Perez II, a
real estate attorney and a member of the
Muntinlupa Real Estate Board, there are two
regimes that cover couples’ marital
properties. One of which is the “conjugal
partnership of gains,” which applies to
marriages that took place before the Family
Code of the Philippines took effect in 1988.
According to the conjugal partnership of gains
regime, the couple’s properties will be like
this:
1 Properties acquired by the husband before
he got married shall be exclusively his,
the same way that the wife’s will be hers.
2 However, when they get married their
exclusive properties shall be joined
together as part of a one estate within the
conjugal property and the “fruits” of those
properties shall be shared for the duration
of the marriage. In addition, any property
acquired during their marriage shall be
considered part of this and equally owned
by the husband and wife.
3 Should the marriage ends and the couple
decides to file for legal separation or
 annulment, the husband’s exclusive
properties he acquired before marriage,
including their “fruits,” will be taken out of
the joined estate and once again will be
solely owned by him. The same applies to
the wife’s exclusive properties.
4 The properties acquired by both or any of
the spouses during their marriage shall be
considered part of their conjugal property
and will be split in half.
Under this scenario, when the married couple
gets estranged, one spouse can freely
dispose of (sell, mortgage, lease, exchange, or
donate) his or her properties he or she
acquired before marriage, even without the
consent of the other spouse. If the property in
question was acquired during marriage,
however, notarized written consent from both
spouses is still needed.
However, if a couple was married on August 3,
1988, up to present, their properties will no
longer be governed by the law of conjugal
property but instead by the provisions of the
Family Code of the Philippines signed by then-
president Corazon Aquino.
Under the law, in the absence of a “marriage
settlement” (typically a prenuptial agreement
or prenup), a married couple’s properties
acquired before and during marriage will
automatically become co-owned by the
couple under the property regime called
absolute community of property.
Under this regime, the couple’s properties will
look like this:
1 All properties acquired by the spouses
before and during marriage, including
those donated to and/or inherited by
either of the spouse, will be considered
part of the absolute community of
property.
2 Legal separation, divorce, or annulment
will not affect this regime, unless the
spouses file for judicial separation of
properties, in which case the properties
within the regime shall be split in half
between the husband and the wife.
The absolute community of property regime is
considered the default property regime in the
absence of a marriage settlement or prenup.
It treats properties acquired by the spouses
during their marriage as jointly owned, which
means that the spouses are considered as co-
owners of all properties they bring into the
marriage, as well as those they acquired
during the marriage.
What If the Couple Decides to
Keep Them Separated Before
They Get Married?
Perhaps because of the Family Code,
prenuptial agreements or prenups are slowly
becoming more common, observes Atty.
Melencio Sta. Maria, a professor of family
relations law and obligations at the Ateneo de
Manila School of Law.
More couples have become more
aware of their rights, including their
right to keep separated their
properties and assets acquired before
marriage.

Prenups are also advantageous for couples

who prior to marriage already have numerous
properties that they would prefer to keep in
their name, says Atty. Perez. In addition,
they’re also appropriate if one of the spouses
has a child from a previous marriage so that
the child is cared for properly in the future.
But thanks to our obsession to Hollywood and
many celebrities’ messy divorce settlements,
prenups have gotten a bit of a bad press
among many Filipinos. The very act of
entering into one is seen by many Filipinos as
unromantic and may do more harm than good
to a couple’s relationship.
Atty. Sta. Maria says this shouldn’t be the
case. A prenup shouldn’t be looked at as
something that shows a lack of trust between
spouses, or to create animosity between
them. It is very useful not only in managing
their real properties, but also in the case
where each of them were running separate
businesses prior to marriage.
For example, if before marriage the husband
runs a construction supplies business and
wants to maintain sole ownership to the said
business during marriage, he can do so by
stipulating it in the prenup. This way, he can
enter into contracts, apply for a loan to scale
up operations, or sell the business even
without the consent of his wife. The wife can
do the same if, say, she runs an interior
decorating business prior to marriage.
Hence, a prenup not only protects assets but
having one in place also allows couples to
maintain the flexibility of the businesses they
individually run, said Atty. Sta. Maria.
If there is separation of property, the
couples’ individual businesses are not
restricted because they each can
proceed with their respective business
without having to seek the consent of
the other spouse in every transaction.
In the absence of a prenup, both husband and
wife become co-administrators of each of
their properties. Although there are
advantages to this—such as combined
resources for their businesses, shared
expertise, and spreading the risk—it also
reduces the flexibility as one cannot dispose
of the property without the consent of the
other. For example, if one tries to sell land
without the consent of the other, that sale
would be considered void.
This can become problematic, especially
when looked at from the buyer’s standpoint.
According to Atty. Perez, legally, all marital
properties that are intended for sale should
have the consent of the spouse.
To be absolutely sure that the seller is
protected, he or she should require
that both spouses to be physically
present during the execution of the
deed of sale.
Misconceptions
One common misconception about prenups is
that it is used to completely shield a person’s
properties from his or her spouse, similar to
what we usually see in movies in which the
rich parents force their future son-in-law to
sign one in order to protect the family fortune.
However, unlike in the United States, the
Philippines’ succession and inheritance laws
give protection to compulsory heirs, one of
whom is the spouse, said Atty. Chester
Ogsimer. This means that no amount of legal
hocus focus in the prenup can deprive a
spouse of his or her inheritance. Atty. Sta.
Maria concurs:
Spouses, with or without a prenup,
remain heirs of each other, the same
way that their children are their
rightful heirs.
But to prevent tension or feelings of mistrust
from developing later on, Atty. Sta. Maria
advises couples to talk about having a prenup
ideally at the earliest stage of the
relationship or engagement, and the couple
should be sincere and honest when disclosing
their assets and debts.
And in order for a prenup to be valid, it must
be executed before the marriage, should be in
writing, and, in most cases, done in the
presence of lawyers. The latter can help
prevent awkward situations from arising.
Furthermore, the prenup must be registered in
the local civil registry where the marriage
contract is recorded and also in the proper
Register of Deeds where the pieces of
property of the future spouses are located in
order to bind third parties.
Although there is nothing inherently wrong
with Filipinos’ aversion with prenups, it
doesn’t hurt to be ready and have one in place
either. We’re all for couples staying married
“till death do them part,” but life isn’t always
a fairy tale, as the saying goes. Who knows
what would happen 10 or 15 years into a
marriage—even the most perfect one can lead
to annulment.
But what counts is the married couple
continuously nurturing their relationship with
love, respect, openness, and trust. Once this
is fulfilled, the presence or absence of a
prenuptial agreement no longer matters.