Do You Have a Prenup?

My brother is marrying his girlfriend next month. While other men experience the 7-year itch, brother has chosen to forget the itch and actually put a ring on it.

And when two families get together, there are legalities both sides have to think about. Take for example, the concept of conjugal property. Apparently, there are 3 kinds of property regimes for married couples in the Philippines. They are:

  1. Absolute Community of Property (everything you both own before and during the marriage is conjugal),
  2. Conjugal Partnership of Gains (whatever you own before the marriage is yours alone but whatever you earn during the marriage is conjugal), and
  3. Complete Separation of Property

If no agreement was made at the time of the marriage, then the default regime is absolute community of property. That means, everything you own and everything he owns coming to the marriage are now mutually AND jointly owned by you.

This is great if you are marrying up.

Without any prior agreement before the marriage, a person marrying a richer spouse finds himself/herself co-owner of whatever asset her richer spouse have. Great, if you married a billionaire!

mwahaha.png

It sucks though if you’re marrying down.

If you’re the richer of the two, all of a sudden, everything you own is now co-owned by your spouse, regardless on what happened in the marriage.

For example, there are many instances of spouses who lied, cheated and abused you, and yet, when it’s time for you to divvy up your assets, you find yourself still giving that lying cheating SOB most of your money.

Here are just a few examples.

That is why, before marriage, instead of thinking about just the love and happiness you share right now, you might have to wisely consider signing a pre-nuptial agreement.

*Everyone gasps*

But that’s cruel!” people will exclaim. “That means you will leave your (poorer) spouse in the dirt in case the marriage won’t work out!”

or

Are you accusing her of gold-digging?” they’ll say. “She’s not a gold-digger. She’s actually in it for true love.”

Uhmmm… here’s the clincher — If you really think hard about it, there are no risks to you in having your future spouse signing a pre-nup. Sure, he/she may be unhappy at the concept of complete separation of property if in case the marriage don’t work out. But if you think about it, you are actually protecting yourself against a future that MIGHT happen, and if they sign it, it really means that they’re only after you, and not after your money.

I’ve thought about it carefully and thoroughly.

Think about it, first, signing the pre-nup actually encourages the marriage to prosper. If it does not survive, then both of you cleanly keep your properties separate as if the marriage didn’t happen. Haing signed the pre-nup, it’s in everyone’s incentive to keep the marriage going.

Two, the prenup only kicks in IF the marriage doesn’t survive. Given that you’re so in love, why be afraid of a future that you think will not happen? If the marriage lives to an old age, don’t you think that the spouse will enjoy the lifestyle and its fruits while being married to the wealthier spouse?

For example, Melania Trump does not fly coach while President Donald Trump flies in his private jet. If Donald Trump flies in a private jet, Melania joins him too.

Three, the fact that a prenup is a point in contention might reveal that the poorer partners’ intention might not be as clean in the first place. If money is not truly a factor in the union, the prenup is no big deal.

That’s why, I believe it’s important to see your future spouse’s reaction when you ask them to sign the prenup.

If they understand the concept of it and signs it without too much pomp and fuss, then you might have a keeper. But, if the person picks a fight about it to you, then, you might have to be careful. The marriage may be about the money after all.

 

Here’s what most pre-nups indicate — That the assets and its fruits of both parties are kept separate throughout the marriage, though it’s possible that you may keep a joint account for your expenses. The assets of each spouse does not go to the other at the time of death. Instead, it goes to your heirs or children, which is where the money should go in the first place.

I’ve actually signed a pre-nup before marrying my husband.

In fact, it was his father’s idea.

To put it in context, his father has asked all his children’s future spouses to sign a prenup so it wasn’t a really big deal for me. I was expecting it since dating him.

When I read the prenup, I admittedly felt very comfortable. I was okay with the concept of his assets being passed on to his heir at the time of his death. But I was uncomfortable when I read that if he dies, I would not own any of his assets, as if the marriage didn’t take place. It was not a very romantic document to sign to.

But I understood its practicalities and signed it. No fuss, no complaints, no big drama. Just signed it, had it notarized, and each having a copy.

And because it’s Valentine’s, I’m happy to share with you the contents of my prenup in case you need it.

Save yourself the trouble and get yourself a prenup. I signed it. My husband signed it. And we are still happily married.

Don’t get stuck with your pants down just because you’re in love. Love might not be binding but a Prenuptial Agreement is.

Happy heart’s day!

======================================================

PRE-NUPTIAL AGREEMENT

                This Pre-Nuptial Agreement (“Agreement”) made and executed this ____ day of Month 20__ in ____________, Philippines, by and between:

Husband’s Name (hereinafter referred to as the (Husband-To-Be), or (“Husband”), with residence at Husband’s Address;

– and –

My Name (hereinafter referred to as the [Wife-To-Be], or (“Wife”), with residence at My Address;

(Each person will be called “Party” and collectively, “Parties”).

RECITALS:

WHEREAS, The Parties intend to get married in the near future after the signing of this document and have agreed to set forth their agreement insofar as the regime which will govern their property and financial relationship. The matters set forth herein are intended to remove any doubt and/or question by establishing the limits or eliminates the rights of a Spouse in and to the property and income of the other Spouse, according to the terms set forth herein.

The terms set forth herein constitute the agreement of the Parties, which may change the normal operation of law in the event of death or termination of the marriage during the lifetime of the Parties. Accordingly, each of the Parties hereby agrees to accept and carry out the terms of this Agreement in full and complete satisfaction and waiver of all his or her legal rights in and to the property and income of the other Spouse.

This Agreement shall become effective only upon the marriage of the Parties and shall be invalid, null and void in the event that the planned marriage of the Parties does not occur.

NOW, THEREFORE, IN CONSIDERATION OF the contemplated marriage of the Parties and the promises contained herein, the Parties agree as follows:

  1. Full Disclosure.

Each of the Parties understands that, for this Agreement to be valid and enforceable, it must be based on a full mutual disclosure of each Party’s financial status to the other Party. Each of the Parties has made a full, complete and fair disclosure of all his or her property, liabilities and income to the other Party by an itemized list delivered to the other Party which are attached to and made a part of this Agreement. All of Husband’s financial net worth and income is set forth in Exhibit A, which Husband verifies is true and accurate. All of Wife’s financial net worth and income is set forth in Exhibit B, which Wife verifies to be true and accurate.

Each of the Parties further states that he or she has fully reviewed the financial Exhibit of the other Party and has become familiar with the financial status, circumstances and condition of the other Party before signing this Agreement.

  1. 2. Separate Property.

As used in this Agreement, the term “Separate Property” means all rights, titles, and interests to property, whether real property, personal property, mixed including cash and investments/securities/bonds and similar financial instruments wherever located, invested or found, which is owned separately by either Party as contained in Exhibits “A” and “B” hereof. The term “Separate Property” shall also include the following:

  1. All income produced by or from any Separate Property, the rights to all appreciation or gain, the rights to all proceeds from the sale thereof and the exclusive right to manage, operate, dispose, invest and exercise absolute ownership over such property;
  2. Property obtained or acquired in the future after the date this Agreement is signed (“after-acquired” Separate Property) which is/are: (i) obtained through sale, trade, exchange, development or improvement of currently owned Separate Property; or (ii) Purchased from separately owned money or funds or through loans or credit separately obtained by one of the Parties; or (iii) Combination of (i) and (ii);
  3. Property and/or funds obtained or received by one of the Parties by way of gift or inheritance; and,
  4. Any and all successor businesses, including proprietorships, partnerships, and corporations. In general, after acquired Separate Property of a Party usually comes from currently owned Separate Property, or separately obtained credit, or both.

Unless otherwise specified in this Agreement, neither Party shall have any right, title, or interest in, nor any claim against the Separate Property of the other Party, whether currently owned or after-acquired during the contemplated marriage or after its termination during lifetime or upon death. Accordingly, each Party shall have the exclusive right: (a) to dispose of or transfer any or all of his or her Separate Property by inter-vivos (lifetime) or testamentary (at death) including by will, trust, or gift, or by any other disposition, and, (b) Each Party shall have the right to mortgage, encumber, hypothecate, or pledge his or her Separate Property, at his or her sole discretion as if their contemplated marriage had not occurred.

The Parties understand that if they are married, it may be necessary for a Spouse dealing with his or her own Separate Property to obtain the other Spouse’s signature on certain documents in order to satisfy the requirements of lenders, title companies, applicable law, buyers, sellers or others. Therefore, each Party agrees that, when so requested by the other Party during the marriage, he or she will cooperate, join, and sign documents, including contracts, deeds, mortgages and gifts which transfer an apparent interest of the Spouse. However, the participation of the non-owner Spouse shall neither create any personal liability on him or her  or against the property of the non-owner Spouse nor shall it create any interest, right or claim to the owner-Spouse’s separate property. This notwithstanding, nothing herein shall prohibit either Party from leaving any of his or her Separate Property to the other Party by will, trust or other such method, but this provision shall not create any right or claim by the other Party.

  1. Jointly Owned Property, Accounts, Living Expenses and Obligations.

During the term of the marriage, the Parties may acquire jointly owned property. For all property other than their personal residence, such acquisitions may be made either from joint funds or through separate contributions by each Party. If made from separate contributions, the Parties may by separate agreement specify the interest of each Party therein. Further, in the absence of any separate agreement, each Party will be deemed to have an equal interest in such jointly acquired property.  The respective interest of the Parties shall be documented and reflected in the pertinent ownership/property documents.

For their living expenses and other joint needs, the Parties shall establish a jointly owned checking/saving account at a mutually agreed bank, savings and loan, or other similar institution. Each of the Parties shall make a mutually agreed contribution to that account. Living expenses and joint needs refer but are not limited to: ordinary living expenses and utilities, groceries and food, entertainment, home maintenance and repair, transportation, routine medical and health related expenses, general cost for running the household, and other related items as agreed upon by the Parties.  It is understood that any excess funds accumulated in such joint checking or savings accounts established by the Parties shall be deemed to be mutually owned by the Parties and titled in the form of “Ownership of Accounts”. Finally, in managing jointly owned property/ies, account/s and obligation/s, the Parties agree to keep the other Party informed of all financial and economic activities which a Party might do throughout the lifetime of the marriage.  However, in the event that either Spouse is found to have committed any act of infidelity, the he or she will not interpose any objection to the innocent spouse taking over the administration of the common property or fund/joint accounts.

  1. Separately Owned Bank Accounts, Debts & Liabilities.

Other than the special joint account referred to in Section 3 above and any other such joint cash accounts which the Parties may establish under the same terms and conditions, all other cash accounts will be maintained as the Separate Property of each Party. All such Separate Property accounts opened by either Party during the marriage may be designated under the owner Party’s name as “Separate Property of (Party’s name)” or as the “Sole and Separate Property of (Party’s name)”. It is understood that, even if the other Spouse’s name is added as an authorized signatory on any of the other Spouse’s Separate Property cash accounts for emergency situations, such accounts shall nonetheless be and remain as the Separate Property of the Spouse owning the account.

Except for any such arrangements for emergency purposes, each Separate Property account shall remain under the total and exclusive control of the owner who shall have the full and exclusive right to make all deposits to any such account of income produced from his or her Separate Property such as but not limited to: (a) wages, salary, or other earnings resulting from his or her labor, efforts, or contract rights; and, (b) any gifts or inheritances received separately by that Party. The owner of any such Separate Property account shall also have the full and exclusive right and control to make all withdrawals from such account, except for emergency withdrawal rights granted to the other spouse, if ever.

The interest earned on any such Separate Property accounts, together with accumulations or any other increases, shall be included as a part of the account as the Separate Property of the Spouse owning the separate account.

Any withdrawals from any such account, or purchases made with the proceeds of any separate account which are given to the non-owner Spouse shall be considered as a gift to the other Spouse, in the absence of any written agreement which specifies otherwise.

Nothing herein shall create any right, title, interest, or claim, or create any right of reimbursement on the part of the non-owner Spouse unless otherwise specified in a separate written agreement.

  1. Debts and Liabilities.

Unless otherwise specified herein, all debts, liabilities, liens or encumbrances which have been incurred or guaranteed by each Party before the contemplated marriage shall be the sole and exclusive responsibility of and to be paid by the Party who incurred them, and neither the other Party nor his or her property shall in any way be liable or obligated for the payment thereof.

Each Party agrees to indemnify and hold harmless the other Party from any and all debts or liabilities separately incurred by him or her, and each Party agrees that he or she will not seek any financial participation for debt reduction or satisfaction, unless otherwise specified herein.

  1. Divorce, Dissolution, or Separation.

During the lifetime of both Parties, in the event of annulment, dissolution, separate maintenance, or other such legal action, or a separation pursuant to court order or the written agreement of the Parties, or if the Parties do not live together for a period of six (6) continuous months and one of the Parties does not intend to end such separation (all of which are referred to collectively as “Annulment/ Separation”), then the Parties agree that this Pre-Nuptial Agreement shall be the basis for the financial and property settlement of Annulment/Separation, and each of the Parties agrees to request that the court follow the terms set forth herein.  In the event of an Annulment/Separation, the Parties further agree as follows:

Each Party shall retain their own Separate Property, subject to any debt or encumbrance thereon.

The Parties shall attempt to divide their jointly owned or community property and set forth their agreement in writing, or if they are unable to reach mutual agreement on such division, division, then all such joint or community property shall be divided and distributed pursuant to court order.

Each of the Parties agrees to request that if this entire Pre-Nuptial Agreement cannot be withdrawn from court proceedings before it would be filed as a part of public court records, that at least the Parties shall request the court’s permission to detach Exhibits of each Party’s property and financial condition before filing in court records, due to the personal and confidential nature of such Exhibits.

Each of the Parties agrees to execute any and all documents, and take all steps necessary to carry out the terms of this Pre-Nuptial Agreement.

  1. Death of Either or Both Spouses

In the event of death of either Spouse, the other Spouse shall have no rights in or to the estate or Separate Property of the other Spouse, just as if their marriage had not occurred. Each of the Spouses agrees to accept the terms of this Pre-nuptial Agreement instead of, and in full and complete satisfaction of all rights in and to the other Spouse’s estate which he or she would have had under law if this Agreement did not exist. Each Party agrees, after the marriage, to execute consent to the other’s will, and to execute any and all other documents necessary to carry out the terms of this Agreement.

At the death of either Spouse, all of his or her Separate Property shall pass to his or her respective heirs, beneficiaries, legatees, devisees, and assigns as provided in his or her respective will, trust or other disposition document or device; provided, however, nothing in this Agreement shall prevent either Spouse from making provision for the other Spouse in his or her will, trust, or other disposition document or device.

Neither Spouse shall contest the will or other testamentary disposition of the other Spouse’s estate. If necessary under applicable law to carry out the Parties’ intent expressed in this Agreement, the Separate Property of each Spouse shall not be counted as part of the elective share of a surviving Spouse.

Following the death of one of the Spouses, the surviving Spouse shall execute and deliver any and all documents necessary to carry out the terms of this Agreement.

In the event that both Spouses should die simultaneously, or in a common disaster, or if one of the Spouses does not survive for a period of at least thirty (30) days after the death of the first Spouse to die, it shall be deemed that each Spouse survived the other and as if the marriage never occurred.

  1. Sole and Exclusive Agreement; Amending; Binding on Heirs.

This Agreement constitutes the entire agreement of the Parties, and totally cancels and supersedes any and all other prior written or verbal agreements or arrangements between the Parties which address the subject matter of this Agreement. No representations or warranties have been made by either Party to the other, nor by anyone else, except as set forth herein, and neither Party is executing this Agreement upon reliance of any representation or warranty which is not expressly set forth herein.

This Agreement may be amended, modified, or revoked only in writing signed by both Parties and executed in the same manner and with the same formality as this Agreement.[1]

This Agreement and all its terms and provisions shall be binding on and insure to the benefit of the Parties, and their respective heirs, assigns, executors, administrators, and legal representatives.

  1. 9. Effective Date.

This Pre-Nuptial Agreement shall become effective upon the marriage of the Parties. If the proposed marriage of the Parties does not occur for any reason whatsoever, this Pre-Nuptial Agreement shall be null and void, and of no effect.

  1. 10. Severability.

The terms of this Agreement are severable. If any provisions herein are not valid or enforceable under applicable law, then all other provisions which are valid and enforceable shall remain in full force and effect.

  1. 11. Governing Law.

This Agreement shall be construed and interpreted under The Family Code and other laws of the Philippines, which is the country of residence of the Parties, which is deemed applicable to such case.

IN WITNESS WHEREOF, the Parties have executed this Pre-Nuptial Agreement in two or more counterparts on the day and year first written above.

 

___________________________      ___________________________

signed in the presence of:

 ___________________________      ___________________________

 

   

ACKNOWLEDGMENT

Republic of the Philippines)

_____________________ ) S.S.

Before me, a Notary Public for and in ____, this __ day of Month 20__, personally appeared the following:

Name Competent Evidence of Identity Date/Place Issued

known to me and to me known to be the same persons who executed the foregoing instrument, consisting of  seven (7) pages, including the page where this acknowledgment portion is found, and acknowledged to me that the same is their free and voluntary act and deed.

In witness whereof, I have hereunto set my hand and affixed my notarial seal on the day and in the place above written.

 

 

Notary Public

Until 31 December 20 ____

 

Doc. No.  _______;

Page No. _______;

Book No. _______;

Series of  _______.

 

 

[1] No provision in the Family Code allows the revision of a Pre-Nuptial Agreement.

 

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About Bonita

I'm a forgetful person. But I think a lot. Every day, a lot of thoughts enter my head. That's why this blog came to be: first, to keep my memories alive through the years, and two, to actually see how I and my thoughts have changed. Please note that I seldom draft or edit my posts. Sometimes, if I'm not careful, I offend some of you, my readers. And while I apologize for making you feel uncomfortable, I am not sorry for being honest or for making well-intentioned mistakes. I will however be the first to admit if I change my mind. Hence, do read and proceed with caution. My life is as colorful and as boring as you make it. I complain many days, but offer some encouragement in others. Life is fluid, it changes. So keep the positives and throw away the negatives, and I do hope that at the end of the day, you will enjoy reading the blog and leaving comments here and there if my posts touches you. Happy reading!
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