Published 12 November 2018, The Daily Tribune
In my two previous columns, I cited the following as reasons to enter into a prenup agreement: ensuring that family wealth remains within the bloodline; providing financial security for either spouse in the event of a ‘divorce’ or separation; protecting children from a prior or other relationship; protecting oneself from existing and future debts of a spouse; defining financial rights and limits between spouses; limiting issues and costs of a divorce; and establishing ‘alimony’ and support where Philippine law provides none. Now, the formalities and costs. A prenup is, first and foremost, a contract between two parties. As such, the prenup must comply with the essential requisites of a valid contract: subject matter, consideration and consent. The subject matter would be the properties subject of the agreement; the consideration being the entry into the marriage; whereas, consent is the assent given to the prenup by both parties.
Basically, the parties can agree to just about anything with regard to their property relations, the only restriction being that it does not adversely affect the property rights of children and other forced heirs under Philippine law.
Consent can be tricky. Consent can be vitiated (or rendered invalid) by mistake, violence, intimidation, undue influence or fraud. (See Article 1330, the New Civil Code) Other than the really obvious (such as a pointing a gun to ones head or forging the signature), how can this happen? Let’s say, a woman is pregnant and the couple agrees to marry. However, the man (or his parents) make a condition to their getting married that the woman agrees to a prenup. The woman is invariably coerced or forced into signing the prenup. It is possible for the woman to then seek to invalidate the prenup based on vitiated consent.
Another possible situation would be if the engaged couple is already thick into the wedding preparations – the invitations have been sent, the bookings or downpayments have been made, etc. Then, just before the wedding, one of the parties asks for a prenup. It may be that the other party can claim there was intimidation/duress into signing the prenup because he/she would be publicly embarassed or financially indebted otherwise.
The issue of whether each party is independently represented by his/her own counsel could potentially be raised as well. Ideally, each party should consult his own lawyer, but this may turn adversarial which seems antithetical to the intention of the parties to be married.
There is still a dearth of case law on this matter; yet, I posit that a party can raise the same issues or defenses to invalidate a prenup as in any contract.
How Much Would a Prenup Cost
As with any contract, the parties can themselves negotiate a prenuptial agreement. It is probably a wise and worthwhile exercise for the parties to start discussions between themselves on a prenup. Then, the parties could benefit from the inputs of an experienced contract lawyer, who can put their agreement into writing. To the extent possible, the lawyer/s can provide guidance to the parties on the do’s and dont’s under Philippine law. Except perhaps for lawyer’s fees (which is variable), the cost for entering into a valid prenup is reasonable. The lawyers’ professional fees would vary considerably, depending on the complexity of the agreement, the properties involved and the lawyers’ experience and caliber. Notarial fees are regulated by the Supreme Court. The notary public can charge a maximum fee as prescribed by the Supreme Court, unless he waives his fee in whole or in part. (Rule V, Section 1, 2004 Rules of Notarial Practice). The registration fee of a prenup at the local Civil Registry is P500 (plus penalties for late registration). The registration with the local Civil Registry of the marriage certificate, and the prenup, is exempt from documentary stamp tax. (Article 24, Family Code of the Philippines). The prenup should likewise be registered at the Registry of Deeds for annotation. The registration fee depends on how old the title is. The registration fee per title could range from P654 to P1,200 per title involved. As to prenup over personal property registered with the Registry of Deeds, the registration fee would depend on its value, but the registration fee is at least P2,000 per registry.
Having said all the legalities and costs of prenup, let me add that you have to likewise put your heart and soul into it. The best laid-out agreement can be put to naught without the spirit of trust and understanding.
For comments and questions, please send email to cabdo@divinalaw.com
