Should you get a prenup before marriage? Atty. Adolfo Martin R. Gonzalez explains property regimes, misconceptions, and why a prenup can benefit anyone.
Marriage is probably one of the scariest commitments you can make in your lifetime. Imagine spending the rest of your life with the person you chose—no take-backs (at least in the Philippines). With strict family laws in place, simply falling out of love is not a valid ground for annulment. This is where the concept of a prenuptial, or prenup, agreement comes in.
People think it screams “I don’t trust you,” but that’s actually not the case. Think of it less as an omen of doom and more as an insurance: you hope you’ll never need it, but it gives both parties clarity and security before saying “I do.”
To help us understand the complexities of the law, Lifestyle Asia reached out to seasoned lawyer, Atty. Adolfo Martin R. Gonzalez, to help us read between the lines through grounded advice.
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Ask The Expert
Meet Atty. Adolfo Martin R. Gonzalez, partner at Rualo Gonzalez and Romero Law Offices, a boutique practice in Pasig City that handles everything from corporate law and securities litigation to intellectual property, estate settlements, and even food and drug registration. Whether it’s guiding foreign investors, navigating real estate deals, or structuring mergers and acquisitions, he and his team specialize in making the complex world of law more accessible to clients.
Before entering private practice, Atty. Gonzalez spent five years with the Securities and Exchange Commission (SEC), where he reviewed securities and served as a Hearing Officer, acting as an Administrative Judge when the SEC still had jurisdiction over intra-corporate disputes. He earned his Lia-Com degree at De La Salle University, his Juris Doctor at Ateneo de Manila University, and went on to complete a Master of Laws at Duke University School of Law in North Carolina. Today, he brings both local expertise and a global perspective to the practice of law.
If someone’s about to get married, should they even consider a prenup?
Atty. Gonzalez: Yes, all persons intending to get married should consider a prenuptial agreement. The Family Code, which currently governs property relations of married couples by default, mandates a regime of Absolute Community Property. In layman’s terms, what is yours is mine, and what is mine is yours upon marriage. Ideal and aspirational, love conquers all, but the facts on the ground do not support such a situation.
To begin with, couples in their mid-twenties actually have not much to their name, and unless you are a tech billionaire who earned billions during your early twenties, there is nothing to share. In most cases, your parents are alive and their properties are in their names.
Property Regimes in Prenups
Atty. Gonzalez: What people don’t realize is that inherited wealth during a marriage is the exclusive property of the spouse in an Absolute Community Property Regime. Even income from there is exclusive property. So in essence, it is not a gold digger’s dream. Likewise, when you consider property regimes before marriage, unromantic as it may seem, one is actually mature enough to get into marriage.
It is submitted that the previous default property regime in the older New Civil Code of Conjugal Partnership of Gains is more appropriate for young people getting married. To put it simply, what is mine is mine, what is yours is yours, but upon marriage, anything we earn together is ours. Even the fruits of inherited property (which is exclusive property) go into this pot. In fact, the majority of the prenuptial agreements we have drawn up are exactly this regime.
Of course, there are those who prefer the regime of Complete Separation of Properties with their spouses: this is usually the case when the properties owned by the future husband or wife are by nature complicated or the spouses are on their second marriages. In sum, property regimes in marriage should be dependent on the various situations of every particular couple.
What’s the most important thing a prenup should cover?
Atty. Gonzalez: In its most basic form, it should state whether it is a Conjugal Partnership of Gains or a Complete Separation of Property Regime.
How detailed does a prenup need to be—do you list everything down to furniture, or just the big things?
Atty. Gonzalez: It need not be detailed since the provenance or the history of every piece of property can be ascertained by date and where it came from.
How do prenups usually consider things like future businesses or inheritances?
Atty. Gonzalez: Once the chosen property regime of a marriage is decided, all financial flows from such a chosen marriage regime are already determinable. So businesses set up during a marriage can already be deconstructed to see who funded it and where the fruits should belong. Inheritance is actually determined by the New Civil Code in its rules on succession. What you actually separate upon death or separation is the assets of the marriage and where it belongs, i.e., to the husband or wife, before you start dividing it among the heirs.
Are prenups only for people with a lot of money, or can anyone benefit from one?
Atty. Gonzalez: No, anybody can benefit from it. If you end up with an unsuitable person for a spouse, it can save you from financial ruin in the future. Remember, it is not only assets that go with a marriage—it is liabilities, too.
What’s a common mistake couples make when drafting theirs?
Atty. Gonzalez: Please consult your friendly neighborhood lawyer. This is not a do-it-yourself task; there are solemnities and procedures involved in making prenuptial agreements effective. Remember, prenups must be executed before marriage to work.
What’s something people usually forget to include?
Atty: Gonzalez: Luckily, the mere fact that you declare the specific marriage regime of choice in the prenup is already a big step. Some lawyers are more obsessive-compulsive about putting specific items in the prenup. I tend to be slightly more loose on purpose, since the marriage assets are like a living being, it grows or shrinks. Perhaps on an operational level, a spouse should be more mindful when a separate property is sold because the cash component can be mixed up with the other spouse’s. There is a case where an heiress’s exclusive properties were sold, and cash proceeds from there were actually dissipated by the husband to the detriment of her children. This can still actually happen even if such properties were laid out in the prenup.
If you have to give one piece of advice to someone creating their prenup, what would it be?
Atty. Gonzalez: Have one! This already means you are either going for a Conjugal Partnership of Gains or Absolute Separation of Properties. Remember, regardless of what property regime you choose, your spouse will always be your heir and is governed by the rules of succession.
Implicitly, it means that she or he has been with you until death, and deserves to inherit from you. If you are legally separated or having a marriage annulled, then he or she is not qualified to inherit—in this case, a prenup will determine how to properly separate your marital assets.
