Drafting Prenuptial or Cohabitation Agreements for Foreign-Filipino Couples: A Comprehensive Guide (Philippine Context)

Prenuptial agreements (often called "marriage settlements" in Philippine law) and cohabitation agreements can be valuable tools for clarifying and protecting the respective rights of partners—especially in cross-border or international relationships. When one partner is Filipino and the other is of a different nationality, it is critical to consider the unique legal complexities arising from conflicts of law and the particularities of Philippine family law.

Below is an extensive overview of key points, legal bases, procedural requirements, and practical considerations when drafting prenuptial or cohabitation agreements for foreign-Filipino couples in the Philippines. Please note that this discussion is for general informational purposes only and does not replace professional legal advice.

1. Legal Framework and Governing Laws

The Family Code of the Philippines (Executive Order No. 209, as amended)
- The Family Code governs marriages entered into after August 3, 1988. It includes provisions on prenuptial agreements, legal property regimes, and marital rights and obligations.
Civil Code of the Philippines
- While superseded in large part by the Family Code with respect to marriage and property relations, some older Civil Code provisions still apply to issues not explicitly covered by the Family Code, including certain rules on obligations and contracts.
Conflict-of-Laws Principles
- When one spouse is a foreign national, the law of the foreign national’s country may affect property relations or inheritance rights. However, as a rule of thumb, real or immovable property located in the Philippines is subject to Philippine law regardless of the citizenship of the owners.
- Personal property or movable property may be governed by the spouse’s national law (lex nationalii), but parties often choose to specify a regime in their prenuptial agreement to avoid uncertainties.
No Divorce in the Philippines (with Exceptions)
- The Philippines does not generally recognize divorce for Filipino citizens. Only annulment or legal separation is recognized under specific grounds. A foreign spouse may obtain a divorce abroad, and if recognized, it can allow the Filipino spouse to remarry—but that process involves additional legal steps and recognition in Philippine courts.
- This unique legal landscape underscores the importance of clear agreements on property rights from the outset.

2. Prenuptial Agreements under Philippine Law

2.1 Definition and Purpose

A prenuptial agreement (or marriage settlement) is a contract entered into by a couple before their marriage to determine the property regime that will govern their marital property relations. It allows the couple to deviate from the default property regimes provided by law (i.e., the Absolute Community of Property or Conjugal Partnership of Gains) and adopt a different arrangement that best suits their circumstances.

2.2 Legal Requirements for Validity

Execution Before the Celebration of Marriage
- The prenuptial agreement must be made and signed before the marriage ceremony takes place. Once the couple is married without having executed such an agreement, they will generally be bound by the default property regime mandated by the Family Code (Absolute Community of Property if the marriage was celebrated after August 3, 1988, unless otherwise provided by law).
In Writing and in the Form of a Public Instrument
- Under the Family Code, a prenuptial agreement must be in writing, signed by the parties, and notarized as a public instrument.
Registration with the Local Civil Registry and Register of Deeds
- For the agreement to be binding on third parties (i.e., creditors or other persons dealing with the couple), the agreement must be registered with the local civil registry where the marriage is recorded and, if it involves real estate, with the Register of Deeds in the location(s) where any real property is situated.
No Contrary Provisions to Law or Public Policy
- The agreement must not violate mandatory provisions of law or be contrary to public policy or morals. For example, stipulations that waive future child support or predetermine child custody are invalid.

2.3 Common Property Regimes and Provisions

Under Philippine law, the couple can agree to any of the following regimes, or create a modified regime as long as it complies with the law:

Absolute Community of Property (ACP)
- Default regime if no prenuptial agreement is executed. All properties owned by the spouses before and during the marriage (with certain exceptions) become part of the community property.
Conjugal Partnership of Gains (CPG)
- Another regime recognized under the Family Code. Each spouse retains ownership of his or her properties acquired prior to marriage, while the fruits (income) and properties acquired during the marriage generally become part of the conjugal partnership.
Complete Separation of Property
- Spouses own their properties separately, whether acquired before or during the marriage. They also bear their respective share in household expenses and other marital obligations as specified in the agreement.
Any Other Regime Not Contrary to Law
- The spouses may stipulate mixed or hybrid regimes (e.g., absolute community for certain assets, separation of property for others), provided it does not conflict with legal provisions.

In addition to setting the property regime, prenuptial agreements often contain clauses on:

Management and control of properties
Arrangements for debts and liabilities
Handling of business interests
Distribution of personal property in case of death or annulment
In some cases, spousal support obligations (though certain aspects of support may not be entirely waived)

3. Cohabitation Agreements in the Philippines

3.1 Legal Status and Recognition

Unlike prenuptial agreements that are explicitly recognized by the Family Code, the Philippine legal framework does not provide a specific statutory regime for “cohabitation agreements.” Generally, cohabitation (or “live-in”) arrangements occur outside of a legally recognized marriage. However, parties may still enter into a private contract governing property relations during their cohabitation, drawing from the Civil Code rules on obligations and contracts.

Freedom to Contract
- Two individuals can enter into agreements about sharing expenses, ownership of assets acquired during cohabitation, and other financial matters, as long as the terms do not violate law, public policy, or morals.
Effects on Property Rights
- Without a marriage or a recognized prenuptial agreement, property acquired jointly by cohabiting partners may be subject to a regime akin to “co-ownership” under the Civil Code.
- A cohabitation agreement can clarify each party’s share in jointly acquired assets and define responsibilities for debts, household expenses, or business ventures.
Enforcement Issues
- Courts in the Philippines typically do not give the same status to cohabitation agreements as prenuptial agreements. However, if properly executed (in writing, signed, and notarized), the agreement can serve as evidence of intent and be enforceable as a contract between the parties.
- Still, any clause that effectively contravenes the law (e.g., waiving child support) or is considered immoral or contrary to public policy could be declared void.

3.2 Considerations for Mixed Nationality Couples

For a foreigner and a Filipino cohabiting in the Philippines:

Immigration Status: A foreign national’s right to stay in the Philippines is typically governed by immigration laws (tourist visas, work visas, permanent residency). Cohabitation agreements do not confer immigration benefits, though a foreigner might pursue certain visas if they have a child with a Filipino citizen or meet specific requirements (e.g., 13(a) visa for a foreign spouse).
Property Ownership Limitations: Philippine law prohibits foreign nationals from owning land. A foreigner can, however, typically own condominium units under certain conditions. Clarifying these rules in a cohabitation agreement can help avoid disputes about real estate purchased during the relationship.

4. Cross-Border Considerations: Conflict of Laws

When couples of different nationalities enter into a prenuptial or cohabitation agreement, the question arises: which law governs?

Real Property in the Philippines
- Philippine law applies. Regardless of any foreign law, land in the Philippines cannot generally be owned outright by a foreigner, subject to constitutional restrictions.
Movable/Personal Property
- The spouse’s national law may sometimes govern. In practice, couples prefer to avoid complexities by clearly stipulating in their agreements that Philippine law applies or by specifying the applicable law to reduce future legal conflicts.
Succession and Inheritance
- In the Philippines, compulsory heir rules exist, and you cannot entirely disinherit certain heirs (legitimate or illegitimate children, spouse, etc.) through a prenuptial agreement. If a foreign spouse’s national law differs (e.g., allowing more freedom of testamentary disposition), a conflict of laws issue may arise. Proper legal advice is necessary to address inheritance matters in a prenuptial contract and to draft wills consistent with both parties’ national laws.

5. Practical Steps in Drafting and Execution

Consult a Philippine Lawyer Experienced in Family Law
- Due to the technicalities and possible cross-border ramifications, seeking competent legal counsel is paramount.
Engage Separate Counsel (If Feasible)
- Each party, especially in cross-border situations, may wish to have separate counsel to ensure that both the Filipino and foreign partner’s interests are adequately represented.
Disclose Assets and Liabilities
- Full and honest disclosure of each party’s assets and liabilities helps avoid future claims of fraud or misrepresentation that could invalidate the agreement.
Drafting the Agreement
- Ensure it is clear, unambiguous, and addresses the couple’s agreed property regime, management of property, and resolution of debts.
Notarization and Registration
- For prenuptial agreements: Execute before marriage, in writing, and have it notarized (to convert it into a public instrument). Then register it with the local civil registry where the marriage certificate will be recorded and with the Register of Deeds for any real property covered by the agreement.
- For cohabitation agreements: While not strictly mandated by law, notarizing the agreement strengthens its enforceability. It generally does not need to be registered, but if it involves real property, the parties may opt to register relevant portions in the Register of Deeds.
Periodical Review and Possible Amendments
- After marriage (or after continued cohabitation), circumstances can change (e.g., acquisition of new properties, changes in immigration status, or birth of children). While prenuptial agreements cannot usually be modified after marriage without following strict procedures (because the property regime is typically fixed), certain amendments (if allowed by law) or clarifications by separate contract may be possible.
- Cohabitation agreements can be updated upon mutual consent, as long as changes do not violate law or public policy.

6. Common Pitfalls and Challenges

Failure to Execute the Agreement Before Marriage
- A prenuptial agreement signed after the wedding ceremony is void under Philippine law for the purpose of altering the default property regime.
Lack of Notarization or Improper Form
- An unnotarized or informally executed prenuptial agreement has no legal effect on third parties and can be challenged in court.
Incomplete Disclosure
- If a spouse conceals assets, it can undermine the agreement’s validity and lead to legal disputes.
Provisions Contrary to Law
- Attempts to waive child support, predetermine child custody, or circumvent the constitutional prohibition on land ownership by foreigners are high-risk areas and may be void.
Misunderstandings About Effect on Citizenship or Immigration
- A prenuptial or cohabitation agreement does not grant immigration status to a foreign national nor affect Philippine citizenship for the Filipino partner.

7. Conclusion

Drafting a prenuptial or cohabitation agreement for a foreign-Filipino couple requires a thorough understanding of Philippine law, conflict-of-laws principles, and the unique constitutional restrictions on foreign ownership of land. A valid and well-structured agreement can provide financial clarity, protect each partner’s interests, and mitigate future disputes—especially in the Philippines’ complex marital and property law environment.

Given the seriousness and legal intricacies involved, seeking professional legal advice is indispensable. Each party’s specific circumstances—assets, nationality, family considerations, and estate planning goals—should be thoroughly discussed with counsel to ensure the agreement is tailored, valid, and truly protective of both parties’ interests.