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fraud, coercion, mistake, undue influence or bad faith. Thus, the law provides the grounds
for a judicial separation of property. A pre-nuptial agreement may only be altered after the
dissolution of marriage provided it will not prejudice creditors of either spouse whose share
would be reduced as a consequence of the change of property regime.
II. Formalities
In order to be valid between the parties, a pre-nuptial agreement should be in writing, but in
order to be effective against third persons, it must be in a public instrument, that is, notarized
by a duly appointed notary public, and recorded in the Registry of Property for the
Protection of Creditors and in the local civil registry. Any modification to the pre-nuptial
agreement must follow the same formality and since it is an accessory to the marriage, it
must be executed before the celebration of marriage.
To avoid any type of fraud, mistake, coercion, undue influence, misrepresentation or
concealment of assets which can be a ground to nullify the pre-nuptial agreement, a full
disclosure statement of all assets and monies is advisable.
III. Contents of the Agreement
In a pre-nuptial agreement, all assets and properties along with the value of each asset
should be included. It may also include a provision that deals with the apportionment of
wages, commissions, inherited property, life insurance benefits, pension plans, medical or
health insurance benefits, educational plans, administration of property, and
payment of taxes. Likewise, it is desirable to include a mediation or arbitration clause to
provide alternative ways of resolving disputes without going to court. Further, in the event
of litigation, a provision on venue in case an annulment action is commenced should be
included.
IV. Void Agreements
If one stipulation in the pre-nuptial agreement is void, it does not nullify the entire
agreement which may contain several stipulations. As a general rule, the future spouses are
free to stipulate anything subject to the limitations of freedom to contract, i.e., the
stipulations of contracts should not be contrary to “law, morals, good customs, public order
or public policy.” In general stipulations in a pre-nuptial agreement which would be void
include, those contrary to the nature and purpose of marriage, to the liberty and rights of
individuals, or in general, to morals and good customs;, those which violate legal provisions
of a prohibitory or mandatory character, those which are derogatory to the authority of the
spouses in the family, or in general and those contrary to the public order or public policy.
In the case of a void pre-nuptial agreement, the law provides that the parties be governed by
the regime of absolute community of property.