Art 74

Marriage settlement ante nuptial agreement

agreement entered into before marriageenjoyment and devolution of property is
regulated
Theory of freedom of stipulation.
-law is merely suppletory to the will of the parties
-ACP subsidiary when no other system has been provided
Eg: where settlement has said that there is community (all their estate: personal
and real, present and to come, between them:
wife dies without issue. Amount of property brought into by the community by the
one that shall die first survivor
ART 75
1. Regime of absorption: husband acquired ownership of all of the property of
the wife, as well as those she might receive after marriage
Personality of wife is absorbed by husband
Tarragato: complete appropriation
Manresa: complete merger
2. Regime of community: common patrimony for the family; upon dissolution,
common property is divided between spouses or their heirs
a. Absolute or universal: all (property and real, present and future,
onerour or gratuitous) form a single patrimony
b. Relative or limited: properties exclusively belonging to each of the
spouses at the same time a common property
i. Community of personal property: real property, however
acquired, belong separately
ii. Community of acquisition: all income from work or property AND
all acquisitions by onerous title form a common mass, while
property remains separate
iii. Community of future property: all future acquisitions form a
common patrimony and that property owned by each at the
celebration of marriage pertain to them separately
3. Regime of Separation: retain ownership of respective property
a. Single administration system: admin and enjoyment of all of wifes
property is vested with the husband
b. Dotal system: wifes property divided into dowry (given to the husband
in administration and usufruct [right to enjoy]) or paraphernal (retained
by wife)
c. Absolute separation: each spouse has the ownership, administration
and enjoyment of respective property

1364 Old Civil Code: if stated that ACP should not exist between them, dotal system
is to be observed. (husband to administer andis entitled to usufrutuary)
Civil code and Family code has no similar provision.
If not acp, apply art 74 FC. CUSTOM.
In the absence of, intent of the parties should be first criterion. Adopt a system,
closest to the practice of the parties, always protecting creditors.
1316 old Spanish Civil Code: marriage settlements not stipulate anything contrary
to law or good customs
Not been reproduced in the FC. Not material change because marriage settlements
are still contracts!
Art 1306 CC: stipulations should not be contrary to law, morals, good customs,
public order or public policy
VOID marriage settlements:
1) Contrary to the purpose of marriage, to liberty and rights of individuals
2) Violate legal provisions of a prohibitory and mandatory character
3) Derogatory to the authority of the spouses in the family
-4) Stipulations to consider union dissolved other than death and annulment
5) Relieve a spouse of his or her moral obligations
6) Fixing monetary penalty for infidelity
7) Depriving right of party to right for legal separation
8) Prohibiting surviving spouse from contracting subsequent marriage
Laws maybe
1) Superior to the will of the contracting parties (all legal precepts of public
order)
2) Suppletory in character maybe modified by the individual
Contrary to stipulate that administration should be by a third person. Contrary to
morals and public policy. Should be husband and wife only.
General proposition: parties cannot validly stipulate that all profits shall pertain to
one spouse only. However, we believe that such stipulations would be valid if the
spouse to whom the benefits are given is also made to bear all the burdens of the
marriage.
Different from ordinary partnership (A147) as ordinary partnership is for the
purposes of gain.
Nullity of a stipulation does not carry with it nullity of the entire marriage
settlement.
ART 76.

Regime adopted is unchangeable and cannot be altered once marriage is

celebrated. Possible exception is judicial separation during the marriage.
Spouses cannot even abandon agreement made in marriage settlement and replace
it with ACP because FC is only suppletory in character [applied only when there is
none].
LEGAL EXCEPTIONS
Art 66, 67: leg sep reconciliation; may choose a different marriage settlement or
choose to revive the old one.
ART 128: spouse fails with obligations, aggrieved spouse file for receivership or
judicial separation of property or for sole administration of CPG
ART 135, 136: separations of property for either by ONE SPOUSE for just cause or
JOINT petitions
Alteration AFTER dissolution. But the manner different stioulated from the marriage
settlement cannot be upheld to the prejudice of third persons.
ART 77.
Marriage settlement is merely an accessory to the marriage. Produces effects from
the moment of celebration.
Effectivity cannot be subjected to a suspensive or resolutory period or condition.
Commence precisely at the time of the celebration of marriage.
Period/condition violate invariability of matrimonial regimes
[Suspensive Condition - 1767 - The obligation may not be enforced until the
uncertain event occurs.
Resolutory Condition - 1767 - The obligation may be immediately enforced but will
come to and when the uncertain event occurs. Ends when an uncertain event
occurs. Automatically created by failure to perform.]
Art 1321 of old Spanish CC: required to be in a public instrument to be valid, even
as between the parties.
Present article, like CC, private writing to be enforceable. May even be oral.
BUT to be effective against third persons public instrument to be recorded in the
Registry of Property and local civil registry
Marriage settlement in private writing could be antedated and thus possibly violate
the invariability of the matrimonial regime of the spouses.
ERROR IN DATE: contract is valid when it is proved that contract was executed
PRIOR to the marriage.
HEIRS OF THE DECEASED cannot be considered as third persons with respect to the
contract as they are merely successors.

IF ORALLY MADE, neither can compel the other to execute the proper instrument, if
the latter objects to the proof of the contract by evidence.
But if in a private instrument, they can compel each other to make it public [1357
CC].
Sanchez Roman: compel execution of public instrument should be before and not
during the marriage.
UNDER PRESENT CODE HOWEVER, public instrument and registration are needed
only to affect third persons. They are not needed for the validity of the contract
entered into by the parties. the action to reduce it to a public instrument maybe
brought during the marriage.
ART 78.
RA 6809: lowered majority age to 18 years.
Minor in this case is one who can get married with parental consent (18 to 21)
Parent or guardian must be made party to the agreement. Or else marriage
settlement is void.
Minor must act personally. Not thru guardian.
Not just consent but they need to SIGN. Even if parent is already present.
ART 14: consent in order should be followed. [vis a vis Title IX = parental authority
to be JOINT]
ART should be followed. Article specifically applicable to marraiges.
ART 79
Intervention of the guardian for those under disability or civil interdiction.
ART 80
Both Filipinos or when one is Filipino:
1) Marriage settlement apply
2) No such stipulation Ph laws apply regardless of where they live and where
marriage is celebrated
ART 16: Real property as well as personal property is subject to the law of the
country where it is situated LEX SITUS
ART 17: forms and solemnities of contracts shall be governed by laws in the country
where they are executed
ART 81:
Marriage settlements are accessories to marriage. Its existence depends on
marriage. But stipulations which do not depend on marriage subsists.