Art. 130. The future spouses may give each other in their marriage settlements as much as one-fifth of their present property, and with respect to their future property, only in the event of
death, to the extent laid down by the provisions of this Code referring to testamentary succession. (1331a)
A future spouse may agree on the property relations during their marriages. a man and a woman who are planning to get married may enter into a contract defining or providing for their property relations during their marriage and we call it prenuptial agreement or marriage settlement.
What is prenuptial agreement or marriage settlement?
Prenuptial agreement or marriage settlement is a property in view and in consideration of marriage.
Prenuptial agreement or marriage settlement is a property in view and in consideration of marriage.
A prenuptial agreement or a marriage contract can deal with issues of support. The court may set aside a provision or a waiver of the right to support in a domestic contract and may determine and order support under section 33(4) :
* if the provision for support or the waiver of the right to support results in unconscionable circumstances;
* if the provision for support is in favor of or the waiver is by or on behalf of a dependent who qualifies for an allowance for support out of public money; OR
* if there is default in the payment of support under the contract at the time the application is made.
* if the provision for support or the waiver of the right to support results in unconscionable circumstances;
* if the provision for support is in favor of or the waiver is by or on behalf of a dependent who qualifies for an allowance for support out of public money; OR
* if there is default in the payment of support under the contract at the time the application is made.
So, even if you want to avoid creating financial obligations with respect to support by entering into a prenuptial agreement, you have to be attentive that such provision can be challenged and struck down. Definitely, the provisions can be challenged if the provision results in unconscionable circumstances.
The future spouses may donate future property to each other, but this shall be governed not by rules on ordinary donations but by the provisions of testamentary succession and formalities of wills. This testamentary succession determined in accordance with the provisions of a lawful will and the applicable rules of law.
Example:
The future spouses donated to each other in their marriage settlement one-fourth of their respective properties. Now, here is the question, Will the donations be reduced?
If their property regime is that of absolute community of property, meaning no reduction will be made, because it is pointless to make donations between the spouses due to nature of the regime. Otherwise, the donations will be reduced to one-fifth.
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