On my annual visit to the Philippines, I open up one of the boxes where my writings (journalistic and creative) dating back to the fun years I spent working in Manila, as well as to my superficially normal childhood. This year, I found a clutch of magazines from the Summit group, which published the Philippine edition of Cosmopolitan. I wrote for Cosmo in the late 1990s, and now that nearly 30 years (gasp! I was a veritable kid!) have elapsed, it's time to share them with a digital community.
How will they be read by young women who have been formed, over the last 15 years, by the very visual platforms of Instagram and Tiktok, for whom Facebook probably resembles a retirement community?
Back in the day, smart young women began to contemplate the thought of settling down as they reached their late 20s, the age I was when I wrote this piece commissioned by Cosmopolitan editor Noelle de Jesus-Chua. The first paragraph says it all.
Prenuptial agreements
Lakambini Sitoy
for Cosmopolitan Philippines, June 1999
(publication details and image to follow)
Jackie Ejercito’s marriage to Manolo “Beaver” Lopez has to be the wedding of the year; already, three months before its solemnization, it’s already been the stuff of front page news. Everything about the forthcoming union between presidential daughter and ABS-CBN heir has been duly chronicled, including Beaver’s paean to true love: “There will be no prenuptial agreement between our two families. My intention is Jackie. I have no hidden agenda.”
Which doesn’t do much good for prenuptial agreements, making them sound like the ultimate weapon in a fortune hunter’s arsenal, after the slinky dress, the rented sports car, the killer smile.
A prenuptial agreement -- or marriage settlement, or “prenup” -- is a contract entered into before marriage to govern the property relations between husband and wife. It’s one step beyond the plain “usapan tungkol sa pera” that convention dictates upon couples before they tie the knot.
“From what I’ve seen, coming to an understanding about how money should be used contributes to the success of a marriage,” says lawyer Evalyn Ursua, co-founder of the Women’s Legal Bureau and recipient of an Outstanding Young Filipino award for her work in women’s developmental law.
But couples generally discuss their finances; why bother to put it in writing and have it notarized?
“For people with property prior to their marriage, a prenuptial agreeement is a practical instrument,” she continues. “The point is to make sure the property arrangements during the marriage are crystal clear.”
Under the Family Code of the Philippines, in the absence of a prenuptial agreement, a system of “absolute community of property” applies. This system should give contemporary women pause. As the name suggests, everything the individual spouses own becomes common property once they tie the knot. This includes his stereo, her couch; her Dalmatian, his rowing machine; but also the house in Tagaytay inherited from his aunt whom she’s never met and the graphics design busines she put up 10 years before he entered her life.
“The most practical reason therefore is to protect the spouse’s interests in their property,” Ursua continues.
“Protection of interests” implies an ominous reality that most people in the first flush of love would prefer to ignore: that not all marriages will be happy, and that many will come to a catastrophic end. One of the worst things that can happen to any marriage is a property war, with possessions held as ransom or used as bargaining chips. When the love is gone, the emotional blackmail continues, and property makes a handy weapon for the sole purpose of inflicting pain.
Unfortunately Filipinos seem to have an aversion to discussing money, especially when the matter of love is involved. Charisse and Dino, who executed an agreement to have some apartments belonging to his family registered in his name and for her to keep her share of her family’s business, had to hide the contract from Charisse’s parents until after the honeymoon. Charisse’s mother found it distasteful to talk about properties at so early a stage -- “Hindi pa nga kayo nagpakasal, usapan na ninyo ang pera,” she would grumble. Dino felt he was accused of being selfish and individualistic, Charisse that her parents weren’t giving her the autonomy that, at 26, she had long deserved.
Sometimes the parents may provide the wisdom and objectivity that a couple needs. When Fiona found herself pregnant by a boy she had been sleeping with barely two months, she immediately wanted to marry him. She had the finances anyway: cash, hectares of farmland and a share in the family business, which supplied dried fruit and spices to snack food manufacturers. Her sensual lover didn’t have a cent.
But her parents put their foot down, virtually forcing them to sign an agreement in which most of the property she already owned or was due to inherit remained her own. Less than a year after the civil ceremony, a kind of cloud descends whenever she talks about her marriage. Though it’s not certain which was more responsible: that harsh contract or a basic incompatibility that no amount of good sex could erase.
The question of empowerment
Because in the Family Code, provisions on the “marriage settlement” are contained a section (Title IV) concerned with the property relations between husband and wife, most people believe that only the rich -- the only ones with property of note -- should execute prenuptial agreements.
This is not the case. Even middle class couples are advised to do so.
“Kahit wala kang properties, kahit konteng kaperahan ang kasal, magiging malinaw ang arrangement diyan,” Ursua says. “Based on the experience of the women I’ve talked to a prenuptial agreement gives a degree of control to either spouse over his or her money. It also facilitates a more egalitarian arrangement in the family.”
Ursua, whose organization has counselled battered women who would have left their husbands years ago if they had only managed to put aside some of the money they earned, observes that most women end up poor or poorer when a marriage ends.
“What usually happens in a marriage is the man controls the resources of the family, and women are left out, without access to the money, much less control,” she says.
Even when they don’t have substantial amounts of property when they get married, it would still be a smart idea to execute a prenuptial agreement. The contract could define the apportionment or use of what is in fact there, as well as whatever is acquired in the future.
Lulu’s case illustrates this. The shy scholarship coed got married right after college in 1978, before the Family Code took effect. There was no prenup. Under that part of the Civil Code which then applied, the regime of conjugal partnership of gains governed the property relations in her marriage. Working herself to the bone as a nurse in the States for eight years, she accumulated several million pesos, a small fortune in their province. Most of it went into a joint account with her husband and built them an airy three-bedroom bungalow -- a bungalow that for the last quarter of her absence, her husband shared with his mistress. On her return Lulu found out she had even been supporting this woman’s two children by another man.
Lulu is now back in the States, trying to save enough to bring her own kids over. She is starting from scratch, having been too tired to engage her husband in a lengthy court battle over property. “If only I’d had the foresight to take care of myself early on --” she is fond of saying. She is now 42.
The old regime of conjugal partnership of gains which applied in default of a prenuptial agreement is said to be more gender-friendly than absolute community of property. But it is of no help in the case of lower-middle-class women like Lulu, who do not inherit assets but acquire them usually after marriage by dint of hard work.
Admittedly, there’s no point in having a prenuptial agreement between two totally impoverished people. Why write things down when there’s nothing, aside from the usual vows exchanged at the ceremony, to agree on?
Three times a week, MWF
As befits all contracts, the provisions of the marriage settlement must not be contrary to law, good morals, good customs, public order and public policy.
This stuffy rule has some interesting ramifications. For instance, a man whose business includes the sale of shabu can’t validly arrange to split his profits with his wife-to-be. And a model whose best friend fixes her up with foreign businessmen at P50,000 an evening can’t arrange on paper to enjoy the proceeds of her sideline exclusively, even if her fiance knows and is liberal enough to condone it. She is technically a prostitute, and prostitution is illegal under Philippine law.
According to legal authority Manresa, whose commentaries are excerpted in Philippine civil law textbooks, the marriage settlement must generally confine itself merely to property relations. Note the word “generally,” and the fact that the law presents no impediments to kinkier matters.
Atty. Heidi Galos, law firm partner of celebrated trial lawyer Katrina Legarda, opines that prenuptial agreements can cover provisions on living arrangements, rearing of the children, and even conjugal relations, i.e. sex.
Obviously, nothing is too holy for the law. “They say when Aristotle Onassis and Jaquelyn Bouvier Kennedy executed their prenuptial agreement, it even provided how often Onassis could visit her,” Galos says. “And of course that means sleep together, have relations.”
A provision regulating the amount of lovemaking seems to run counter to a Family Code provision that says the spouses are obliged to live together and observe mutual love, respect and fidelity. But in reality it doesn’t: the law tells you what to do, but not how to do it.
“You cannot force someone to live with you or even have sex with you,” Galos adds. The latter amounts to marital rape.
While arranging for both spouses to sleep with other people is contrary to law, it would be interesting to see what a court would have to say about an agreement for both spouses to be celibate. Celibacy seems to run counter to the very notion of marriage contemplated in the Family Code, which subsumes “lovemaking” in legal passages like “living together” and “conjugal family life.”
But it’s not prohibited under the law. So far no one has brought forward a celibacy provision to be ruled upon, and anyway you’d have to be out of your mind to swear off sex for life.
You, me and the world
Galos suggests that before the couple take the decisive step of approaching a lawyer they, and their families, should already know what they want. This would save them the embarassment of arguing in front of a stranger. It would also reduce legal fees.
They should definitely seek professional advice to determine what aspects of the prenuptial agreement are valid, and what legal ramifications may be seen in future. All revisions to the agreement should be made before the marriage is celebrated.
Couples should bear in mind that marriage settlements were devised to help in the administration of their property, and that marriages are still bound by the vows exchanged at the ceremony and, ultimately, by the provisions in the Family Code. These provisions reflect the mores of the society that drafted them. A couple can’t just rewrite the concept of marriage, via a prenup agreement, to suit their fancy. When a man and woman decide to marry, in a way they subject themselves to a convention and are expected to act accordingly. This means they must, among other things, be loving, sedentary, friendly, faithful and fecund -- enough to make some of us glad for the option to be single and available!
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