By: Atty. Lj Ramos
No. A Prenuptial Agreement containing a stipulation that the husband will automatically obtain custody of the children in case of separation is invalid.
What is a Prenuptial Agreement?
A Prenuptial Agreement, also known as an Ante-Nuptial Agreement or legally as a “Marriage Settlement,” is an agreement executed by future spouses before marriage concerning their property relations during the marriage.
Article 1 of the Family Code provides that marriage is a special contract whose nature and consequences are governed by law and are generally not subject to stipulation, except that the parties may execute marriage settlements within the limits allowed by the Family Code.
In simple terms, a Prenuptial Agreement allows future spouses to decide how their properties will be managed during the marriage. For example, instead of the default property regime of Absolute Community of Property, the parties may agree that their properties shall remain separately owned.
What stipulations are not allowed in a Prenuptial Agreement?
While future spouses may agree on their property relations, they cannot alter or waive personal rights and obligations arising from marriage that are governed by law.
Article 63 of the Family Code provides that, in case of legal separation, custody of the minor children shall be awarded to the innocent spouse, subject to Article 213 of the Family Code.
Article 213 further states that, in case of separation of the parents, parental authority shall be exercised by the parent designated by the court. In determining custody, the court shall consider all relevant factors, especially the choice of a child over seven years of age, unless the chosen parent is unfit. Furthermore, no child under seven years of age shall be separated from the mother unless the court finds compelling reasons to do so.
How does this apply to this case?
In this situation, the Prenuptial Agreement states that, in case of separation, custody of the future children will automatically be given to the husband.
Such a stipulation is invalid because it does not merely regulate property relations; instead, it attempts to predetermine parental rights and child custody, matters which are strictly governed by law and subject to judicial determination.
The Family Code clearly provides specific rules regarding child custody in cases of separation. Custody cannot automatically be awarded based solely on a private agreement between the parties or their families. The court must still determine what arrangement would serve the best interests of the child.
Thus, if the wife is the innocent spouse, if the children are below seven years old, or if the children’s welfare would be better served under her custody, the law recognizes and protects those rights regardless of any contrary stipulation in a Prenuptial Agreement.
A Prenuptial Agreement is intended to give future spouses flexibility in managing their property relations. It cannot be used as a tool to deprive a parent of rights granted and protected by law, especially when the welfare and best interests of children are involved.
(Disclaimer: This material is provided for general legal information only and is not a substitute for legal advice. Its application depends on the particular facts and circumstances of each case. The views expressed by the author do not necessarily reflect those of the firm, its partners, or its associates.)
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