Paano na kaya?

Paano na kaya kung ang magiging asawa mo, eh, mayaman at may anak? [So… what if the person you are about to marry is wealthy and has children?]

Paano na kaya kung may duda ka na ‘yung magiging asawa mo, eh, isang “gold digger”? [What if you suspect that the person you are going to marry is a “gold digger”?]

Paano na kaya kung gusto ng magulang mo na mag-sign muna kayo nang fiancé(e) mo nang pre-nuptial agreement bago kayo ikasal? [What if your parents want you and your fiancé(e) to sign a pre-nuptial agreement?]

In the world of love and marriage there are no absolutes and a million questions beginning with paano na kaya?, what is the right answer? Everyone has heard the saying, “follow your heart” in movies, books, and on TV. It is a saying that has been repeated over and over again to illustrate the importance of love. Since it’s that time of year again, when the shopping centres have been overrun by red hearts, chocolates, cupids and Valentine’s Day cards and, since Kim Chiu and Gerald Anderson’s new movie Paano Na Kaya? [What If?] has just premiered in the Philippines and in several cities across the United States, I thought it would be a good time to talk about the implications of marriage and the law.

Now, I just want to emphasize at the onset that I do not practice family law. If you call me and ask me a question about custody, divorce or any similar issues, I will refer you to a family law practitioner. Why? Because family law is a very complex area of law and most lawyers, myself included, do not want to “dabble” in such an area.

In today’s age of second marriages and mixed families, one of the most important legal tools that can be used is the spousal agreement, or more commonly called the “pre-nup”. However, as I do not practice family law, this article will not be about what you need to know in order to have a proper spousal agreement. Instead, I will touch upon some of the implications of marriage on other areas of the law if there is no pre-nup.

A spousal agreement is important because it will lay out exactly what will happen to the couple’s assets in the event of a marriage breakdown. Unfortunately, the very nature of this document sends many running in the opposite direction.

In our culture, marriage is supposed to last forever. If you start talking about the possible break-up of the marriage even before the wedding are you not jinxing it? Or perhaps putting into motion a self-fulfilling prophesy?

Some will say that you should follow your heart in these types of situations and not let legal issues get in the way. Others will advise that you need to be practical – i.e. you need to follow your brain and not your heart.

Only the couple embarking upon a life together can make the ultimate decision. Pre-nups are applicable to all couples, regardless if it’s their first or second marriage. However, if the upcoming marriage is the second for one or both of the parties, there are a number of issues that a pre-nup can address. Without a pre-nup, the couple will need to address these issues individually as they emerge.

As I have mentioned in previous articles, a marriage will invalidate a last will and testament. Imagine a couple who were both widowed and are about to embark upon a second marriage. The man has children but the woman does not. What will the marriage mean for this new family if the couple decides not to use a spousal agreement?

The first legal ramification of the marriage will be the invalidity of the wills of both individuals. Consequently, if the man’s old will had stated that his assets would all go to his children upon his death, this will no longer be the case. Even if it was the intention of the man and his deceased spouse that their children would benefit from their joint assets after they were both gone, this will no longer be the case. Upon the man’s remarriage, the new wife therefore becomes entitled to half of his estate. He will also need to make a brand new will.

In most instances, the estate will include the family home. If the newly married couple uses the house as their new marital home, even if the house is in the name of only the husband, the new spouse acquires homesteads rights and the husband will therefore not be able to sell the house without the consent of the new spouse. Other issues such as the beneficiaries for investments, life insurance policies and RRSPs will also need to be reviewed.

Marriage, at its very core, is a legal contract between two people. The law doesn’t care if it’s a first marriage, a second marriage or even the third. The only legal issue at hand is that two people willingly enter into an exclusive contract with one another. Once married, each spouse acquires certain marital rights under the law. It is therefore up to the individuals involved to determine what additional agreements they enter into.

The use of a spousal agreement is not the only tool that can be used. Assets can be transferred to the children before the marriage, investments, insurance policies and RRSPs can be cashed out or beneficiaries can be changed. There are many things that can be done to ensure that the wishes of the couple, and sometimes the wishes of their families or deceased spouses, are followed. But none of these things can be achieved until the couple decides to open the dialogue. In the movies and in TV, asking, paano na kaya? instead of making firm decisions makes for a great plot line, however, in real life it could add complications that could easily have been avoided. Following your heart is great, but sometimes, we also need to keep an open mind.

The content of this article is not intended as legal advice and is for information purposes only. Should you require legal advice on a specific issue relating to the contents of this article, please seek the services of a legal professional.

Alona C. Mercado is a lawyer practicing in Winnipeg with the law firm of MONK GOODWIN LLP. She was called to the Manitoba Bar in 1999 and the Ontario Bar in 2003. Her preferred areas of practice include wills and estates, committees, real estate and immigration law. Alona can be reached at (204) 956-1060 ext. 233 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

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