IN CONTEMPLATION OF DIVORCE:
EUROPEAN AND ITALIAN PERSPECTIVES
“To leave poor me thou hast the strength of laws,
Since why to love I can allege no cause.”
(Shakespeare, Sonnet 49)
Table of Contents: 1. Prenuptial Agreements in Contemplation of Divorce: an Historical Overview. – 2. Prenuptial Agreements in Contemplation of Divorce in the U.S.A. – 3. Prenuptial Agreements in Contemplation of Divorce in the United Kingdom. – 4. Prenuptial Agreements in Contemplation of Divorce in Continental Europe: Catalonia and Germany. – 5. The Case of France. – 6. Prenuptial Agreements in Contemplation of Divorce in Italy.
1. Prenuptial Agreements in Contemplation of Divorce: an Historical Overview.
A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage by the people intending to marry. The content of a prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage. They may also include terms for the forfeiture of assets as a result of divorce on the grounds of adultery; further conditions of guardianship may be included as well.
Postnuptial agreements are similar to prenuptial agreements, except that they are entered into after a couple is married.
Coming to the history of prenups, I have to point out that the widespread idea, according to which they would be something “new,” something foreign to our legal tradition, is not entirely true. Let me cite some examples.
Many rules of the Roman Law referred to the agreements between prospective spouses (or their families), called pacta nuptialia (marriage agreements), very often called as well “pacta antenuptialia,” or “pacta ante nuptias,” with a terminology which is very similar to some current expressions, still in use nowadays, such as “antenuptial agreements.” One of the most recurring elements in such contracts was the right of spouses to provide for the restitution of the dowry. Dowry was the transfer of money and/or of other kinds of assets (movable, real estate, etc.) from the bride (or, more often, her family) to the groom, at the moment of the marriage, in order to contribute a share of the costs involved in setting up a new household (ad onera matrimonii ferenda). The husband had the right to manage those assets, to perceive their fruits and interests (in order to use them for the family’s sake), but he was not their legal owner, at least in the full meaning of the word, as, the moment of the dissolution of marriage, he (or his heirs) had to give back the dowry.
Pacta nuptialia could therefore include agreements concerning, among other things, the person to whom the dowry had to be given back (either the wife, or her family: father, brothers, heirs, etc.). Grounds of dissolution of marriage in Roman Law were not only death or capitis deminutio maxima (e.g. if the spouse was taken as a prisoner of war and was sold as a slave), but also divorce. Therefore roman sources inform us extensively on this matter and we may find there many rules on how, to whom, in what time, etc. the dowry should have been given back in case of divorce. Moreover, many laws of the Digest and of the Codex of Justinian show that the envisaged scenario “par excellence” of dissolution of marriage was divorce, as the event that in most cases parties had in mind while concluding an agreement on patrimonial consequences of their future marriage.
“Cum quaerebatur, an verbum: Soluto matrimonio dotem reddi, non tantum divortium, sed et mortem contineret, hoc est, an de hoc quoque casu contrahentes sentiant? Et multi putabant hoc sensisse; et quibusdam aliis contra videbatur: secundum hoc motus Imperator pronunciavit, id actum eo pacto, ut nullo casu remaneret dos apud maritum.” (D. 50, 16, 240).
“It was asked, whether the expression ‘dowry to be given back in case of dissolution of marriage’ should encompass not only divorce, but also the case of death: which is to say, whether parties to such an agreement would intend that this contract refers also to this latter case [i.e. to death and not only to divorce]. Many (jurists) thought this was the case, but some others had a different mind. The Emperor decided that in no case dowry should stay with the husband.” (D. 50, 16, 240).
Also in the following centuries we find evidences of prenuptial agreements aimed at setting patrimonial rules on the assets of the parties in case of marriage crisis (legal separation, in this case, as, of course, divorce was not allowed by the Catholic Church). The first case I would like to mention deals with a decision issued at the end of the 16th century by the Rota Romana on the validity of a marriage contract that we could surely describe, in modern terms, as a prenuptial agreement in contemplation of the marriage crisis.
«Placuit Dominis, sententiam esse confirmanda: quia cum convenerit, ut in eventum separationis tori, D. Constantius teneretur D. Lisiae eius uxori praestare scuta 270, pro alimentis, et si in solutione eorum cessaverit per annum, ipsa possit agere ad restitutionem totius dotis: & D. Constantius dictam summam non solverit anno 1589. necessario sequitur, quod dos eidem D. Lisiae debeat restitui».
«The Judges [of the Rota Romana] decided to uphold the [first instance] judgement: as it had been agreed upon that, in case of legal separation, (a) Mr. Constantine would be obliged to pay to Mrs. Lisia, his wife, [every year] 270 scuta [silver currency unity of the time, in the Papal States, the current value of one scutum being of about € 75,00], as alimony, and (b) should Mr. Constantine stop to pay the said amount for one year, she could sue him and ask the Court to oblige him to give back all the dowry; [it happened that] Mr. Constantine did not pay that amount for the year 1589; therefore it was decided that he had to give back the dowry to Mrs. Lisia» (Bononien. restitutionis dotis, 16 May 1595, in Mantica, Decisiones Rotae Romanae, Romae, 1618, p. 539).
In this case the Rota Romana (second instance and supreme court in the Papal States) decided to uphold the first instance court decision, taken by the Rota of Bologna, that had declared valid and enforceable the agreement concluded before the marriage by a couple of that city. According to such premarital contract, the husband had promised to pay every year a certain amount of money in case of legal separation. He also had promised that, should he breach that obligation for one year, his wife could sue him and ask for restitution of the whole of her dowry. As he failed to pay alimony for the year 1589, he was sentenced to give back the dowry.
Even more interesting is the following case, decided on 20 June 1612 by the Supreme Court of Sicily.
«Sanctorus Pagano matrimonium contraxit cum Cornelia de Pactis, Nullo expresso contrahendi more, Graecorum, vel Messanensium: Sed cum pacto, Item che lo presenti matrimonio si intenda con patto, che casu (quod absit) di separatione di matrimonio, tanto senza figli come nati figli, et quelli morti in minori età, vel maiori ab intestato, che ogni uno stia con le suoi doti, et beni, che ha portato, et non aliter, et detta sposa non possa disponere, nisi tantum di unzi trenta».
«Mr. Santoro Pagano married Mrs. Cornelia de Pactis, without making any kind of express choice for the “Greek” or “Messina” marriage [i.e. the system of separation of assets, with the consequence that the marriage had to be considered as ruled by the “Latin” system of universal community of assets], But with the following clause: That this marriage should be intended that, in case (God forbid) of legal separation of marriage, without children, or, should children be born, should they die while minors, or, if come of age, die without having made last will and testament, anyone [husband, wife and children] will keep his/her dowries and assets he/she brought in the marriage, and nothing more, and the said bride will have only the amount of thirty unzi [unzo, onza, or oncia was the golden currency unit of the Kingdom of Sicily at those times, its current value being of about € 180,00]». (See Giurba, Decisionum novissimarum Consistorii Sacrae Regiae Conscientiae Regni Siciliae, I, Panormi, 1621, p. 399).
In a curious mixture of Italian and Latin, the Sicilian notary had provided for that, in case of separation, the customary community of goods (this form of general co-ownership of goods being the regular default system of asset regulations between husband and wife in the Sicilian city of Messina at those times) would be considered as if it had never been existing for that couple.
This is not the only example of an agreement of this kind in Europe. The French tradition knows very well the so called “Clause Alsacienne” (Alsatian Clause), according to which a couple can choose the system of general community of assets (comprising also real estates and goods acquired by each of the spouses before the marriage), but, in case of divorce, the dissolution of marriage will operate as a resolutory condition.
The final result is that if the couple does not part and marriage comes to an end by death, the rules of co-ownership shall apply and the surviving spouse will keep his/her share (and of course will add the share coming from the heritage); if, on the contrary, the marriage is a “failure,” the system of community (that logically presupposes a couple in which husband and wife are not at odds…) will be “annulled,” as if the two of them had never been married: what makes of course a lot of sense! (For further information on the “Alsatian Clause” see Oberto, La comunione legale tra coniugi, in Trattato di diritto civile e commerciale Cicu-Messineo, I, Milano, 2010, p. 386, note 171; II, Milano, 2010, p. 1671, footnote 198; Id., Suggerimenti per un intervento in tema di accordi preventivi sulla crisi coniugale, in Famiglia e diritto, 2014, p. 90, footnote 11).
2. Prenuptial Agreements in Contemplation of Divorce in the U.S.A.
Coming to the present state of the situation, we know that such agreements are widely known and practised in the United States.
Historically, judges in the United States accepted the view that prenuptial agreements were corrupting what marriage was supposed to stand for, and often they would not recognize them. Actually, it was not until 1976 that two Supreme Courts (California, in Re Marriage of Dawley and Connecticut, Parniawski v Parniawski) decided to uphold and enforce two prenups. Actually this happened only after states legislations got rid of the ancient rule of divorce based on the fault of one of the spouses. Before such reforms, which occurred in the mid-Seventies of the 20th Century, premarital agreements in contemplation of divorce were seen as way for the husband “to buy himself out the marriage, regardless of the circumstances of the divorce” (see the Supreme Court of Maryland in the 1956 case Cohn v Cohn: further information in Oberto, I contratti della crisi coniugale, Milano, 1999, p. 494 ff.).
Currently prenups are recognized, although they may not always be enforced. Both parties should have lawyers represent them to ensure that the agreement is enforceable. Some attorneys recommend videotaping the signing, although this is optional. Some states such as California require that the parties be represented by counsel if spousal support (alimony) is limited or waived.
Prenuptial agreements are, at best, a partial solution to obviating some of the risks of marital property disputes in times of divorce. They protect minimal assets and are not the final word. Nevertheless, they can be very powerful and limit parties’ property rights and alimony. It may be impossible to set aside a properly drafted and executed prenup. A prenup can dictate not only what happens if the parties divorce, but also what happens when they die, as Common Law systems do not know the Civil Law principle which forbids agreements on future heritage of a living person. Therefore, American prenups can act as contracts to make a will and/or eliminate all your rights to property, probate homestead, probate allowance, right to take as a predetermined heir, and the right to act as an executor and administrator of your spouse’s estate.
In the United States, prenuptial agreements are recognized in all fifty states and the District of Columbia. Likewise, in most jurisdictions, some elements are required for a valid prenuptial agreement:
1. agreement must be in writing (oral prenups are generally unenforceable);
2. full and/or fair disclosure at the time of execution;
3. the agreement cannot be unconscionable.
With respect to financial issues ancillary to divorce, prenuptial agreements are routinely upheld and enforced by courts in virtually all states. There are circumstances in which courts have refused to enforce certain portions/provisions of such agreements. For example, in an April, 2007 decision by the Appellate Division in New Jersey, the court refused to enforce a provision of a prenuptial agreement relating to the wife’s waiver of her interest in the husband’s savings plan. The New Jersey court held that when the parties executed their prenuptial agreement, it was not foreseeable that the husband would later increase his contributions toward the savings plan.
In California parties can waive disclosure beyond that which is provided, and there is no requirement of notarization, but it is good practice. There are special requirements if parties sign the agreement without attorney, and the parties must have independent counsel if they limit spousal support (also known as alimony or spousal maintenance in other states). Parties must wait seven days after the premarital agreement is first presented for review before they sign it, but there is no requirement that this be done a certain number of days prior to the marriage. Prenups often take months to negotiate so they should not be left until the last minute (as people often do). If the prenup calls for the payment of a lump sum at the time of divorce, it may be deemed to promote divorce. This concept has come under attack recently and a lawyer should be consulted to make sure the prenup does not violate this provision.
In California, Registered Domestic Partners may also enter into a prenup. Prenups for Domestic Partners can have added complexities because the federal tax treatment of Domestic Partners differs from that of married couples.
A sunset provision may be inserted into a prenuptial agreement, specifying that after a certain amount of time, the agreement will expire. In a few states, such as Maine, the agreement will automatically lapse after the birth of a child, unless the parties renew the agreement. In other states, a certain number of years of marriage will cause a prenuptial agreement to lapse. In states that have adopted the UPAA (Uniform Premarital Agreement Act), no sunset provision is provided by statute, but one could be privately contracted for. Note that states have different versions of the UPAA.
In drafting an agreement, it is important to recognize that there are two types of state laws that govern divorce – equitable distribution, of which there are 41 states and 9 states that are some variation of community property. An agreement written in a community property state may not be designed to govern what occurs in an equitable distribution state and vice versa. It may be necessary to retain attorneys in both states to cover the possible eventuality that the parties may live in a state other than the state they were married. Often people have more than one home in different states or they move a lot because of their work so it is important to take that into account in the drafting process.
3. Prenuptial Agreements in Contemplation of Divorce in the United Kingdom.
Prenuptial agreements in contemplation of legal separation were considered valid and enforceable in Britain in the eighteenth century and until the first decades of the nineteenth century, as witnessed by one of the most important essays on family law of those times.
However, as of the second half of the nineteenth century, prenuptial agreements in contemplation of divorce have historically not been considered legally valid in Britain, as against public policy.
This was true until the test case between the German heiress Katrin Radmacher and Nicolas Granatino, indicated that such agreements can “in the right case” have decisive weight in a divorce settlement. The judgments of the Appeal Court and of the Supreme Court of Britain in Radmacher v Granatino stand as a landmark in the history of English matrimonial and divorce law. They clearly established that, contrary to the previous line of authority holding that pre-nuptial agreements were against public policy, they were now to be given effect to so long as they were entered into by both parties freely and with full appreciation of their consequences.
The parties were both foreign nationals, the wife German (whose assets are assessed at about £ 100,000,000) and the husband French, who had signed a pre-nuptial agreement valid under German law but then divorced in the UK. In the High Court Baron J had awarded the husband £ 5.6m even though the pre-nuptial agreement had stated that neither party would seek maintenance from the other in the event of divorce. The wife therefore appealed.
Giving the lead judgment Thorpe LJ allowed the wife’s appeal broadly on the grounds that Baron J had not given sufficient weight to the existence of agreement in her initial award, though still providing the husband with some housing and other funds to reflect the shared residence of the couple’s children. At paragraph 53 of the judgment he also made the following statement “in future cases broadly in line with the present case on the facts, the judge should give due weight to the marital property regime into which the parties freely entered. This is not to apply foreign law, nor is it to give effect to a contract foreign to English tradition. It is, in my judgment, a legitimate exercise of the very wide discretion that is conferred on the judges to achieve fairness between the parties to the ancillary relief proceedings.”
Other relevant parts of the reasoning by Lord Justice Thorpe:
“There are many instances in which mature couples, perhaps each contemplating a second marriage, wish to regulate the future enjoyment of their assets and perhaps to protect the interests of the children of the earlier marriages upon dissolution of a second marriage. They may not unreasonably seek that clarity before making the commitment to a second marriage. Due respect for adult autonomy suggests that, subject of course to proper safeguards, a carefully fashioned contract should be available as an alternative to the stress, anxieties and expense of a submission to the width of the judicial discretion.”
“I also hold my opinion because: i) In so far as the rule that such contracts are void survives, it seems to me to be increasingly unrealistic. It reflects the laws and morals of earlier generations. It does not sufficiently recognise the rights of autonomous adults to govern their future financial relationship by agreement in an age when marriage is not generally regarded as a sacrament and divorce is a statistical commonplace.”
“As a society we should be seeking to reduce and not to maintain rules of law that divide us from the majority of the member states of Europe. Europe apart, we are in danger of isolation in the wider common law world if we do not give greater force and effect to ante-nuptial contracts.”
“In the circumstances, I agree in effect with my Lords that this is a case in which the pre-nuptial agreement made by the parties should be given decisive weight in the section 25 exercise. Their agreement was entered into willingly and knowingly by responsible adults. The husband had a proper understanding of the consequences of his agreement. It is to be inferred that without that agreement no marriage would have taken place, and that the wife’s father would not have made over to her the additional resources which followed her marriage. The parties entered into their agreement with the help and advice of a German lawyer, under German law, making an agreement which was familiar to the civil law under which both parties and their families had grown up in Germany and France.”
The decision by the Court of Appeals has been confirmed by the Supreme Court, in the year 2010.
Relevant parts of the S.C. reasoning:
“We would advance the following proposition, to be applied in the case of both ante- and post-nuptial agreements, in preference to that suggested by the Board in MacLeod: ‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.’”
“91. On 1 August, 1998 the parties attended at the office of Dr Magis near Düsseldorf. Their meeting with him lasted for between two and three hours. The husband told Dr Magis that he had seen the draft agreement but that he did not have a translation of it. Dr Magis was angry when he learned of the absence of a translation, which he considered to be important for the purpose of ensuring that the husband had had a proper opportunity to consider its terms. Dr Magis indicated that he was minded to postpone its execution but, when told that the parties were unlikely again to be in Germany prior to the marriage, he was persuaded to continue. Dr Magis, speaking English, then took the parties through the terms of the agreement in detail and explained them clearly; but he did not offer a verbatim translation of every line. The parties executed the agreement (which bears the date of 4 August, 1998) in his presence.”
“The agreement stated (in recital 2) that (a) the husband was a French citizen and, according to his own statement, did not have a good command of German, although he did, according to his own statement and in the opinion of the officiating notary (Dr Magis), have an adequate command of English; (b) the document was therefore read out by the notary in German and then translated by him into English; (c) the parties to the agreement declared that they wished to waive the use of an interpreter or a second notary as well as a written translation; and (d) a draft of the text of the agreement had been submitted to the parties two weeks before the execution of the document.”
“Clause 1 stated the intention of the parties to get married in London and to establish their first matrimonial residence there. By clause 2 the parties agreed that the effects of their marriage in general, as well as in terms of matrimonial property and the law of succession, would be governed by German law. Clause 3 provided for separation of property, and the parties stated: "Despite advice from the notary, we waive the possibility of having a schedule of our respective current assets appended to this deed.”
Clause 5 provided for the mutual waiver of claims for maintenance of any kind whatsoever following divorce:
“The waiver shall apply to the fullest extent permitted by law even should one of us – whether or not for reasons attributable to fault on that person’s part – be in serious difficulties.
The notary has given us detailed advice about the right to maintenance between divorced spouses and the consequences of the reciprocal waiver agreed above.
Each of us is aware that there may be significant adverse consequences as a result of the above waiver.”
The Supreme Court further dismisses the argument of the First Instance Judge, according to which parties had not received independent legal advice, remarking that the Notary had provided sufficient information on the consequences of that agreement.
“114. The Court of Appeal differed from the finding of the trial judge that the ante-nuptial agreement was tainted by the circumstances in which it was made. Wilson LJ, with whom the other two members of the court agree, dealt with these matters in detail. The judge had found that the husband had lacked independent legal advice. Wilson LJ held that he had well understood the effect of the agreement, had had the opportunity to take independent advice, but had failed to do so. In these circumstances he could not pray in aid the fact that he had not taken independent legal advice.
115. The judge held that the wife had failed to disclose the approximate value of her assets. Wilson LJ observed that the husband knew that the wife had substantial wealth and had shown no interest in ascertaining its approximate extent. More significantly, he had made no suggestion that this would have had any effect on his readiness to enter into the agreement.
116. The judge held that the absence of negotiations was a third vitiating factor. Wilson LJ observed that the judge had given no explanation as to why this was a vitiating factor, and that the absence of negotiations merely reflected the fact that the background of the parties rendered the entry into such an agreement commonplace.
117. We agree with the Court of Appeal that the judge was wrong to find that the ante-nuptial agreement had been tainted in these ways. We also agree that it is not apparent that the judge made any significant reduction in her award to reflect the fact of the agreement. In these circumstances, the Court of Appeal was entitled to replace her award with its own assessment, and the issue for this court is whether the Court of Appeal erred in principle.”
As a conclusion on this case, we can further read in the reasoning of the judgment that “Our conclusion is that in the circumstances of this case it is fair that he should be held to that agreement and that it would be unfair to depart from it. We detect no error of principle on the part of the Court of Appeal. For these reasons we would dismiss this appeal.”
After this benchmark case, the Law Commission, a statutory independent body that advises on law reform, recommended that prenups should become legally binding subject to stringent qualifications. One requirement should be that at the time of signing both parties must disclose material information about their financial situation and have received legal advice. A further restriction, under the commission’s proposals, is that agreements would only be enforceable “after both partners’ financial needs, and any financial responsibilities towards children, have been met.” Introducing prenuptial agreements without protection of the parties’ needs “would be very damaging,” the commission warns. That key proviso suggests tortuous legal disputes over the fairness of maintenance payments and financial needs would still have to be brought before courts.
The Commission has also called on the Family Justice Council, whose members include judges and lawyers, to produce “authoritative guidance on financial needs” to enable couples to reach an agreement that recognises their financial responsibilities to each other. The Government, the Commission said, should also fund a “long-term study to assess whether a workable, non-statutory formula could be produced that would give couples a clearer idea of the amounts that might need to be paid to meet needs.”
The Law Commission’s proposals have been sent to the Ministry of Justice, which will examine whether it wishes to draw up legislation on the basis of the suggestions. Past governments have shown reluctance to revise marriage laws. Actually, in a public statement released in 2017, the Ministry of Justice (MoJ) admitted that it “is still considering whether or not to legalise a form of prenuptial agreement recommended by the Law Commission.”
Legal doctrine, on the other side, has welcomed such recommendations, underlying that qualifying nuptial agreements would give couples autonomy and control, and make the financial outcome of separation more predictable. It must also be considered that, even before Radmacher, british legal doctrine tended to consider the traditional view as “paternalistic and anachronistic.” It has been remarked furthermore that these recommendations represent a welcome stride towards greater autonomy and certainty for couples. If implemented, then a prenup fulfilling certain conditions will be legally binding. However, it has been remarked that it will not be possible to avoid meeting the financial needs of partners and children and, as always, the question is what falls under the definition of ‘needs’? In any case scholars and practitioners agree on the positive effect of limiting judges’ discretion and of allowing couples greater certainty and pre-agreed financial control should their relationship disintegrate.
In the meantime, British Courts seem to follow the precedent of Radmacher v Granatino, as it is shown, for instance, by a judgment of 2014 (SA v PA), in which the (Dutch) husband contended that the parties were bound by a Dutch pre-marital agreement and the (British) wife argued for a compensatory payment by virtue of her having given up a high powered career. The Court upheld the agreement (signed in The Netherlands by both parties before a Dutch notary) which contained provisions on spousal assets, with exclusion of the immediate community (i.e. joint ownership) of all property on marriage, which is the default marriage regime of Dutch law. On the contrary, the contract provided for the equal sharing of the marital acquest inasmuch as it provided for the joint sharing of surplus joint income. The contract did not provide for what maintenance, if any, should be paid on divorce, in contrast to the German agreement in Granatino. In any case the rationale of this decision is clearly the same of that precedent, as the “core” of it contains the following sentence: “The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”
The same is true for a more recent case decided in 2016 by the Family Division (DB v PB).
This was an English divorce of two Swedish nationals aged 49 and 50, who had cohabited since 1994, married in 2000, and resided in England since 2009. They have two minor children. There was a forum race to divorce in Sweden versus England, but the wife beat the husband and “got in” first in England (per the Brussels IIa regulation). There were 3 prenuptial agreements, a Swedish one in July 2000, an American one in December 2000 and a further Swedish one on 26 December 2000.
All of the 3 prenups contained a prorogation clause stating Swedish law should apply on divorce and granting exclusive jurisdiction to the court in Stockholm on a divorce. The wife asked that the prenups be ignored on the grounds of misrepresentation and unfairness and sought half of the family pot. The husband asked for the prenups to be respected and accordingly for the wife simply to have her half share in the family home.
Per the agreements, the wife received her half share of the marital home worth approx. £560,000 after debts. But no more. Almost £11m was built up during marriage, but placed by the husband in his sole name maintaining the separate property agreement in the prenups. But, an English judge could only seek to make the terms of the prenups fairer within limitations of EU law, given the prorogation clauses. Maintenance claims (i.e. lump sum and periodical payments) had to be heard in Sweden. In the UK since 18 June 2011, the Maintenance Regulation (EC no. 4/2009), Article 4 allows written agreement on choice of court within the member states for issues of maintenance: “prorogation.”
The effect of such prorogation was to engage the Maintenance Regulation: all maintenance (lump sums and spousal maintenance) to be dealt with in Sweden, whereas England with claims dealing with “rights in property arising out of a matrimonial relationship,” unless such claims are “negated by the terms of the pre-nuptial agreement itself.” What regard is to be had to the prenup? Per Radmacher, the court is to give effect to the prenup, unless it would be unfair to do so, and a prenup cannot be allowed to prejudice the reasonable requirements of any children of the family.
If deemed unfair, (as here), does that mean the prenup should be disregarded? The judge held no. He followed Radmacher where the agreement had also been unfair, but in respecting autonomy of parties to enter legal relations, extra provision was then added in by the court, simply to alleviate the unfairness. (He highlighted the difference between inherited wealth, as in Radmacher, and wealth generated during the relationship, as in this case.) This means the court should alleviate unfairness but having regard to the terms of the prenup – and not seeking to restore the parties to the position they would have been in absent the agreement. (Here there was a separate property regime and all was in husband’s name save for family home, so the court could only meet the wife’s needs.) How generously needs are to be met is considered on a case by case basis, and by invading the husband’s separate property. (Needs include spousal maintenance, and the making of Duxbury lump sums, but that is for Sweden to deal with in this case).
As far as housing needs of wife and children are concerned, where the European Maintenance Regulation is effective (as here) the needs cannot be met, and sharing is prevented per the prenup, so recourse can be had to the Children Act 1989, within divorce proceedings, to provide housing on trust, (and here, without contribution by the wife so she can invest her own share of the family home for when this trust property reverts to husband.) And, further a carer’s allowance under CA 1989, plus child maintenance (see Family Law in Partnership, DB v PB: English divorce of Swedish nationals and the impact of prenuptial agreements.)
4. Prenuptial Agreements in Contemplation of Divorce in Continental Europe: Catalonia and Germany.
We saw that at the basis of the rationale of Radmacher v Granatino lays the assumption that, had such a prenup been brought before a court in France or in Germany, it would have been considered as valid and enforceable. This remark is certainly true if we consider what we call in Continental Europe the choice of the régime, with particular reference to the choice for a system of separation of assets.
The situation is different if we have regard to the antenuptial regulation of alimony (maintenance) in case of divorce or separation. This possibility is excluded in countries such as France or Italy, whereas more and more countries in Continental Europe allow such provisions.
I could cite here the case of the Family Law Code of Catalonia (Codi de familia), whose article 15 provided in 1998 the possibility for spouses to agree on assets and patrimonial issues “àdhuc en previsió d’una ruptura matrimonial” (as well in contemplation of a marriage crisis). This provision has been replaced in 2010 (see Llei 25/2010, del 29 de juliol, del llibre segon del Codi civil de Catalunya, relatiu a la persona i la família) by article 231-20 of the Codi Civil de Catalunya, which now dictates some interesting rules on the way such agreements have to be made and enforced. Here it is as well interesting to remark that same provisions are available to cohabiting partners, according to article 234-5 of the same code.
As for Germany, one should take into account that the contract autonomy of parties has always played a key role, what reflects the thoughts of the greatest German philosophers. I could her quote for instance Hegel (see Grundlinien der Philosophie des Rechts, Leipzig, 1930, p. 147), who said that marriage contracts (Ehepakten) were intended to regulate relations between spouses “in case of separation of marriage for death, divorce or similar events” (gegen den Fall der Trennung der Ehe durch natürlichen Tod, Scheidung u. dergl.).
When considering the German legal system we must always keep in mind two main factors.
(i) Since the early 16th century, Germany has known the insurgence of the Protestant doctrine, which denied that marriage could be considered as a sacrament: it was therefore much easier for German jurists of the 16th, 17th and 18th century (such as Thomasius, Struvius, Leyser, Lauterbach, Boehmer, etc.) to elaborate a new doctrine of marriage. According to this new viewpoint, marriage could be seen just as a contract, which, as any other contract, could be dissolved by mutual consent, with any kind of agreement on such dissolution.
(ii) Furthermore, we must not forget that in many regions of Germany, Roman Law has been applied until 31st December, 1899; in the Roman legal system, as I have already pointed out, it was accepted that spouses could provide for patrimonial consequences of a possible divorce since the very moment in which they got married.
As a consequence, German case law and German legal doctrine have always stated that such agreements should be seen as valid and enforceable, also when they foresaw a complete waiver of rights by spouses in case of divorce.
So e.g., according to a decision of the BGH (Supreme Court of Germany) from 1995 “for agreements of financial kind, which spouses precautionally already make during the marriage or even before the marriage ceremony in contemplation of the case of a later divorce, exists the principle full freedom of contract (§ 1408 Para. 1 and Para. 2 of the BGB-German Civil Code). No special control on the contents of such agreements has to take place, on whether the regulation is appropriate. The enforceability of the agreement does not depend on additional conditions, e.g. of the fact that for a maintenance renouncement or waiver of spousal support a return or a payment of a compensation is agreed upon” (see BGH 27.9.1995).
No effect on the enforceability of the agreement was also played by the fact that “in such a case the resolution to divorce could turn out to be for economic reasons far more difficult to one spouse than the other” (BGH 19.12.1989, FamRZ 1990, 372; see also BGH 2.10.1996).
According to this case law, German notaries have been developing different models of marriage contracts, which I describe in my book about the “Contracts of Marriage Crisis” (I contratti della crisi coniugale). They may contain clauses in which one party (or both) waive any right to alimony, such as: “the husband [or the wife, or both of them] gives up to any pretension concerning alimonies in case of divorce, also in a situation of need.” Among the many other different possibilities we may find agreements in which alimony or divorce support are not waived, but are determined in a precise way, for instance by setting a limit (no more than € … for each month), or by fixing the amount of alimony as a ratio of the income of the “richest” party (e.g.: 20% of the net income of the party who will have the highest income), or by setting a time limit (sunset provision) for such alimonies (e.g.: for no longer than 5 years after dissolution of the marriage). German marriage contracts (Eheverträge) can also contain provisions in case of death of one of the spouses.
Some changes were brought about by a decision of the Federal Constitutional Court in 2001 (BVerfG 6.2.2001), followed by a decision of the Federal Court of Justice (BGH 11.2.2004). These two judgments ruled that notarized prenuptial agreements that seriously disadvantage one party in a marriage could be deemed invalid. The judges stated that while, in principle, a contract may state that one of the partners has renounced his or her right to receive alimony, if the agreement is one-sided it would be morally unacceptable and could therefore be challenged. The court also ruled that a spouse is free to contest the contract in instances of imbalance where her partner’s income has risen dramatically during the marriage because, for example, she was home caring for children.
Many scholars have criticised this view, according to which the traditional freedom of parties in a contract is “patronized” by judges’ personal views. Moreover, powers of judges in Civil Law legal system do not allow such kind of intervention on the “fairness” of an agreement, if parties do not breach certain rules of the civil code: rules that however do not provide parties (who freely and knowingly concluded an agreement) with the right to get rid of their contractual engagements, simply because they changed their minds.
5. The Case of France.
Also in France, as in any other country of Continental Europe, spouses have the possibility to sign a marriage contract prior or during the marriage. A French marriage contract (contrat de mariage) deals (as in Italy, Spain, Germany etc.) with the possible consequences of the marriage on the spouses properties acquired before or during the marriage. This is the reason why in French law, as in Italy, Spain or Portugal, we use the expression “matrimonial regime,” the word “regime” meaning “rule” in languages of Latin origin (in Latin language “regimen” means “governance,” or “management,” or “administration”). A matrimonial regime is a body of rules about the effect of the marriage on the administration, the enjoyment, the disposal of their property by the spouses during the marriage.
In French (as in Italian, Spanish, Portuguese etc.) law, the scope of a marriage contract is to determine the matrimonial regime chosen by the spouses, without any reference to spousal support (maintenance or alimony) in case of legal separation or divorce. So, marital agreements are legally valid and binding, but concern the arm’s length division of assets and enrichment, without setting any “equitable element” to try and pre-empt the divorce court right to “tip the scale”, whilst in England (as well as in Common Law countries), they are essentially linked to divorce and avoiding equitable distribution. According to many scholars, under French law, one cannot exclude the right to a “compensatory payment” (préstation compensatoire) on the occasion of divorce, contrary to German law, where it can be waived (as in Radmacher v Granatino).
However, I have to point out that—others than in Italy—French notaries, while drafting a marriage contract, have a large power to “tailor” the property regime chosen by the spouses on their needs, wishes and expectations. So, just to make an example, French courts deem the already mentioned “Alsace Clause” perfectly valid and enforceable; parties can furthermore provide a community of acquests regime in which the shares of the spouses are not equal, or where the rights of one of the parties can be paid off with a lump sum, or with the conveyance of movable assets or of real estates, and so on (see on this Oberto, La comunione legale tra coniugi, I, cit., p. 385 ff.; for some references available online see as well Oberto, Contratti prematrimoniali e accordi preventivi sulla crisi coniugale, in Famiglia e diritto, 2012, p. 69-103, spec. § 3, footnotes 42-47).
Also on the side of the préstation compensatoire, more and more lawyers, notaries and scholars are advocating for a law reform allowing parties to freely dispose of it before entering into a marriage.
Furthermore, some decisions issued in cases concerning international couples are showing that French judges are not against foreign prenuptial agreements, as it is shown, for instance, by a 2010 judgement of the Court of Grasse. Here the judge upheld an English prenup, in which the parties had agreed upon the fact that, in case of breakdown of the marriage, each spouse would keep his or her assets, she would get £ 50,000.00 (indexed) for each year of marriage (until the filing of a divorce petition) and this amount was to cover any financial claim or remedy of any sort. At the time of marriage, he also bought her a flat in her name on the Cote d’Azur, then worth about £ 300,000.00.
6. Prenuptial Agreements in Contemplation of Divorce in Italy.
In Italy marriage contracts can been concluded either before or during the marriage by notary deed (see article 162 of the Italian Civil Code).
However—as I have already explained—such deeds are mainly intended as instruments to chose a “marriage regime” other than the default one, which is the comunione legale (community of acquests). However, the optional system of separazione dei beni (separation of assets) can be chosen at the very moment of the celebration of marriage with a declaration of the spouses to the mayor or to the parish priest celebrating the marriage.
By notary deed spouses can also elect a fondo patrimoniale (capital fund, somehow similar to a trust, by which spouses can chose to submit some assets—real estates or negotiable instruments, such as securities, bonds, company shares, etc.—to special rules, in order to allocate their revenues to the family needs), but parties’ freedom of movement in shaping the default community of acquests regime is very narrow, as no variation may be made in the power to manage and administer the assets belonging to the comunione and parties cannot depart from the rule that the partition of the community must be made in equal portions. As an alternative to comunione and separazione regimes spouses can chose a system of general community, extended to (almost) all assets belonging to them and acquired either before or after the celebration of the marriage (comunione convenzionale).
However, as already explained, the Italian Civil Code does not mention the matter of spousal support among the subjects that a marriage contract can deal with. Furthermore, the Supreme Court of Cassation has always deemed null and void any agreement made in contemplation of a future divorce, either concluded during the time of legal separation, or before.
In order to better understand the position of the Court, one has to keep in mind that Italy is one of the last countries in the world to allow divorce only to those couples who have previously undergone a judicial proceeding of legal separation. Until 2015, moreover, three years had to elapse after the judicial proceeding of legal separation had been initiated, before starting the procedure for divorce. In 2015 Italian Parliament approved a reform reducing such timeframe to one year (in case of contentious judicial separation), or to six months (in case of legal separation by mutual agreement); however, the requirement of a previous formal separation is still required as a necessary pre-condition for the divorce.
Having said this, it is easily understandable that very often couples who reached an agreement in the process of legal separation would like to avoid any future possible dispute during the divorce process. However, most agreements of that kind have been declared null and void by the Supreme Court of Cassation, at least in the part in which they set forth provisions to be applicable in case of divorce (e.g.: the wife gives up to any right to alimony and pledges not to claim alimony or lump sums during the future divorce process). The reason is that such provisions could impair the freedom of both parties to decide whether to divorce or not. Such influence by possible pecuniary consequences on the “personal” freedom of choice about the decision to divorce (or to abstain to divorce) would render the agreement contrary to public order and therefore null and void. In other words, according to such viewpoint, with this agreement parties envisage a contract whose object is their legal status of married people, whereas personal legal status is non-negotiable (some scholars cite here the biblical example of Esau, who traded his birthright to Jacob for a bowl of lentil soup!).
I spent a lot of energy and time in my articles and books trying to give evidence that this assumption is basically wrong, as it makes confusion between:
(i)—on one side—an agreement in which a party would theoretically pledge not to divorce (or not to ask legal separation), as well as to divorce (or to ask legal separation), which would be surely against ordre public, and
(ii) an agreement—on the other side—in which parties only provide for patrimonial consequences of the (possible) decision to divorce.
Moreover, the Italian legal system provides for examples of pre-emptive agreements on the patrimonial consequences of a new status. Therefore in Italy (as everywhere in the world), marriage contracts—which, according to the Civil Code, can be concluded before the marriage—deal with patrimonial consequences of the new prospective status of married people (distribution of assets acquired by spouses before or after the marriage, making a choice among community of acquests, general community of all goods, separation of assets, etc.); so, why on earth an agreement on future consequences of another possible change of status (divorce) should be deemed illegal?
A donation between future spouses can be made dependant on the prospective marriage (see article 785 of the Italian Civil Code), what means that an event consisting in the alteration of a personal status (from single to married) can influence property right consequences of a contract (such as a donation). Why shouldn’t we apply the same rule to the very similar situation in which we have another alteration of a personal status (from married to divorced)?
I use to say as well that the above mentioned case law of our Supreme Court is “educationally harmful,” because it engenders the false idea that among spouses “pacta non sunt servanda” (agreements can be broken). Actually, it happens very often that a spouse “feigns” to agree with the other in the framework of the legal separation process, with the mental reservation to re-open the discussion (and to set forth new claims) afterwords, during the divorce proceedings.
However, I would like to conclude this presentation with some more optimistic notes.
First of all we have to consider that, since 1987, husband and wife can divorce on the basis of a mutual agreement, which must also comprise an agreement on pecuniary aspects and maintenance: what makes clear that this subject is not “untouchable” by parties’ consent.
Secondly, in 2014 two new kinds of divorce (and legal separation) have been introduced, which completely “skip” any form of intervention by a court. In case of agreement, parties can have their divorce by mutual consent simply signing a paper before two lawyers, in the framework of a proceedings of “collaborative law” (negoziazione assistita) or, as an alternative, before the civil registrar of the townhall: no judgement, order or decree from a court is needed any longer. Actually, in the case of negotiations, the agreement between the spouses must be concluded with the participation of advocate and each of the spouses must be represented by at least one advocate. The agreement is than sent to the Prosecutor, and if he/she gives an positive opinion to it, the agreement shall be sent to the appropriate registrar’s office.
Consequence of such reforms is that nowadays none can claim that the very idea of an agreement on the pecuniary consequences of a divorce should be held as in opposition to an alleged pre-eminence of a judicial intervention: an intervention that, in fact, the will of the parties can completely exclude.
Actually, in recent times many scholars declared to subscribe my viewpoint, deeming prenuptial agreements in contemplation of separation and/or divorce valid and enforceable, whereas some judicial decisions are starting to overturn the “traditional” case law.
For instance, in 2012 a decision by my Court (the first one of this kind in Italy) stated that agreements reached by married couples at the moment of their separation are valid and enforceable also as far as their provisions in contemplation of divorce are concerned. Therefore, the President of the Court of Turin denied to allocate alimony lite pendente to a woman who had claimed this money from her husband at the moment of the start of a litigation on divorce, whereas she had given up to any such pretensions (explicitly mentioning the case of future divorce) in the agreement she had made with her husband during the process of legal separation three years earlier.
But a new wind seems sometimes to be blowing also in the Supreme Court.
Among the many cases, I would like to make here reference to a decision in which, already thirty years ago, the Court decided that a postnuptial agreement of an American couple, although contrary to Italian domestic public order, was not against the Italian international public order and therefore was enforceable in Italy (see Cass., 3 maggio 1984, n. 2682).
Many years later, in 2012, the Italian Supreme Court of Cassation ruled that the “traditional” case law was not applicable to a situation in which an Italian couple had agreed—just one day before the marriage—that, in case of divorce (or of legal separation), the wife would convey to her prospective husband the property of a flat of hers, as a compensation for expenses he had made in order to restore another flat of the same woman (see Cass., 21 dicembre 2012, n. 23713).
In 2013 the same Court decided that two fiancés can agree that the sum of money that one of them has lent to the other, can be claimed back only if their future marriage will end with a legal separation (see Cass., 21 agosto 2013, n. 19304).
In both such cases the Court claimed that these decisions would not overturn the “traditional” viewpoint, because “prenuptial agreements in contemplation of divorce” could be considered only pre-emptive agreements concerning maintenance obligations or spousal support (alimony). Of course this rationale is flawed, as what pertains to the essence of prenuptial agreements in contemplation of divorce is the fact to agree on pecuniary consequences of divorce, regardless of the nature and scope of such consequences: whether conveyance of real estates, or delivery of any kind of goods, or return of money to lender, or reimbursement of expenses, or payment of alimony, and so on.
In 2015 the same Court decided a case concerning an agreement parties had entered into at the moment of their separation and held it as valid and enforceable, even though it had been “kept aside” (a latere, as we say) and was not transposed in the agreement submitted to the court. Nothing new under the sun, as, by the way, this principle has always been affirmed by the Court of Cassation. The case had no reference to the situation of an agreement which parties intended to be effective also for their divorce. However—in the reasoning of their judgement—the supreme justices added (incidentally, not with the force of a true ratio decidendi) that covenants among spouses made before divorce and in view of it are not against public policy (see Cass., 3 dicembre 2015, n. 24621).
Quite the opposite, in 2017 two decisions of the very same 1st Civil Division of the Court reasserted the “traditional” view, that maintenance in case of divorce cannot be disposed of by spouses and therefore any kind of agreement involving it and entered into prior to the moment of the divorce is null and void as countrary to public policy (see Cass., 13 gennaio 2017, n. 788 and Cass., 30 gennaio 2017, n. 2224).