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.[1] 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.[2]
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.[3] 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 a case decided on 20 June 1612 by the
Supreme Court of Sicily.[4] Here, 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![5]
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[6] 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.”[7]
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), [8] 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 have historically not been considered legally valid in Britain. This
was true until the test case between the German heiress Katrin Radmacher and
Nicolas Granatino, [9] 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.[10]
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,[11] 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 partner’s 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 will be 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.
Legal doctrine 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 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, [12] 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.”
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[13] 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[14] by article 231-20
of the Codi Civil de Catalunya,[15] 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[16] of the same code.
As for Germany,[17] 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,[18] 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.”[19]
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.”[20]
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.”[21] They may contain
clauses in which one party (or both) waive any right to alimony,[22] 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,[23] 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[24] of one of the
spouses.
Some changes were brought about by a decision of the Federal
Constitutional Court in 2001,[25] followed by a
decision of the Federal Court of Justice.[26] 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” 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.[27]
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.[28] 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[29] 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. Currently,
moreover, three years have to elapse after the judicial proceeding of legal
separation has been initiated, before starting the procedure for divorce, even
though a government bill, currently discussed by the Parliament, could reduce
such timeframe to one year.
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) three years after, during the divorce proceedings.
However, I would
like to conclude this presentation with some more optimistic notes.
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[30] (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 is
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.[31]
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.[32]
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.[33]
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.
[1] On
prenuptial, antenuptial, premarital agreements, see references in Oberto, I contratti della crisi coniugale, I, Milano, 1999, 387, 483; Id., «Prenuptial agreements in
contemplation of divorce» e disponibilità in via preventiva dei diritti
connessi alla crisi coniugale, Rivista di diritto civile, 1999, II,
171; Id., Sulla natura
disponibile degli assegni di separazione e divorzio: tra autonomia privata e
intervento giudiziale, Famiglia e diritto, 2003, 389, 495; Id., Contratto
e famiglia, in Trattato del contratto,
a cura di Vincenzo Roppo, VI, Interferenze,
a cura di Vincenzo Roppo, Milano, 2006, 242, 253; Id., Gli accordi preventivi sulla crisi coniugale, Familia,
2008, 25. See as well Comporti, Autonomia privata e convenzioni preventive
di separazione, di divorzio e di annullamento del matrimonio, Foro
italiano, 1995, I, 105, 113; G.
Gabrielli, Indisponibilità
preventiva degli effetti patrimoniali del divorzio: in difesa dell’orientamento
adottato dalla giurisprudenza, Rivista del diritto civile, 1996, I,
699; Giaimo, I contratti paramatrimoniali in Common Law, Palermo, 1997, 31; Balestra, Gli accordi in vista del divorzio: la Cassazione conferma il proprio
orientamento, Corriere giuridico, 2000, 1023; Angeloni, La cassazione attenua il proprio orientamento negativo nei confronti
degli accordi preventivi di divorzio: distinguishing o perspective overruling?,
Contratto e impresa, 2000, 1136; Bargelli, L’autonomia privata nella
famiglia legittima: il caso degli accordi in occasione o in vista del divorzio,
Rivista critica di diritto privato, 2001, 303 ss.; Di Gregorio, Divorzio e accordi patrimoniali tra coniugi, Notariato, 2001, 17; Dellacasa,
Accordi in previsione del divorzio,
liceità e integrazione, Contratti,
200146; Ferrando, Crisi coniugale e accordi intesi a definire
gli aspetti economici, Familia,
2001, 245; Pazzaglia, Riflessioni sugli accordi economici
preventivi di divorzio, Vita notarile,
2001, 1017; Palmeri, Il contenuto atipico dei negozi familiari,
Milano, 2001, 116; Al Mureden, Le
rinunce nell’interesse della famiglia e la tutela del coniuge debole tra legge
e autonomia privata, Familia,
2002, 1014; Id., I prenuptial agreements negli Stati Uniti e nella prospettiva del
diritto italiano, Famiglia e diritto,
2005, 543; Busacca, Autonomia
privata dei coniugi ed accordi in vista del divorzio, Diritto & Formazione, 2002, 57; Catanossi,
Accordi in vista del divorzio e «ottica
di genere». Uno sguardo oltre Cass. n. 8109/2000, Rivista critica di diritto privato, 2002, 169; Marella, La contrattualizzazione delle relazioni di coppia. Appunti per una
rilettura, Rivista critica di diritto
privato, 2003, 95; Coppola, Gli accordi in vista della pronunzia di
divorzio, in G. Bonilini &
F. Tommaseo, Lo scioglimento del matrimonio, Art.
149, Codice Civile. Commentario,
a cura di P. Schlesinger, Milano, 2004, 643; Ead.,
Le rinunzie preventive all’assegno
post-matrimoniale, Famiglia, persone
e successioni, 2005, 54; Ruggiero,
Gli accordi prematrimoniali, Napoli,
2005; Quadri, Autonomia dei coniugi e intervento giudiziale nella disciplina della
crisi familiare, Familia, 2005,
6; Maietta, Gli accordi prematrimoniali e gli accordi di convivenza. nel diritto
italiano e negli altri ordinamenti, http://www.uniese.it/pubblicazioni/gli-accordi-prematrimoniali-e-gli-accordi-di-convivenza-nel-diritto-italiano-e-negli-altri-ordinamenti.html; M. Romano
& Sgroi, Gli accordi preventivi in vista della crisi coniugale. Come
disciplinare i rapporti patrimoniali tra le parti, Gli aspetti patrimoniali della famiglia. I rapporti patrimoniali tra
coniugi e conviventi nella fase fisiologica ed in quella patologica, a cura
di G. Oberto, Padova, 2011, 25.; Fusaro,
Marital contracts, Ehevertraege,
convenzioni e accordi prematrimoniali. Linee
di una ricerca comparatistica, Nuove leggi
civili commentate, 2012, 475.
|
[2] “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). |
|
[3] “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,
539). |
|
[4] “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, 399). |
[5] 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, 386, footnote
171; II, Milano, 2010, 1671, footnote 198; Id.,
Suggerimenti per un intervento in tema di
accordi preventivi sulla crisi coniugale, Famiglia e diritto, 2014, 90, footnote 11.
[6] California: in Re Marriage of Dawley, 17 Cal. 3d
342, S.F. No. 23418, Supreme Court of California (June 29, 1976). Connecticut: Parniawski v Parniawski, 33 Conn. Sup.
44, 359 A. 2d 719 (1976).
[7] See the Supreme
Court of Maryland in the 1956 case Cohn v
Cohn: further information in Oberto,
I contratti della crisi coniugale, I,
Milano, 1999, 494.
[8] http://www.uniformlaws.org/shared/docs/premarital%20and%20marital%20agreements/2012am_pmaa_draft.pdf.
[9] http://www.bailii.org/ew/cases/EWCA/Civ/2009/649.html
(see also: http://www.dailymail.co.uk/news/article-1322117/Judges-pre-nuptial-agreements-Britain-Katrin-Radmacher-wins-landmark-case.html).
[12] SA v PA (Pre-marital agreement: Compensation) [2014] EWHC 392
(Fam), http://www.familylawweek.co.uk/site.aspx?i=ed127807.
[13] “Article 15.
Contingut.
1. En els capítols matrimonials,
hom pot determinar el règim econòmic matrimonial, convenir heretaments, fer
donacions i establir les estipulacions i els pactes lícits que es considerin
convenients, àdhuc en previsió d’una ruptura matrimonial.
2. Els capítols
matrimonials es poden atorgar abans o després del casament. Els atorgats abans
només produeixen efectes a partir de la celebració del matrimoni.”
[14] See Llei 25/2010, del 29 de juliol, del llibre segon del Codi civil de
Catalunya, relatiu a la persona i la família.
[15] “Article 231-20.
Pactes en previsió d’una
ruptura matrimonial
1. Els pactes en previsió
d’una ruptura matrimonial es poden atorgar en capítols matrimonials o en una
escriptura pública. En cas que siguin avantnupcials, només són vàlids si
s’atorguen abans dels trenta dies anteriors a la data de celebració del
matrimoni.
2. El notari, abans
d’autoritzar l’escriptura a què fa referència l’apartat 1, ha d’informar per
separat cadascun dels atorgants sobre l’abast dels canvis que es pretenen
introduir amb els pactes respecte al règim legal supletori i els ha d’advertir
de llur deure recíproc de proporcionar-se la informació a què fa referència
l’apartat 4.
3. Els pactes d’exclusió
o limitació de drets han de tenir caràcter recíproc i precisar amb claredat els
drets que limiten o als quals es renuncia.
4. El cònjuge que
pretengui fer valer un pacte en previsió d’una ruptura matrimonial té la
càrrega d’acreditar que l’altra part disposava, en el moment de signar-lo,
d’informació suficient sobre el seu patrimoni, els seus ingressos i les seves
expectatives econòmiques, sempre que aquesta informació fos rellevant amb
relació al contingut del pacte.
5. Els pactes en previsió
de ruptura que en el moment en què se’n pretén el compliment siguin greument
perjudicials per a un cònjuge no són eficaços si aquest acredita que han
sobrevingut circumstàncies rellevants que no es van preveure ni es podien
raonablement preveure en el moment en què es van atorgar.”
[16] “Article 234-5.
Pactes en previsió del cessament de la convivència
En previsió del cessament
de la convivència, els convivents poden pactar en escriptura pública els
efectes de l’extinció de la parella estable. A aquests pactes se’ls aplica l’article 231-20.”
[17] See references in Oberto,
I contratti della crisi coniugale, I,
Milano, 1999, 529; Id., «Prenuptial
agreements in contemplation of divorce» e disponibilità in via preventiva dei
diritti connessi alla crisi coniugale, Rivista di diritto civile,
1999, II, 171; Id., Gli accordi
preventivi sulla crisi coniugale, Familia, 2008, 25; Id., Il
futuro europeo del diritto patrimoniale della famiglia (Conferenza in lingua
italiana). Prenuptial Agreements in
Contemplation of Divorce (Presentation in English). Eheverträge anlässlich der Scheidung
nach deutschem Recht (Bericht auf Deutsch), Para. 9-11, http://giacomooberto.com/Bozen2012/traccia.htm#para9.
[18] See Hegel, Grundlinien der Philosophie des Rechts, Leipzig, 1930, 147.
[19] see BGH 27.9.1995, http://giacomooberto.com/prenuptial/bgh_27_9_1995.htm.
[20] BGH 19.12.1989, FamRZ 1990, 372; see also BGH
2.10.1996, http://giacomooberto.com/prenuptial/bgh_2_10_1996.
[21] Oberto, I contratti della crisi coniugale, I,
Milano, 1999 (presentation of the book available in http://giacomooberto.com/crisi/indice.htm).
[22] “III.
Nachehelicher Unterhalt
1.
Der Ehemann verzichtet
gegenüber seiner Ehefrau vollständig auf die Gewährung nachehelichen Unterhalts
(auch für den Fall der Not).
2.
Für den Unterhaltsanspruch
der Ehefrau verbleibt es bei der gesetzlichen Regelung, jedoch mit folgenden
Maßgaben:
a) Der Anspruch auf
Unterhalt wird auf höchstens ... DM monatlich begrenzt. Die Ehefrau verzichtet
auf einen etwa weitergehenden Unterhaltsanspruch.
b) Die Ehefrau ist
verpflichtet, die zu einem Steuervorteil für ihren Ehemann erforderlichen
Erklärungen abzugeben, wenn ihr die hieraus entstehenden Nachteile ersetzt
werden. Der obige Höchstbetrag ist also immer als Nettobetrag zu verstehen.
c) Der Höchstbetrag ist
nach den heutigen Lebenshaltungskosten festgelegt. Wir vereinbaren deshalb,
daß der Höchstbetrag noch oben oder nach unten im gleichen prozentualen
Verhältnis verändert, wie sich der von statistischen Bundesamt festgestellte
Preisindex für die Lebenshaltung aller privaten Haushalte nach oben oder unten
verändert. Die erste Anpassung erfolgt nach Rechtskraft der Ehescheidung durch
Vergleich des für den Monat des Vertragsschlusses festgestellten Preisindex
mit dem dann festgestellten Preisindex. Jede weitere Anpassung erfolgt dann jeweils
für den Januar eines Jahres.
d) Durch die Vereinbarung
einer Höchstgrenze bleiben die gesetzlichen Vorschriften über den nachehelichen
Unterhalt im übrigen unberührt.” (Ehevertrag template model provided by
Notary Dr. Reimann: see Oberto, I contratti della crisi coniugale, I,
Milano, 1999, 540).
[23] “III.
Nachehelicher Unterhalt
1.
Für den Fall der Scheidung der von uns beabsichtigten Ehe vereinbaren wir
in Bezug auf den nachehelichen Unterhalt:
a) Der Unterhaltsanspruch wird insgesamt ausgeschlossen, wenn die Ehe
nicht länger als fünf Jahre Bestand hatte.
b) Dieser Ausschluß gilt jedoch nicht, wenn und soweit der
Unterhaltstatbestand des § 1570 BGB (Pflege oder Erziehung eines
gemeinschaftlichen Kindes) vorliegt.
c) Im übrigen verbleibt es bei den gesetzlichen Bestimmungen.
2.
Der Unterhaltsanspruch wird, sofern er gemäß den vorstehenden
Vereinbarungen besteht, der Höhe nach wie folgt begrenzt:
a) Für den Eheteil, der ein gemeinschaftliches Kind betreut, beträgt der
Unterhaltsanspruch höchstens pro Monat DM 1.800,--.
b) In allen anderen Fällen, in denen ein Unterhaltsanspruch kraft Gesetzes
nach Maßgabe der vorstehend vorgenommenen Beschränkungen besteht, beträgt der
Unterhaltsanspruch die Hälfte des vorgenannten Betrages.
c) Tritt eine Änderung in der Höhe des Lebensbedarfs infolge der
allgemeinen wirtschaftlichen Verhältnisse ein, so ist der genannte Betrag
entsprechend zu ändern. Er soll sich dabei im gleichen Prozentverhältnis
erhöhen oder vermindern, in dem sich der vom Statistischen Bundesamt
festgestellte durchschnittliche jährliche Preisindex für die Gesamtlebenshaltung
aller privaten Haushalte – berechnet auf der Basis 1980 = 100 – im Vergleich zu
demselben Index für den Monat des Vertragsabschlusses erhöht oder vermindert.
Die Neufestsetzung findet jeweils im April eines Kalenderjahres statt, wobei
dann jeweils der Index für das vergangene Kalenderjahr mit dem Index für den
Monat des Vertragsabschlusses verglichen wird.
Die Beträge gelten in ihrer veränderten Höhe jeweils vom ersten Januar an
als geschuldet, der dem Monat der planmäßigen Neufeststellung vorangegangen
ist. Bei einer Umstellung auf eine neue Indexbasis gilt die neue Indexreihe von
ihrer amtlichen Veröffentlichung an.
Die Vertragsteile beantragen die Genehmigung dieser
Wertsicherungsvereinbarung gemäß § 3 des Währungsgesetzes durch die
Landeszentralbank.
d) Die Anwendung der Vorschrift des
323 ZPO wird im übrigen ausgeschlossen.
3.
Für den Fall, daß ein Unterhaltsanspruch nach den vorstehenden Vereinbarungen besteht, gelten im übrigen die gesetzlichen Bestimmungen.” (Ehevertrag template model provided by Notary Dr. Reimann: see Oberto, I contratti della crisi coniugale, I, Milano, 1999, 541).
[24] “IV.
Erbrechtliche Regelungen
Die Vertragsteile verzichten hiermit gegenseitig auf Pflichtteils‑
und Pflichtteilsergänzungsansprüche, die ihnen beim Ableben des jeweils anderen
Eheteils zustehen könnten. Der Verzicht ist jedoch gegenständlich beschränkt
und bezieht sich nur auf
a) das jeweilige voreheliche Vermögen der Vertragsteile,
b) dasjenige Vermögen, daß ein Vertragsteil während der Ehe durch
Erbschaft, Schenkung oder vorweggenommene Erbfolge erhält,
c) die Surrogate der vorgenannten Gegenstände.
Der vorstehend erklärte Verzicht der Ehefrau gilt aber nur für den Fall
abgegeben, daß durch ihn ein gemeinsamer Abkömmling der Vertragsteile
begünstigt wird.
Der vorstehend erklärte Verzicht gilt nur für den Fall als abgegeben, daß durch ihn ein gemeinsamer Abkömmling der Vertragsteile, die Eltern der Ehefrau oder deren Geschwister begünstigt werden. Im letztgenannten Fall ‑Begünstigung der Eltern bzw. der Geschwister der Ehefrau durch den Pflichtteilsverzicht‑ gilt der Verzicht auch nur als abgegeben, wenn dem Ehemann, solange er nicht wieder verheiratet ist, ein unentgeltlicher Nießbrauch an dem Hause ... in ... eingeräumt wird, das die Ehefrau von ihren Eltern übergeben erhalten hat.” (Ehevertrag template model provided by Notary Dr. Reimann: see Oberto, I contratti della crisi coniugale, Milano, I, 1999, 545).
[25] BVerfG 6.2.2001, https://www.bundesverfassungsgericht.de/entscheidungen/rs20010206_1bvr001292.html.
[26] BGH 11.2.2004, http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&sid=d45ce16fe9b926a5ab4635a5807d5aa6&nr=28453&pos=14&anz=15.
[27] See
on this Oberto, La comunione legale tra coniugi, I, 385;
Id., Contratti prematrimoniali e accordi preventivi sulla crisi coniugale, Famiglia e diritto, 2012, 69, spec. footnotes 42-47.
[28] See http://villardcornec.files.wordpress.com/2010/05/article-cornec-bull-family-law.pdf;
http://villardcornec.wordpress.com/tag/enforcement-of-foreign-judgments.
[29] Oberto, Contratti prematrimoniali e accordi
preventivi sulla crisi coniugale, http://giacomooberto.com/pollenzo2011/Oberto_Contratti_Prematrimoniali_e_Accordi_Preventivi.htm.
[30] Trib. Torino, 20 aprile 2012, Famiglia e diritto, 2012, 803.
[31] Cass.,
3 maggio 1984, n. 2682, Rivista di
diritto internazionale privato e processuale, 1985, 579; Il diritto di famiglia e delle persone,
1984, 521: “L’accordo, rivolto a regolamentare, in previsione di futuro
divorzio, i rapporti patrimoniali fra coniugi, che sia stato stipulato fra
cittadini stranieri (nella specie, statunitensi) sposati all’estero e residenti
in Italia, e che risulti valido secondo la legge nazionale dei medesimi
(applicabile ai sensi degli artt. 19 e 20 delle disposizioni sulla legge in
generale), è operante in Italia, senza necessità di omologazione o recepimento
delle sue clausole in un provvedimento giurisdizionale, tenuto conto che
l’ordine pubblico, posto dall’art. 31 delle citate disposizioni come limite
all’efficacia delle convenzioni fra stranieri, riguarda l’ordine pubblico
cosiddetto internazionale, e che in tale nozione non può essere incluso il
principio dell’ordinamento italiano, circa l’invalidità di un accordo di tipo
preventivo fra i coniugi sui rapporti patrimoniali successivi al divorzio, il
quale attiene all’ordine pubblico interno e trova conseguente applicazione solo
per il matrimonio celebrato secondo l’ordinamento italiano e fra cittadini
italiani.”
[32] Cass., 21 dicembre 2012, n. 23713, http://giacomooberto.com/cass_n_23713_2012.htm.
[33] Cass., 21 agosto 2013, n. 19304: “l’inderogabilità
dei diritti e dei doveri che scaturiscono dal matrimonio non viene meno per il
fatto che uno dei coniugi, avendo ricevuto un prestito dall’altro, si impegni a
restituirlo per il caso della separazione. Che poi l’esistenza di un simile
accordo si possa tradurre in una pressione psicologica sul coniuge debitore al
fine di scoraggiarne la libertà di scelta per la separazione è questione che
nel caso specifico non ha trovato alcun riscontro probatorio; e che comunque,
ove pure sussistesse, non si tradurrebbe di per sé nella nullità di un
contratto come quello in esame.”