Agreements in European Family Law – The Findings, Theoretical Assessments and Proposals of the Commission on European Family Law (CEFL)

3.1.1 Divorce

CEFL proposes two types of divorce, divorce by mutual consent and divorce without the consent of one of the spouses. The grounds for divorce are no longer relevant.

Divorce by mutual consent is the preferred type of divorce. Consent is defined in Principle 1:4 (2) as an agreement between the spouses that their marriage should be dissolved. It is not required that spouses also agree on the consequences of the divorce. Divorce remains consensual even in the absence of such agreement.^[19] The Principles, however, incentivise agreements in connection to matters ancillary to the dissolution of the marriage.

Principle 1:5 requires a reflection period unless spouses have been factually separated for six months when divorce proceedings are initiated.^[20] The reflection period can be dispensed with if there is agreement about the consequences of the divorce and spouses have no children under the age of 16. In the absence of such agreement or if children are younger than 16, the reflection period is for three months. The reflection period is extended to six months where there are children younger than 16 and spouses cannot agree about the consequences of divorce.

An agreement about the consequences of the divorce is thus construed as facilitating access to divorce. The reflection period is not intended to serve the purpose of reconciliating spouses. Its function is to give spouses an opportunity to reach agreement.^[21]

Principle 1:6 enumerates the matters upon which spouses should reach agreement. These are, on the one hand, parental responsibility and child maintenance issues, in cases where this is relevant, and on the other hand, financial matters such as the division or reallocation of property and spousal maintenance.

Agreements need to be made in writing. Whether the agreement is or is not binding is left to national law. Principle 1:7 however requires that the competent authority should at least scrutinise the validity of the agreement.

Divorce on the basis of mutual consent did not reflect the common core of European law at the time the divorce principles were drafted.^[22] Consent played a role but the most common ground for no-fault divorce in the jurisdictions surveyed was the irretrievable breakdown of the marriage. It was only after intense debates with the Expert Group that the decision was taken to depart from the common core and advocate for two types of divorce depending on whether there is agreement to divorce or not.

Departure from the common core was justified by reference to self-determination and also practicality. In view of divorce rates in European jurisdictions, it did not seem convenient to require an investigation into the reasons for the breakdown of the marriage that also meant an intrusion into the spouse’s private sphere. Account was also taken of the fact that in practice the irretrievable breakdown was deduced from physical separation which reflected the spouses’ intention to terminate the marriage. It thus seemed more straightforward to directly admit mutual consent as a ground for divorce.

In connection to agreements about the consequences of divorce, the comparative overview showed that 12 of the 22 jurisdictions surveyed required or favoured an agreement between the spouses.^[23] A strong tendency in favour or against the necessity of spousal agreement could thus not be established. Principle 1:6 however clearly favoured agreement in order to incentivise that spouses take joint responsibility for the past and the future of their relationship.^[24]

A distinction is drawn between agreements concerning parental responsibility and maintenance towards children and agreements on financial matters. Agreements affecting children are not binding. Principle 1:7 and 1:10 provide that the decision is taken by the competent authority. This authority is required to take agreements between spouses into account, subject to two conditions, first, that the agreements are legally valid and second, that they are consistent with the child’s best interests.^[25]

The attitude towards agreements on the financial consequences of divorce for the spouses is more liberal. The crucial issue of whether agreements can be set aside was not fully addressed in the Divorce Principles. The Comparative analysis showed that there was no common core as regards scrutiny of agreements.^[26] Some legal systems viewed agreements as a mere contractual matter and put the stress on autonomy whereas others looked also into the substance of the agreement and evaluated whether they were detrimental to a spouse’s interests.

In this first set of Principles, CEFL chose a cautious approach. The Comment to Principle 1:7 highlights that a rule requiring the competent authority to scrutinise every agreement could lead to an increase in conflicts^[27] and thus frustrate consensual divorce. In view of the absence of a common core as regards scrutiny Principle 1:7 established only a minimum standard. The competent authority must at least scrutinise the validity of the agreements concerning financial matters. This entails that national law may provide a broader scrutiny that could encompass control over the content of the agreement.^[28]

3.1.2 Maintenance Between Former Spouses

Maintenance between former spouses follows the same rules regardless of the type of divorce (Principle 2:1). It is dependent on the creditor spouse having insufficient resources to meet his or her needs and the debtor spouse’s ability to satisfy those needs (Principle 2:3).

Principle 2:10 establishes that spouses should be permitted to make agreements concerning the extent, performance, duration and termination of the maintenance obligations and the possible renouncement of the claim to maintenance. The agreements should be in writing and the competent authority should at least scrutinise the validity of the agreement.

Principle 2:10 takes a very broad and liberal approach towards agreements. It even permits that spouses stipulate that no maintenance should be paid at all. The Comment, however, clarifies that the Principle does not deal with the question of whether renouncement to maintenance prevents a spouse from resorting to a competent authority at a later date.^[29]

In connection to scrutiny Principle 2:10 follows Principle 1:9. It does not impose a uniform standard but only a minimal obligation requiring the competent authority to control the validity of the agreement. The Comment explains that a uniform approach seemed inadequate in view of the gap between continental civil law and common law systems and also because the matter is connected to different possibilities of compensation under matrimonial property law or access to social security benefits.^[30]At the same time there is, however, reference to the need to prevent an unreasonable or unfair agreement from being binding between the spouses.^[31]

3.3.1 General Rights and Duties

The general rights and duties contained in Chapter I of this set of Principles apply to all marriages, irrespective of the applicable matrimonial property regime. Following the model of the regime primaire of Belgium, French and Spanish law but with a more mixed content,^[36] the general rights and duties are mandatory and cannot be set aside by agreement.

Principles 4:2 and 4:3 establish the basic principles that both spouses have equal rights and duties and that each spouse has full legal capacity and freedom to enter into legal transactions with the other spouse and third persons. Stating these two principles, which may seem self-evident, was considered important in view of the fact that European contemporary societies are pluralistic. They also lay down the foundations of the relationship between the spouses.

The general rights and duties contain Principles 4:4 dealing with the contributions to the needs of the family, 4:5 and 4:6 on the protection of the family home and household goods, 4:7 about spousal representation and 4:8 on the duty to inform. The closing Principle of this section is Principle 4:9 establishing that spouses should be free to enter agreements determining their marital property relationship.

3.3.2 Marital Property Agreements

Marital property agreements are subject to the Principles contained in Chapter II. Principle 4:10 reflects the common core of the jurisdictions surveyed. It allows spouses to choose a matrimonial property regime both before marriage is concluded and during the marriage. Marital property agreements are subject to form requirements. Principle 4:11 establishes that these agreements should be drawn up by a notary or other legal professional with comparable functions, dated and signed by both spouses. Such formal requirements also reflect the common core.

The intervention of a notary or equivalent professional ensures that the parties receive independent legal advice. Principle 4:13 outlines the obligations of the legal professional that should (a) give impartial advice to each spouse separately, (b) ensure that each spouse understands the legal consequences of the agreement and (c) ensure that both spouses freely consent to the agreement. The Principle does not require that each spouse be given independent legal advice by two different professionals. It does, however, not prevent national law from so providing.^[37] The Comment highlights that even though the Principle does not address the effects of breach of duty by the legal professional, the common position in the jurisdictions surveyed is liability to disciplinary action and possibly to compensatory damages. The agreement itself is, however, not invalidated.

Principle 4:12 requires that spouses disclose their assets and debts when entering the marital property agreement. In this respect, CEFL chose not to follow the common core but to develop the general principle establishing an information duty between spouses.^[38] Principle 4:12 is silent on the effects of non-disclosure. The Comment however points out that in those jurisdictions where disclosure is required, agreements can be set aside for non-disclosure.^[39]

Principle 4:14 tackles the effects as regards third parties. Marital property agreements are binding as against third parties if at the time of making transactions with a spouse the information was publicly documented or the third party knew of the relevant parts of the agreement. The Principle reflects the clear common core. Since registration of the marital agreement is not a universal solution, the Principle leaves it for national law to prescribe how information is publicly documented.

Principle 4:15 contains a hardship clause that departs from the common core of the legal systems surveyed. In most European jurisdictions marital property agreements have the status of binding contractual provisions that cannot be modified or set aside except on grounds of general contract law. At the time the Principles were drafted, only a few jurisdictions had special family law provisions allowing the competent authority to intervene.^[40] The exceptional hardship clause developed in Principle 4:15 follows this approach and allows the competent authority to set aside or adjust the marital property agreement in cases of exceptional hardship having regard to the circumstances when the agreement was concluded or those subsequently arising.

The Comment to Principle 4:15 justifies departure from the common core in view of the following considerations. ‘Such agreements should for several reasons be distinguished from other contracts. First, it should be taken into account that the parties are emotionally dependent on each other and trust in their relationship and its future which may lead them to disregard any negative side aspects of the agreement. Second, the influence of other family members whom the parties want to please should not be underestimated. Thirdly, these agreements are meant to be long lasting and very often do not take into account the changes that circumstances can force on the relationship, especially when it comes to issues such as childrearing and unforeseen illness of a family member, which may force one of the spouses, generally the wife, to leave the job market or to reduce gainful activity for the benefit of the family’.^[41]

The application of the hardship clause is not limited to extreme exceptional cases.^[42] It should however be applied strictly in order not to undermine the contractual status of the agreement. The competent authority should strive to respect the content of the agreement as much as possible and intervene as minimally as it can. The first choice should therefore be to set aside merely parts of the agreement.

Exceptional hardship is not defined in the Principles. The Principle does, however, require that all circumstances should be considered, those that existed when the agreement was concluded and those that arose subsequently.

3.3.3 Matrimonial Property Regimes

Chapter III proposes two matrimonial property regimes that would function as legal regimes applying if spouses have not agreed otherwise by concluding a marital agreement. As the introduction to the Principles revealed, it was not possible to merge the elements of all national systems into a single one.^[43] This was not feasible from a technical point of view since regimes differ substantially as to the basic question of whether marriage entails the creation of a separate mass of property belonging to the Community or not. Moreover, CEFL did not feel entitled to make a choice without a socio-economic research on care for children and elderly, female participation in the job market and more generally the distribution of work in the various European societies.^[44]

After careful consideration, CEFL decided to focus on two systems, a community of property system and a participation system. The national legislator should choose one or the other.^[45] A Participation system promotes the independence of spouses and is more suitable for spouses who both own property and/or are in the labour market, while a community regime promotes solidarity and is more suitable where one spouse neither owns property nor is in the labour market.

In connection to the matter discussed in this paper, several observations need to be made. First, that the two regimes proposed function as default regimes applying in the absence of a marital property agreement that could disregard them in total or in part. Spouses are free to restrict their choice of a property regime to a certain part of their assets or to exclude that their matrimonial property regime applies to specific assets or types of assets and agree that this property be non-marital. They may also conclude an agreement to change or modify their matrimonial property agreement for another.

Private autonomy also plays a role in connection to the liquidation of the regime. The Participation regime requires determination of the amount corresponding to the participation. The general rule is outlined in Principle 4:31. If one spouse’s net acquisitions exceed the value of those of the other, the latter participates in the surplus to the amount of one half. The claim is a monetary one. Spouses are, however, free to set aside or adjust the rules on the participation (Principle 4:29). Such agreements can be set aside or modified by the competent authority in cases of exceptional hardship (Principle 4:32).

Similar rules apply to the distribution of the community property. Spouses can agree to set aside or modify the general rules of division (Principle 4:55). In cases of exceptional hardship, the competent authority can set aside or adjust the agreement (Principle 4:57).

The Principles allowing agreements follow the common core of the jurisdictions surveyed,^[46] whereas the hardship clauses in connection to agreements were proposed by CEFL as the better law.^[47]

3.4.1 General Rights and Duties

The structure of this set of Principles closely resembles the Matrimonial Property Principles. Chapter II is devoted to the General Rights and Duties. The provisions therein contained are mandatory and cannot be set aside by agreement. General rights and duties comprise that both partners have equal rights and duties (Principle 5:4), that each partner should contribute to the expenses of the household according to his or her ability (Principle 5:5) as well as rules about the protection of the family home applying to the so called qualified de facto unions (Principle 5:6). The Chapter closes with Principle 5:6 establishing that partners are free to enter into agreements determining their personal, economic and property relationship (Principle 5:7). This Principle reflects the common core of the jurisdictions surveyed. As the Comment highlights agreements between partners are subject to the general limitations of contract as well as to the mandatory limitations contained in the chapter on the General rights and duties just described and those laid down in Chapter III.^[52]

3.4.2 Agreements

Chapter III deals with agreements. It contains two Principles. Principle 5:8 establishes that agreements can be made before or during the de facto union and after the partner’s separation. This Principle reflects the common core of the jurisdictions surveyed.

Principle 5:9 deals with scrutiny by the competent authority. It provides that the competent authority has the power to scrutinise the agreement. The competent authority may set aside or adjust the agreements on the grounds of general contract law or serious injustice having regard to the contents of the agreement and the circumstances when it was concluded or those subsequently arising.

Principle 5:9 combines the common core and the better law approach. The rule that the competent authority can scrutinise agreements between partners on the grounds of general contract law is clear common core. CEFL however took the view that the rules of general contract law can be insufficient to protect the weaker party and that the competent authority should be able to set side or adjust agreements creating serious injustice.^[53]

Serious injustice is less demanding than the exceptional hardship clause used in connection with marital agreements. This is justified in view of the fact that marital agreements need to be drawn up by a notary or legal professional with comparable functions. Such a formal requirement could not be laid down in this set of Principles because their scope is notably broader than the Matrimonial Property Principles and covers any aspect connected to their personal, economic and property relationship.^[54]

As explained in the Comment,^[55] the freedom to make agreements has the same function as an opt-out rule to the default system contained in the Principles. This default regime covers property and debts during the relationship (Chapter IV), separation (Chapter V) and death (Chapter VI). The last chapter (Chapter VII) deals with disputes and closes with a principle establishing that alternative means of dispute resolution should be available.