This article explores the interrelation between the availability of no-fault divorce and the enforceability of premarital contracts, exemplified by American and German law. The traditional common law doctrines in the USA and - at least with regard to spousal support - the German civil code of 1900 were similarly hostile towards premarital contracts. In both legal systems divorce was fault based. Conventional wisdom tells us that no-fault divorce and the enforceability of premarital contracts emerged together out of a spirit of liberalization. Yet, by reconstructing the history of both legal institutions, one may observe a more subtle interrelation. The vast majority of jurisdictions in the USA responded to the availability of no-fault divorce with the enforceability of premarital contracts, which reveals a causal relationship. In the case of Germany, it was already in 1938 when the lawmaker introduced through the Ehegesetz (Statute on Marriage) ‘irretrievable breakdown of marriage’ as grounds for divorce, and at the same time legalized premarital contracts on permanent maintenance. From today's perspective, a functional understanding of the interrelation of both legal institutions seems to be the most promising. Family law, criminal law, and tort law are in retreat as protective mechanisms against risks of opportunistic behaviour and hold-ups that may arise through the availability of no-fault divorce. Premarital contracts on the financial consequences of divorce may be apt as an instrument to protect the interests of spouses against such risks. This finding provides a sound justification for contractual freedom in this field and shows that the availability of premarital contracts should be understood as a logical corollary of the availability of no-fault divorce.
{"title":"‘So Hedge Therefore, Who Join Forever’: Understanding the Interrelation of No-Fault Divorce and Premarital Contracts","authors":"J. Franck","doi":"10.1093/lawfam/ebp009","DOIUrl":"https://doi.org/10.1093/lawfam/ebp009","url":null,"abstract":"This article explores the interrelation between the availability of no-fault divorce and the enforceability of premarital contracts, exemplified by American and German law. The traditional common law doctrines in the USA and - at least with regard to spousal support - the German civil code of 1900 were similarly hostile towards premarital contracts. In both legal systems divorce was fault based. Conventional wisdom tells us that no-fault divorce and the enforceability of premarital contracts emerged together out of a spirit of liberalization. Yet, by reconstructing the history of both legal institutions, one may observe a more subtle interrelation. The vast majority of jurisdictions in the USA responded to the availability of no-fault divorce with the enforceability of premarital contracts, which reveals a causal relationship. In the case of Germany, it was already in 1938 when the lawmaker introduced through the Ehegesetz (Statute on Marriage) ‘irretrievable breakdown of marriage’ as grounds for divorce, and at the same time legalized premarital contracts on permanent maintenance. From today's perspective, a functional understanding of the interrelation of both legal institutions seems to be the most promising. Family law, criminal law, and tort law are in retreat as protective mechanisms against risks of opportunistic behaviour and hold-ups that may arise through the availability of no-fault divorce. Premarital contracts on the financial consequences of divorce may be apt as an instrument to protect the interests of spouses against such risks. This finding provides a sound justification for contractual freedom in this field and shows that the availability of premarital contracts should be understood as a logical corollary of the availability of no-fault divorce.","PeriodicalId":448538,"journal":{"name":"OUP: International Journal of Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2009-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128872332","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
To advance debates on legal responses to parenting by gay and lesbian couples, the paper introduces reforms enacted by the legislature of Quebec, a civil law jurisdiction with a codified private law, in 2002. Quebec's pioneering regime permits two persons of the same sex to register as a child's parents from birth, not only by adoption. They may do so if they conceived the child as part of a "parental project." Moreover, a person alone may have a child via a parental project. The paper identifies the policy choices reflected in the amendments and highlights weaknesses in the drafting, instructive to policy makers in civil law or common law jurisdictions. It emphasizes the structural difficulty of amending the civil law's fundamental institution of filiation to recognize two parents of the same sex. Comparing with ad hoc judicial developments from a Canadian common law province, it underscores the potential in systematic legislative reform. Conservative scholars have resisted the new regime as an inappropriate departure from the pursuit of filiation's biological vocation. The study reveals how selectively jurists may remember the past and how swiftly they may characterize innovations relating to parentage - such as the earlier abolition of illegitimacy - as natural. The mingling of biological fact and fiction in the new regime underscores the similar blending in more traditional forms of filiation.
{"title":"‘Where the Parents are of the Same Sex’: Quebec’s Reforms to Filiation","authors":"R. Leckey","doi":"10.1093/lawfam/ebn014","DOIUrl":"https://doi.org/10.1093/lawfam/ebn014","url":null,"abstract":"To advance debates on legal responses to parenting by gay and lesbian couples, the paper introduces reforms enacted by the legislature of Quebec, a civil law jurisdiction with a codified private law, in 2002. Quebec's pioneering regime permits two persons of the same sex to register as a child's parents from birth, not only by adoption. They may do so if they conceived the child as part of a \"parental project.\" Moreover, a person alone may have a child via a parental project. The paper identifies the policy choices reflected in the amendments and highlights weaknesses in the drafting, instructive to policy makers in civil law or common law jurisdictions. It emphasizes the structural difficulty of amending the civil law's fundamental institution of filiation to recognize two parents of the same sex. Comparing with ad hoc judicial developments from a Canadian common law province, it underscores the potential in systematic legislative reform. Conservative scholars have resisted the new regime as an inappropriate departure from the pursuit of filiation's biological vocation. The study reveals how selectively jurists may remember the past and how swiftly they may characterize innovations relating to parentage - such as the earlier abolition of illegitimacy - as natural. The mingling of biological fact and fiction in the new regime underscores the similar blending in more traditional forms of filiation.","PeriodicalId":448538,"journal":{"name":"OUP: International Journal of Law","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2008-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114230234","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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