In Europe a marriage requires the consent of both parties. A marriage so concluded brings with it a default set of legal rights and duties, including rules (more or less clearly defined) on matrimonial property (matrimonial property law) and maintenance. However, the question whether and to what extent the spouses can opt out of this default system is answered quite differently in the European jurisdictions.
1. Definition and function of marital agreements
The term ‘marital agreement’ does not have a consistent meaning in Europe. Depending on the matrimonial property regime of the jurisdiction concerned, it can comprise agreements about the property relations of the spouses, present and future maintenance, pension rights and pension rights adjustment as well as, in its broadest interpretation, all other issues relating to the marriage, including the right to remain in the family home.
In the German § 1408 Bürgerliches Gesetzbuch (BGB), Ehevertrag (marital agreement or marriage contract) is defined as an agreement by the spouses concerning their matrimonial property relations, but an agreement concerning pension rights adjustments (Versorgungsausgleich) is also expressly permitted by the provision. The Danish s 21 Retsvirkningslov (Act on the legal consequences of marriage), the Norwegian s 42 Ekteskapslov (Marriage Act) and the Swedish s 3, ch 7 Äktenskapsbalk (Marriage Act) define ‘marriage agreements/contracts’ similarly.
Irrespective of the way in which the term ‘marital agreement’ is understood, these agreements are not necessarily only concluded to regulate a (potential) divorce, at least not in those jurisdictions which have a default matrimonial property regime that applies during marriage (matrimonial property law). On the contrary, in many jurisdictions the main purpose of such agreements is to regulate the relations between the spouses during marriage, namely by modifying or even completely opting out of the default matrimonial property regime.
In some cases the default matrimonial property system will be unsuited for the couple’s circumstances, and then the function of marital agreements is primarily to regulate the property and financial relations of the spouses not only for divorce but also during marriage. Often a specific motivation for a marital agreement is the protection of one of the spouses from the other’s creditors, particularly if one spouse is self-employed and incurs high financial risks. In particular, in the Romanic jurisdictions another reason for concluding a marital agreement is to put the surviving spouse in a better financial (and tax) position in case of the death of the other spouse.
Agreements concluded solely with a view to a potential or pending divorce need to be distinguished from those just described as they have a rather different function. They can be (and often are) limited to the regulation of maintenance (then commonly referred to as ‘maintenance agreements’) or pension rights adjustments, but they can comprise matrimonial property and other issues as well. If the marital agreement is concluded at a point in time when the spouses have already agreed that they will divorce and the function of the agreement is merely to regulate the financial separation and future of the spouses, these agreements are commonly referred to as ‘separation agreements’. The purpose of these agreements is to regulate the division of property, pension rights and maintenance differently from the default legal rules (or indeed an earlier marital agreement) or simply to expedite the process. ‘Marital agreements’ in a broader sense also comprise these maintenance and separation agreements.
2. General points and historical development
Historically, contracts about (prospective) spouses were much more frequent than contracts between the spouses, particularly because women in many jurisdictions for a long time did not have the full legal capacity to conclude contracts. In early Rome, the pater familias had a position of considerable authority and legal power in the family. The wife through marriage became part of the husband’s family and subject to his authority (conventio in manum). The manus-free marriage only became common much later. In the Germanic munt marriage, which was the typical form of marriage for freemen and women, a contract was concluded between clans. The person having the muntwalt over the bride or the clan in the marriage contract pledged to transfer the munt (literally: protection, authority) to the groom. In the so-called Friedel marriage, on the other hand, the marriage was concluded by the consent of the spouses and the husband did not acquire the munt over the wife.
Of course, without legal capacity marital agreements as defined above were not possible. But even in the present day, the underlying policies and the nature of marriage as understood by the respective jurisdictions have an enormous impact on the legal rules concerning marital agreements. In European laws, a strong Christian influence can still be seen, often resulting in limitation or outright rejection of marital agreements. By contrast, in Jewish or Islamic law marriage itself is considered a contract. In Islam marriage always includes the payment of a dower (mahr) by the husband to the wife either at the time of marriage or in the event of the dissolution of the marriage. The spouses may negotiate the terms of the dower with regard to content, amount and time of payment, but they may not exclude the dower. The Jewish ketubah is payable should the marriage end in divorce. Both the mahr and the ketubah have a protective function for the wife. These agreements are not only generally accepted but a (traditional religious) marriage cannot be concluded without them. But as Christian understanding of marriage is based on the principle of indissolubility, agreements contemplating the dissolution of a marriage (other than by death) were unheard of and/or traditionally did not have any legal effect in Europe. Agreeing or planning on the consequences of the end of the marriage was (and in some jurisdictions still is) seen as contrary to public policy (ordre public).
Agreements relating solely to matrimonial property have been more readily accepted in the civil law jurisdictions as in these legal systems the financial relations of the couples are governed by matrimonial property regimes (matrimonial property law), and thus the contract applied not only to the case of dissolution but during marriage as well. Hence the argument that the sole purpose of the agreement was ‘planning to fail’ did not and could not apply. Therefore such agreements in civil law countries are now generally considered binding, provided certain requirements are fulfilled. The situation in the European common law jurisdictions, which do not have a matrimonial property regime as such, is quite different. Unlike in some non-European common law jurisdictions (like most US and Canadian jurisdictions, Australia and New Zealand), marital agreements are still not (fully) binding in the European common law jurisdictions, as the jurisdiction of the court and ancillary/financial relief upon divorce cannot be contracted out of (see below).
The increase in the number of divorces in the 20th century brought with it a steady increase in private arrangements and agreements following divorce. Step by step, maintenance and separation agreements were accepted and made legally binding in most jurisdictions. For example, the German Ehegesetz (Marriage Act) 1938 in s 80(1) (2) (later s 72(2) Ehegesetz 1946) made clear that maintenance agreements (Unterhaltsvereinbarungen) were not void merely because they facilitated divorce or made it possible. However, should such an agreement be precautionary (vorsorglich, ie entered into without there being an impending divorce), then the agreement was still considered without legal effect. In some European jurisdictions this still is the case. It is usually justified by the fact that, at the point in time when such a precautionary agreement is concluded, the parties are not in a position to know what the future will bring and therefore should not be allowed to make dispositions for an unknown future. The state here takes a protective and paternalistic position and restricts the spouses’ private autonomy. Considering that for many decades in most jurisdictions a divorce could only be applied for on fault-based grounds, this was of course a consistent and logical approach. But since all jurisdictions in Europe now allow divorce on grounds other than fault, it can be questioned whether this argument still can or should apply.
3. Comparative view and current developments
Whether there is room for private autonomy of the spouses to regulate the financial aspects of their relationship or whether there are mandatory rules taking precedence over any private agreement depends on how protective and paternalistic each legal system is. Unsurprisingly, this differs greatly from jurisdiction to jurisdiction and largely depends on the policies concerning marriage and the underlying default matrimonial property regime (matrimonial property law). In addition, there are significant differences as to the formalities required (notarial deed, registration of the agreement or simple written agreement).
Nevertheless, some common trends can be discerned. In all jurisdictions, it is not only the specific rules for marriage agreements, but also the general contract law which is applicable (albeit often subsidiarily). Therefore, where there is, for example, fraud, unconscionability or mistake, the agreement can be deemed invalid or void. Furthermore, in all jurisdictions (but to differing degrees) the actual content of the agreement can be reviewed by the courts.
a) Civil law jurisdictions
In civil law jurisdictions, agreements concerning matrimonial property are, in principle, binding and enforceable, provided the required formalities have been adhered to. However, the scope of what is permitted ranges from only allowing the spouses to choose one of the exhaustively listed matrimonial regimes in an act/code to allowing them to freely decide on their property relationship. While a complete separation of property is, in most jurisdictions, possible in principle, other jurisdictions consider such a separation inequitable in cases of long marriages, eg the Nordic countries, where the courts can then amend or adapt the agreement accordingly.
Moreover, in several jurisdictions certain parts of the law of marriage (and matrimonial property) are considered mandatory, and any form of derogation is considered to be in breach of public policy (ordre public). This, for example, applies to the legal order of succession in the Romanic jurisdictions, although admittedly similar outcomes can be reached by naming a person as heir by contract (institution contractuelle) or by stipulating certain marital advantages (avantages matrimoniaux) in the marital agreement. Changing an agreement concerning matrimonial property once it has been concluded is only permissible under certain conditions in some jurisdictions, in others not at all. In the socialist jurisdictions marital agreements were not possible, but in the successor states reforms are in progress or have already been implemented.
Agreements concerning maintenance and pension rights adjustments are subject to stricter rules in almost all civil law jurisdictions, and in some cases are not even permissible. In Belgium, the Netherlands and Italy, for example, such agreements are only possible in case of a consensual divorce or in the actual divorce proceedings. In those jurisdictions where agreements about maintenance and pension rights adjustment are allowed before an actual divorce is contemplated (ie as a precautionary pre-nuptial or post-nuptial agreement), these agreements are subject to a rather strict scrutiny by the courts as, for example, in Germany (see BVerfG 6 February 2001, BVerfGE 103, 89 = FamRZ 2001, 343; BVerfG 29 March 2001, FamRZ 2001, 985; and especially BGH 11 February 2004, BGHZ 158, 81 = FamRZ 2004, 601), Switzerland and the Nordic countries.
b) Common law jurisdictions
In the European common law jurisdictions the legal situation is fundamentally different as, owing to the lack of a matrimonial property regime (matrimonial property law), there is no clear distinction between property redistribution and maintenance. The judge decides on a ‘package’ solution for ancillary/financial relief, based on his or her discretion and guided by statutory criteria and case law precedent. Hence, in principle all assets awarded can also serve to secure maintenance; therefore any agreement excluding the court’s power to redistribute assets (ie matrimonial property) would at the same time curtail the possibility to award what in continental Europe would be considered maintenance. As explained above, for maintenance, the autonomy of the parties is also more restricted in the civil law jurisdictions than in matters merely concerning derogations from the default matrimonial property regime.
In its decision of 20 October 2010, the United Kingdom Supreme Court in Radmacher v Granatino  UKSC 42 marked a radical departure from the traditional approach to marital agreements and even from the 2008 Privy Council decision in MacLeod v MacLeod  UKPC 64 decided only shortly before. While the rule established in Hyman v Hyman  AC 601 that marital agreements cannot oust the jurisdiction of the courts was confirmed, the Supreme Court held that 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’ (at 75). It was further established that only material lack of disclosure, information or advice will have an effect on these considerations. As guidance for the exercise of discretion, the Supreme Court stated that the reasonable requirements of the children of the family must not be prejudiced, but that the autonomy of the parties and particularly their desire to protect non-matrimonial property should generally be respected (at 77-79); of the three strands of fairness indentified in Miller v Miller; McFarlane v McFarlane  UKHL 24 as those underlying the rules for ancillary relief in England and Wales, namely sharing, needs and compensation, the latter two were the ones most likely to lead to a departure from marital agreements. Perhaps surprisingly to some, the English law on marital agreements therefore in effect now appears to be rather similar to the laws on the Continent.
4. European perspectives
In all European jurisdictions the freedom of spouses to conclude marital agreements is restricted in part or (as for example in England for pre-nuptial agreements) even in full, and such marital agreements may therefore not be binding or enforceable. The different social, cultural and legal conceptions of the jurisdictions manifest themselves in the restrictions imposed on the spouses’ freedom to contract, ranging from seeing marriage as an imperative moral order to be supervised by the state, to considering it a free partnership of equals in which the spouses decide about their legal and social relations.
The restrictions imposed by jurisdictions frequently serve to protect the private autonomy of the parties, namely by seeking to ensure that the weaker party is actually in a position to make a free and autonomous choice. Yet often the restrictions also massively interfere with the parties’ private autonomy, eg when they simply exclude the possibility of an agreement on a certain matter; the latter is most common for agreements concerning maintenance. But as the role and function of marriage in society changes, it must be asked whether such restrictions still fit with modern societies, or at least whether and to what extent the existing restrictions on private autonomy in marriage are still necessary.
The possibility to choose or even design the legal framework for one’s marriage and financial relations is becoming more important in an age where mobility and the number of bi-national marriages are increasing, particularly since the private international law rules of many jurisdictions are still based on the parties’ nationality or habitual residence at the time of the wedding. Recognizing the need for uniform private international law rules, the European Commission has put forward proposals for Council regulations on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (COM(2011) 126/2) and regarding the property consequences of registered partnerships (COM(2011) 127/2).
As for substantive law, suggestions to create a ‘European Marriage’ or Matrimonium Europeum, allowing the couple to opt into a European legal regime for their marriage, find more and more academic support. Proponents emphasize that such a regime could and indeed should be applied uniformly throughout Europe, making the legal relations of the couple independent of their respective nationalities or habitual residence, ensuring some degree of legal certainty and thus making it particularly suitable for high-mobility couples. The Commission on European Family Law is currently working on Principles of European Family Law relating, amongst other things, to marital agreements. On a smaller scale, in 2010 Germany and France concluded a bilateral treaty on a common optional matrimonial property regime. The regime, based on the German Zugewinngemeinschaft and the French participation aux acquêts (matrimonial property law), is open to all married couples, irrespective of the parties’ nationality or residence. The optional property regime is to be integrated into the civil codes of both France and Germany.
Robert H Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88 Yale Law Journal 950; Brigitte Lehmann, Ehevereinbarungen im 19. und 20. Jahrhundert (1990); Ingeborg Schwenzer, ‘Vertragsfreiheit im Ehevermögens- und Scheidungsfolgenrecht’ (1996) 196 AcP 88; Sibylle Hofer, Dieter Schwab and Dieter Henrich (eds), From Status to Contract—Die Bedeutung des Vertrages im europäischen Familienrecht (2005); Nina Dethloff, ‘Die Europäische Ehe’  Das Standesamt (StAZ) 253; Jens M Scherpe, ‘A Comparative View of Pre-Nuptial Agreements’  International Family Law 18; Salvatore Patti and Maria Giovanna Cubeddu, Introduzione al diritto della famiglia in Europa (2008); David Salter and others, International Pre-Nuptial and Post-Nuptial Agreements (2011); Jens M Scherpe (ed), Marital Agreements and Private Autonomy in a Comparative Perspective (2011).