In the judgment of the Federal Supreme Court 5A_778/2018 of 23 August 2019, the Federal Supreme Court dealt with the question of whether the parties could already determine, before or during marriage, a contractual provision deviating from the law concerning maintenance for the period after a possible future divorce.
The Federal Supreme Court held that a binding regulation of post-marital maintenance in a marriage contract is in principle permissible. A divorce court must decide according to the relevant provision in the marriage contract if it is not manifestly inappropriate.
The Federal Supreme Court bases its ruling on the general freedom of contract and the fact that the law does not contain a corresponding prohibition on making a contractual commitment before or after entering into a marriage to pay a certain amount of maintenance to the other party in the event of a divorce. The Federal Supreme Court bases these considerations on relevant literature, whereby it hardly deals in detail with the counter-arguments.
With regard to the first instance, which still considered the provision in question an excessive obligation (Art. 27 CC) on the part of a party, and with regard to the second instance, which considered the agreement on the consequences of divorce to be incomplete, the Federal Supreme Court states that an anticipated contractual agreement on post-marital maintenance cannot be addressed as a whole with reference to Art. 27 CC and without examining the specific circumstances.
The judgment was subjected to a critical analysis by Thomas Geiser. He complains that it can hardly be concluded from the general contractual freedom that the marital rights and obligations are also accessible to any contractual provisions. Furthermore, he does not find it convincing that the Federal Supreme Court accepts that the parties are bound by a provision in question, even though the law requires a joint and separate hearing and the approval of the court in order for a divorce convention to be concluded. He then points out that, on the basis of the arguments of the Federal Supreme Court, it must be assumed that freedom of form must be assumed with regard to the premarital regulation of post-marital maintenance, which would be detrimental to legal certainty. Furthermore, it is pointed out that as long as the divorce proceedings are not imminent, the parties cannot seriously assess which maintenance needs will exist after the divorce. Finally, he argues that this question – admissibility of the regulation of divorce maintenance in the marriage contract before or during the marriage – must necessarily be decided by the legislature in a democratic, legitimate process and cannot be left to a court for assessment, since it is a political question of how much freedom and how much protection would be considered necessary with regard to the parties.
According to the author of this article, the result of the Federal Supreme Court concerning the admissibility of the regulation of post-marital maintenance in a marriage contract must be endorsed. First of all, the freedom of contract in this respect does not apply absolutely, but only subject to a later judicial approval, which will not be given in the case of an obviously inappropriate regulation. Moreover, in view of the high divorce rate, each (potential) spouse should be aware that it is not unrealistic for divorce consequences to occur in the near or distant future, together with post-marital maintenance arrangements, which is why the possibility of post-marital maintenance arrangements in the marriage contract (before or during marriage) creates legal certainty for the parties making use of them.
Thomas Geiser, Regulation of divorce maintenance in the marriage contract? in: Jusletter 4 November 2019
Judgment of the Federal Supreme Court 5A_778/2018 of 23 August 2019, E. 5.5; Thomas Geiser, Regulation of divorce maintenance in the marriage contract, in: Jusletter 4 November 2019, No. 7.