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Constitutional Control Of Marital Agreements II: The FCC Affirms Its Path-Breaking Decision

Published online by Cambridge University Press:  06 March 2019

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In a grand decision handed down in February, the Bundesverfassungsgericht (Federal Constitutional Court - FCC) held that a marital agreement was unconstitutional, by which a woman resigned, in the event of an eventual divorce, any allocation for her as well as for her son. The Court concluded that the agreement violated both the constitutional provisions pertaining to the protection of the family and to that of the child. The Court upheld the law that prohibits a parent from disavowing claims to the support allocation for a dependent child, but went further in declaring that, by having been led to sign a marital agreement including the surrender of claims to financial support of such drastic degrees, the contracting woman suffered nothing less than a violation of her constitutional rights. According to the Court, this agreement constituted a violation of the rights of the child at the same time, as the bleakness of the mother's financial situation was seen by the FCC to prevent an orderly and safe upbringing of the dependent child.

Type
Research Article
Information
German Law Journal , Volume 2 , Issue 15 , 2001 , E2
Copyright
Copyright © 2001 by German Law Journal GbR 

References

See, Federal Constitutional Court, Decision of 6 February 2001, published in NEUE JURISTISCHE WOCHENSCHRIFT 2001, p. 957. See also, Federal Constitutional Court Affirms Horizontal Effect of Constitutional Rights in Private Law Relations and Voids a Marital Agreement on Constitutional Grounds, 2 GERM. L.J. 6 (April 1, 2001), www.germanlawjournal.com. See also, the overview on the jurisprudence related to family allocations by Helmut Büttner and Birgit Niepmann, in: NEUE JURISTISCHE WOCHENSCHRIFT 2001, p. 2215–2229.Google Scholar
See, the famous Handelsvertreter-case, 81 BVerfGE 242; and the Bürgschafts-case, 89 BVerfGE 214. Both decisions have brought nothing less than an outrage among numerous private lawyers, acclaim and applause from others, satisfied benevolence by many public lawyers, if any reaction. The literature is too vast to be set into a footnote. For a good overview see the notes in: Gunther Teubner, Ein Fall Struktureller Korruption. Die Familenbürgschaft in den Fängen unverträglicher Handlungslohgiken (BVerfGE 89, 214 ff.), KRITV 2000, p. 388–404; cf. Federal Constitutional Court Affirms Horizontal Effect of Constitutional Rights in Private Law Relations and Voids a Marital Agreement on Constitutional Grounds, 2 GERM. L.J. 6 (April 1, 2001), www.germanlawjournal.com Google Scholar
See, e.g., Gunther Teubner & Peer Zumbansen, Rechtsentfremdungen: Über den gesellschaftlichen Mehrwert des zwölften Kamels, ZEITSCHRIFT FÜR RECHTSSOZIOLOGIE 2000, p. 189–215 Google Scholar
Not to mention the interpretion insecurities resulting from such jurisprudence once we transcend the nation state's borders and look at a case's fate in the conflict of laws within international private law: see Klaus-Peter Berger, Formalisierte oder “schleichende” Kodifizierung des transnationalen Wirtschaftsrechts (1996), 13, explicitly quoting the FCC's Commercial Agent and Collateral Decisions.Google Scholar
Federal Constitutional Court (FCC), Third three-judge Chamber of the First Senate, Decision of 29 March, 2001, published in NEUE JURISTISCHE WOCHENSCHRIFT 2001, p. 2248.Google Scholar