The Family Law News Blog

President Biden just explained perfectly what I try to get clients to understand about negotiation.

Remarks by President Biden in Press Conference, June 16, 2021, Hôtel du Parc des Eaux-Vives, Geneva, Switzerland

... President Putin and I had a — share a unique responsibility to manage the relationship between two powerful and proud countries — a relationship that has to be stable and predictable.  And it should be able to — we should be able to cooperate where it’s in our mutual interests.
 
And where we have differences, I wanted President Putin to understand why I say what I say and why I do what I do, and how we’ll respond to specific kinds of actions that harm America’s interests.
 
Now, I told President Putin my agenda is not against Russia or anyone else; it’s for the American people: fighting COVID-19; rebuilding our economy; reestablishing our relationships around the world with our allies and friends; and protecting our people.  That’s my responsibility as President. 
 
I also told him that no President of the United States could keep faith with the American people if they did not speak out to defend our democratic values, to stand up for the universal rights and fundamental freedoms that all men and women have, in our view.  That’s just part of the DNA of our country. 
 
So, human rights is going to always be on the table, I told him.  It’s not about just going after Russia when they violate human rights; it’s about who we are.  How could I be the President of the United States of America and not speak out against the violation of human rights?
 
I told him that, unlike other countries, including Russia, we’re uniquely a product of an idea.  You’ve heard me say this before, again and again, but I’m going to keep saying it.  What’s that idea?  We don’t derive our rights from the government; we possess them because we’re born — period.  And we yield them to a government.
 
And so, at the forum, I pointed out to him that that’s why we’re going raise our concerns about cases like Aleksey Navalny.  I made it clear to President Putin that we’ll continue to raise issues of fundamental human rights because that’s what we are, that’s who we are.  The idea is: “We hold these truths self-evident that all men and women…”  We haven’t lived up to it completely, but we’ve always widened the arc of commitment and included more and more people.
 
And I raised the case of two wrongfully imprisoned American citizens: Paul Whelan and Trevor Reed.
 
I also raised the ability of Radio Free Europe and Radio Liberty to operate, and the importance of a free press and freedom of speech.
 
I made it clear that we will not tolerate attempts to violate our democratic sovereignty or destabilize our democratic elections, and we would respond.
 
The bottom line is, I told President Putin that we need to have some basic rules of the road that we can all abide by.

I also said there are areas where there’s a mutual interest for us to cooperate, for our people — Russian and American people — but also for the benefit of the world and the security of the world.  One of those areas is strategic stability. 
 
You asked me many times what was I going to discuss with Putin.  Before I came, I told you I only negotiate with the individual.  And now I can tell you what I was intending to do all along, and that is to discuss and raise the issue of strategic stability and try to set up a mechanism whereby we dealt with it.
 . . . 

 I talked about the proposition that certain critical infrastructure should be off limits to attack — period — by cyber or any other means.  I gave them a list, if I’m not mistaken — I don’t have it in front of me — 16 specific entities; 16 defined as critical infrastructure under U.S. policy, from the energy sector to our water systems.
 
Of course, the principle is one thing.  It has to be backed up by practice.  Responsible countries need to take action against criminals who conduct ransomware activities on their territory. 
 
So we agreed to task experts in both our — both our countries to work on specific understandings about what’s off limits and to follow up on specific cases that originate in other countries — either of our countries.
 
There is a long list of other issues we spent time on, from the urgent need to preserve and reopen the humanitarian corridors in Syria so that we can get food — just simple food and basic necessities to people who are starving to death; how to build it and how it is in the interest of both Russia and the United States to ensure that Iran — Iran — does not acquire nuclear weapons.  We agreed to work together there because it’s as much interest — Russia’s interest as ours.  And to how we can ensure the Arctic remains a region of cooperation rather than conflict.

 . . .

There are also areas that are more challenging.  I communicated the United States’ unwavering commitment to the sovereignty and territorial integrity of Ukraine. 

. . .

 It was important to meet in person so there can be no mistake about or misrepresentations about what I wanted to communicate. 
 
I did what I came to do: Number one, identify areas of practical work our two countries can do to advance our mutual interests and also benefit the world.
 
Two, communicate directly — directly — that the United States will respond to actions that impair our vital interests or those of our allies.
 
And three, to clearly lay out our country’s priorities and our values so he heard it straight from me. 

. . . 

We’ll find out within the next six months to a year whether or not we actually have a strategic dialogue that matters.  We’ll find out whether we work to deal with everything from release of people in Russian prisons or not.  We’ll find out whether we have a cybersecurity arrangement that begins to bring some order. 
 
Because, look, the countries that most are likely to be damaged — failure to do that — are the major countries.  For example, when I talked about the pipeline that cyber hit for $5 million — that ransomware hit in the United States, I looked at him and I said, “Well, how would you feel if ransomware took on the pipelines from your oil fields?”  He said it would matter.
 
This is not about just our self-interest; it’s about a mutual self-interest.
 . . . 

Look, guys, I know we make foreign policy out to be this great, great skill that somehow is, sort of, like a secret code.   All foreign policy is, is a logical extension of personal relationships.  It’s the way human nature functions. 
 
And understand, when you run a country that does not abide by international norms, and yet you need those international norms to be somehow managed so that you can participate in the benefits that flow from them, it hurts you. 

. . .

I pointed out to him that we have significant cyber capability.  And he knows it.  He doesn’t know exactly what it is, but it’s significant.  And if, in fact, they violate these basic norms, we will respond with cyber.  He knows.

. . .

This is not a ‘kumbaya’ moment, as you used to say back in the ’60s in the United States, like, ‘Let’s hug and love each other.’  But it’s clearly not in anybody’s interest — your country’s or mine — for us to be in a situation where we’re in a new Cold War.”  And I truly believe he thinks that — he understands that. 
 
But that does not mean he’s ready to, quote, figuratively speaking, “lay down his arms,” and say, “Come on.”  He still, I believe, is concerned about being, quote, “encircled.”  He still is concerned that we, in fact, are looking to take him down, et cetera.  He still has those concerns, but I don’t think they are the driving force as to the kind of relationship he’s looking for with the United States. 

. . .

What is going to happen next is we’re going to be able to look back — look ahead in three to six months, and say, “Did the things we agreed to sit down and try to work out, did it work?  Do we — are we closer to a major strategic stability talks and progress?  Are we further along in terms of…” — and go down the line.  That’s going to be the test.
 
I’m not sitting here saying because the President and I agreed that we would do these things, that all of a sudden, it’s going to work.  I’m not saying that.  What I’m saying is I think there’s a genuine prospect to significantly improve relations between our two countries without us giving up a single, solitary thing based on principle and/or values. 
 . . .

Look, this is not about trust; this is about self-interest and verification of self-interest.  That’s what it’s about.  So, I — virtually almost — almost anyone that I would work out an agreement with that affected the American people’s interests, I don’t say, “Well, I trust you.  No problem.”  Let’s see what happens. 
 
You know, as that old expression goes, “The proof of the pudding is in the eating.”  We’re going to know shortly. 
 . . .

Let’s get something straight.  We know each other well; we’re not old friends.  It’s just pure business.

. . .

I’m not confident he’ll change his behavior.  ...  What will change their behavior is if the rest of world reacts to them and it diminishes their standing in the world. ...  If you don’t understand that, you’re in the wrong business.
 

Using marital contracts to stabilize marriages: past, present, and possible

 Über ehestablisierende Rechtstechniken

On Marriage-Stabilizing Legal Techniques

 

by Prof. Dr. Hans Hattenhauer

 Christian-Albrechts-Universitaet zu Kiel,
Christian-Albrechts-University, City of Kiel

Zeitschrift fuer das gesamte Familienrecht (FamZ) 1989, page 225 et. seq.

Summary and Explanation by Antje S. Heinemann, J.D., with assistance by John Crouch, J.D., and Susan Winston, J.D. candidate, University of Miami School of Law

 

In this article Prof. Hattenhauer deals with the need to stabilize marriages and the legal instruments and techniques to do so.

As marriage is a lifelong relationship it is always endangered by its duration. Because of the changes of various circumstances such as society, the spouses’ financial situation and economic development/expansion etc., marriage has lost a lot of its functions and is therefore today even more deemed to be only a short-term rather than a long-term “operation”.

But how have humans in history of mankind been able to make marriages work as a long-term relationship and make this long-term relationship an ideal of a marriage? Knowing that trust of only biological/emotional forces and the spouses’ good will are not enough to make a marriage a “long-term operation”, former cultures have stabilized it with various techniques.

As Hattenhauer states that there is up to now hardly no fundamental scientific research on this issue, he limits his point of view in his article to marriage-stabilizing legal techniques. This makes him first think of some very general questions such as: What is society’s moral understanding and what is universally valid? What is the general social consensus that courts must respect? At what point is the jurisdiction exceeding its authority when it determines what the ideal of marriage?

To find answers he works with various theses:

Thesis 1:

Marriage is the foundation of family. Family is based on marriage and – at best – includes children. In contrast to this, any other model of a “family” such as homosexual cohabitation, a commune or heterosexual cohabitation without being married is not legally binding and it can therefore not achieve the same privileges as a marriage.

Thesis 2:

Marriage is an “enterprise for maintenance”. As society has changed into an industrial society and the welfare state has been established, marriage has lost a lot of its maintenance character and functions. However, it has never totally ceased to be an “enterprise for maintenance”, which is shown by the unbroken importance of support payments. This support for spouses and children will never be completely replaced by government.

Thesis 3:

In addition to this financial “maintenance”, marriages also give enormous personal and emotional support. This support is not replaceable at all. Today, this support is even more appreciated than ever before.

Thesis 4:

Up to now the maintenance character of marriage (both financial and emotional) has been obvious. After the long-term period of upbringing the children the period of growing old usually began. The parents then needed support and care-taking themselves.

But increased life expectancy, both parents’ working, and the social security system have created a completely new period between these two periods. During this phase the spouses are usually not aware of their mutual maintenance obligations and therefore the duration of marriage is weakened. As also sexual morality has changed, marriage has furthermore lost a lot of its sexual maintenance character.

Thesis 5:

The ecclesiastical sacrament of marriage has been replaced by the civil marriage. Today, marriage is legally understood as a contract.

Thesis 6:

Although we see today all these changes to the maintenance character of a marriage, there is still a huge private interest for stability in marriages. It is important for governmental authorities to assure a process of stabilization, as stable marriages ensure the people’s life quality.

Thesis 7:

People entering a marriage often have to make sacrifices such as giving up parts of their personal freedom or privacy. As some kind of compensation the state is giving them married privileges and protection by law. Art. 6 GG, (i.e. Grundgesetz, the German constitution) for example, protects family and marriage. To give the same bonuses to other, less legally binding, types of relationships won’t be justified. These bonuses are such as, but are not limited to, support, inheritance, child custody, and in case of dissolution of marriage, a system to solve conflicts as the law determines alimony, support, division of pension rights etc.

Thesis 8:

As, because of the great public interest in long-term marriages, smart states have developed certain marriage-stabilizing policies, they have laid down marriage and family in the constitution.

Thesis 9:

The history of occidental marriage has been the history of the privatization of marriage. Marriage has become more and more a subject of the couple’s dispositions. Today spouses can determine nearly everything regarding their marital relationship. Since spouses can do so, such agreements, their compliance and their enforcement, need protection by the government.

Thesis 10:

The process of privatization is neither irreversible nor deplorable. Privatization is justified as an act of liberation from governmental constraints.

Thesis 11:

After the breakdown of the middle-class model of marriage (after 1968) as the “moral monopoly,” we find today a pluralism of ideals of marriage. The question today is: What kind of law do we need in times of pluralism, which does justice to all models and groups? What kind of law does not impose too much stabilization to the ones not interested, and does not refuse to give stability to the ones who ask for it? How can the government take care of marriages and create a law that meets all interests? How does a catalog of acknowledged ideals of marriages look like?

In the history of marriage, the non-formal (regarding the entering and dissolution of marriage) Roman marriage, the “matrimonium liberum”, has been surprisingly durable. Alfred Soellner has stated that the reason for this stability was the use of a certain legal technique: the dowry, the “dos”. The dowry was the father-in-law’s contribution to the husband in a considerable amount of money to give the marriage a binding character. The marriage and the financial contribution were strictly connected. Conversely, only an endowed marriage was acknowledged as a valid marriage. A marriage without dowry instead was regarded as void.

The dowry was highly important to wives. It was so important that the father-in-law sometimes had to impose it on the husband. The financial contribution was also a matter of the wife’s reputation. A woman who was not endowed was contemptuous. If the family was poor, the daughter sometimes had to go to the brothel.

The purpose of the dowry was to stabilize the marriage: The profits made out of the financial contribution were used to maintain the family, especially during the first years. The ongoing sanctions in case of conflicts guaranteed the existence of the marriage. Both spouses had to take care of the marriage to be entitled to the benefits of the financial contribution. In case of adultery or filing a divorce, e.g., the wife lost all her entitlements for the return of the contribution in total. If the husband wanted to commit adultery or wanted to get divorced he had to be afraid of losing the dowry, which helped to keep him from doing so. It was also possible for the wife to determine a contractual penalty for the husband, which he had to pay if he had a concubine. In general one could say: He who wanted to give his wife back had to give the contribution back.

According to Hattenhauer this was the reason why marriages without dowry had always been more endangered by divorce than others, and why the Romans preferred marriages within one’s station. A poor wife could be easily rejected but in case of a high dowry the rejection always meant a bad loss. On the other hand, a marriage with a high dowry was sometimes quite difficult to handle for a poor husband, because then he had to endure the moods of his rich wife. Thus, the Romans found the ideal marriage where there was a dowry and the financial background had been equal.

 Hattenhauer then describes the marriage in the rabbinical-talmudical law and states that it was quite similar to the Roman model: Without a trousseau a woman was not allowed to marry. If necessary the money was taken from the community’s funds for the poor. In addition to that, there was also the dowry (which could be in property or money). The dowry always continued to be the property of the wife but was administrated by her husband, who often had a right of usufruct of it. The couples necessarily had to settle upon a marital agreement. Beside certain other agreements the spouses agreed about the “Ketubah”, which was the sometimes considerably high amount of money the husband had to pay in case of the dissolution of marriage (divorce or death). The amount had to be in accordance with a minimum sum and depended on the amount of the dowry. A marriage without a “Ketubah” was not completely valid and considered as a concubinage.

 Hattenhauer states that both dowry and “Ketubah” stabilized marriages. As the capital stock usually was invested in the husband’s enterprises, his cravings for divorce were reasonably minimized. On the other hand a mean wife, whose “Ketubah” had been high enough, could sometimes leave the husband desperate. To explain this dilemma Hattenhauer cites the case of Rabbi Nachman: He couldn’t get divorced from his mean wife because the “Ketubah” was too high, but his disciples finally collected the money to pay him off and gave him freedom.

The purpose of the “Ketubah” to stabilize marriages was clear: The rabbis created the “Ketubah” to make it more difficult for the husband to leave his wife.

Hattenhauer then examines the German model and states that the German law did not adopt the Roman model schematic. In the 17^th – 19^th century it was held that the common marital agreements in Germany didn’t comply with the narrow frame of the Roman “pacta dotalia” because they were not limited only to financial transactions. Up to the effective date of the BGB, (Bürgerliches Gesetzbuch, i.e. Civil Code), January 1900, the Germans and Europeans practiced marriage-stabilizing by using various kinds of marital agreements. They had various names, varieties, and a high practical importance. They had such names as pactum dotale, pactum nuptiale, Ehepakt, Ehegedinge, Ehestiftung, Eheberedung, and Brautlaufbrief.

A marital agreement was defined as any legal transaction that determines rights and obligations of spouses. The essence of those agreements was that there were personal and financial agreements at the same time. However, the financial settlements – the agreement about the husband’s or wife’s financial contribution to the marriage – predominated. Being an important financial source for the maintenance of the family, the assets were important to stabilize marriages. The husband administrated the estate and was liable for its continued existence. In these marital agreements the spouses could also agree about the husband making a contribution to the wife in return, or a security payment for the dowry.

Those types of marital agreements were not only settled between rustic, but also aristocratic, spouses.

Beside the above mentioned possible settlements the German marital agreement in these times above all also contained agreements about inheritance (wills or any other kind of inheritance transactions). The spouses, e.g., agreed about the future of financial contributions, reciprocal assigning, and provision for children. The husband also often agreed that his heirs had to support his wife after his death. Thus, marital agreements and agreements about inheritance went hand in hand. The variety of such agreements was enormous, especially in the area of non-codified law, where spouses had creative scope.

The personal decisions in marital agreement included mainly decisions about parenting, religion or an agreement about the place of residence. The custody often was transferred completely to the wife. The spouses also settled agreements about support and education of the children in case of their divorce or agreed about contractual penalties if for example one of them refused the performance of matrimony.

 Hattenhauer states that there are good grounds to consider the German model as a Christian model. In comparison between the Roman and Jewish model on one side and the Christian model on the other side you will find that the most important difference is that the church never stabilized marriages by using financial transactions. As the Christian model of marriage, the holy sacrament, can never be dissolved, and assets were not necessary to enter one, this model didn’t need financial transactions. In addition to that, social classes were not important at all, and even poor people or slaves could enter a marriage.

According to the Roman model the limits of contractual freedom only were the compulsory law and morality. The various effective laws in former times gave the spouses different kinds of creative freedom. The “Preussische Allgemeine Landrecht” from 1794 hardly contained hardly any regulation about marital agreements, but regulated everything regarding the marriage itself. The “Saechsische Buergerliche Gesetzbuch” from 1863/1865 regulated everything in great detail.

All those regulations described as what is today known as the principle of morality, § 138 BGB (Buergerliches Gesetzbuch, the German Civil Code). According to the institutional character of a marriage as an ideal in the 19^th century, a marriage rather was a moral than a legal phenomenon. Morality was then the most important limit on the freedom of contracts. In those times it was therefore determined in a very detailed manner what kind of agreements were void because of immorality: any agreement in which the spouses:

- assigned the wife to the husband’s power

- waived matrimony, sexual intercourse and joint residency

- waived the obligation of reciprocal care-taking

- excluded any litigation regarding marriages

- took away the husband’s benefits from the wife’s financial contribution such as the dowry

- adjourned the maturity to make the dowry to a date after the dissolution of this marriage

- conceded the other spouse the right of adultery or criminal behaviour

- limited the husband’s liability to administrate the wife’s dowry

An agreement was also void when it deprived the surviving wife of her property and gave it to the husband’s relatives after his death. In those times, people nonetheless believed that the above-listed limits gave the spouses enough contractual freedom.

According to Hattenhauer the end of this type of marital agreements came with the creation and effective date of the BGB (Buergerliches Gesetzbuch, i.e. the German Civil Code) in January 1900. From that time on, a marital agreement was defined as a contract which only determines the system of marital property. It did not determine any other kind of financial or personal matters. The 1901 book of annotations, Planckscher Kommentar, stated that a marital agreement is a contract used by spouses to determine their system of marital property. On the negative side you can not understand it as a contract which determines personal matters such as the wife’s obligation to follow her husband or the decisions about parenting, etc. Whether such agreements are valid and can be enforced depends on their accordance with the nature of marriage and morality. However, such agreement is not a marital agreement pursuant to § 1432 BGB.

From that time on, people didn’t acknowledge agreements about any personal matters anymore, even if they had done so in a tradition of hundreds of years. According to Hattenhauer the annotation shows the skeptical understanding of the validity of such contracts very clearly, because it points out the fact that such contracts had to be in accordance with the nature of a marriage. Because the BGB was understood as defining the nature of marriage in those times, consequently every agreement about personal matters was void, because it differed from the model described in the BGB.

The annotation to the first draft of the BGB had the same understanding:

“The draft acknowledges the principle of contractual freedom. However, it also points out the limits of contractual freedom. An agreement can only be valid as long as is not in contradiction to the nature of marriage. Agreements about the regulations regarding the marital status of spouses such as e.g. their legal relationship are void in general because those regulations are the necessary essence of marital relationships.”

By citing Art. 199 EGBGB (Einfuehrungsgesetz zum BGB, the Introduction Act to the BGB) Hattenhauer reaches the conclusion that the German law in those times didn’t favor such marital agreements anymore:

“The personal relations between spouses, especially their obligation to pay support, are determined by the regulations of the BGB, even if they concern a marriage before the effective date of BGB.”

Hattenhauer believes that the purpose of this was to eliminate agreements regarding personal matters in general. In his opinion, therefore, The Marital Agreement by Albert von Baldigands (1906) was a fundamental book which pointed out that such agreements are no longer marital agreements.

Regarding this new legal understanding of marital agreements Hattenhauer cites two cases:

In 1900 a court had to decide about an agreement in which the husband agreed to have his place of residence at the wife’s land property, and promised to cultivate the land. The wife sued the husband, and the court held that she had no right to demand performance of the agreement, because only the husband had the right to decide about the place of residency (pursuant to § 1354 BGB). It was also held that even if the agreement had been valid until the effective date of the BGB, it had become void.

In 1905 the courts had to decide again about a marital agreement made before the effective date of the BGB. In this case the husband had waived his right to administrate the wife’s estate, and had waived his right to use it. In consideration of this, the wife had waived her right to receive support from her husband. The court held that a contractual waiver regarding support is void and that it did not make a difference if the wife’s waiver was made freely or not.

From that time on it was case law, and the annotations stated, that all agreements about personal matters were void. They were not in accordance with the nature of marriage.

Hattenhauer says that one reason for this change in opinion about marital agreements and the mistrust against them might lie in the effort to create a uniform/homogeneous family and inheritance law. He argues that the authors of the BGB were proud that they had limited the former variety of 100 systems of marital property to only five. He therefore reaches the conclusion that it was only reasonable that nobody wanted to destroy this success and give the spouses their contractual freedom back.

The authors of the BGB were also convinced that they had created marriage as a “timeless and exhaustive institution,” and that they had created a truly moral model of marriage with equal rights for wife and husband by upholding the traditional roles. This middle class model of marriage was regarded as exclusive. As marriage and family were the cornerstones of the middle class, Hattenhauer believes that this was the reason why the middle class didn’t want to make any concessions for the benefit of the spouses’ individual liberty, and the demand for contractual freedom only led to mistrust.

However, in this new model of marriage the husband still had to be afraid of losing assets by leaving his wife. The new system was still able to stabilize a marriage because of the continued existence of a very traditional social order and the principle of marrying within one’s station.

Hattenhauer believes that this legislation would have been useless if the people’s understanding of marital obligations of spouses had not been generally shared. He also believes that the model was secured by society’s morality. He states that even socialists had the same opinion about sexuality, marriage, family etc. in those times. So he reaches the conclusion that the general moral understanding helped to make the courts find every agreement differing from the BGB void because of immorality.

According to Hattenhauer the acknowledgement of this model of marriage was also supported by society’s unbroken trust in their assets. It was e.g. not immoral if the fathers-in-law sat down and started calculating the amount of the assets while the spouses just enjoyed their love. But only after two decades, in the 1920s, the trust in the assets, and the assets themselves, were melted away by inflation, so marriage-stabilizing couldn’t be achieved by financial contributions anymore. Society was forced to look for new stabilizing techniques.

Hattenhauer states that from this time on a new “asset” for a wife to bring into the marriage was a solid vocational training, as a form of social security. People believed that this asset could not melt away even in times of inflation. The fact that both spouses were working turned out to be a stabilizing factor for marriage, especially regarding its psychological balance. Besides her dowry her vocational training now gave the wife stability even if she gave up her profession to become a housewife. However, even then, stability was still achieved by society’s constraints and traditional case law.

Hattenhauer then describes the current status quo:

- marriage has lost its protection by law

- middle-class morality has lost its general prestige

- the number of divorces and the number of children of divorce who are skeptical of marriage have increased

- the model of an “emancipatory marriage” has replaced the middle-class model of marriage

- the stabilizing legal techniques such as “Zugewinn- and Versorgungsausgleich” (equitable distribution including property and pensions) can be abolished by marital agreements

- the loss of faith and trust in marriage made the concubinage more attractive

- the loss of the husband’s responsibility for the wife’s social security (because of her ability to work) has increased the marriage-age of wives, reduced the number of children born into the marriage, and increased the number of disabled children.

According to Hattenhauer the traditional middle-class model of marriage has no binding character anymore and the “emancipatory model” of marriage is a fad without a function. He believes that this pluralism of models cannot be resolved by giving one of them priority, and that the role of the law is reduced to setting only the frameworks for what might be binding and what might not.

Today, there are various answers regarding the question of what is legally binding, or what is the nature of marriage and therefore is protected by the Code’s principle of morality (§ 138 BGB). Prof. Gernhuber, e.g., names various principles which he thinks are binding:

“[1] The principle to be free to enter a marriage, [2] that spouses make a contract by entering a marriage, [3] the principle of monogamy, [4] that marriage can only be between a woman and a man, [5] the spouses’ obligation to live in matrimony, [6]  that marriage can only be dissolved by death.”

Hattenhauer asks what kind of legal techniques we need in our changed society today, if we see those principles as binding? As the traditional pre-1900 marital agreement, varying the standard obligations of marriage, is back and practiced again, he believes that it can be used as a stabilizing legal technique. The determination of personal and financial matters in those agreements can help to give marriages a more binding character than the law itself does. Hattenhauer states that the creation of various types of such marital agreements has already begun and will continue. Those new marital agreements still find their limits of contractual freedom in illegality (§ 134 BGB) and morality (§ 138 BGB).

Looking at spouses’ considerations as they enter a marital agreement, you will find that hardly anybody has considered it as a stabilizing factor. You will also find that people haven’t paid much attention yet to agreeing on personal matters, nor to agreeing about certain personal sanctions, in a marital agreement, in contrast to financial matters and financial sanctions. According to Hattenhauer the demand for individualized agreements and regulations is especially high. He states that personal matters included in agreements can be: the decision to have children and their raising, the decision who works and who does the household work, the place of residence, the things you do in your leisure time, holidays, relationships with relatives and in-laws, religious decisions, decisions about the procedure to solve conflicts or problems, etc. As each of his listed personal matters can cause a conflict and might destroy a marriage if it cannot be solved, he argues, spouses should agree in a marital agreement about those personal matters and should therefore also agree about sanctions to avoid conflicts and the dissolution of the marriage.

As the regulations in the BGB regarding divorce, and high costs, do not deter spouses from the decision to get divorced, Hattenhauer thinks that it might aid the stabilization of marriages if spouses could agree to limit their right to get divorced. He states that any useful suggestions on this are still missing, and people miss the mark by only agreeing about financial sanctions. Prof. Langenfeld suggested having different systems regarding the financial consequences of ending a marriage, distinguishing between ending because of divorce and ending because of death.

Even the BGH (Supreme Court) had already to decide about the use of assets for the purpose of marriage-stabilizing. A marriage entered in 1976 in a mosque in Munich between Islamic spouses included an agreement about a payment in the amount of 100.000 DM in case of getting divorced. The BGH held that the agreement is valid under the freedom of contract. Thus, it was held that agreeing about financial sanctions in case of divorce is valid. It was also held that this was not a contract about the system of marital property, and therefore it did not have to be in one specific form (such as for example under § 1410 BGB).

But no courage to make such decisions on personal matters can be found yet.  Hattenhauer asks why we go about this complicated detour by using only financial sanctions to encourage the continued existence of marriage. Don’t we exclude from the opportunity of contractual stabilizing those spouses who don’t have considerable assets to lose? Why isn’t it possible to let all couples stabilize their marriages by using clear and formulated clauses? He hopes that the lawyers will improve upon this opportunity.

Then he comes back to his contested thesis about the possibility to waive the right to get divorced. First of all he states six theses:

1. Agreements regarding personal matters are valid and find their limits in the general limits of privatization in civil law.
2. A limitation or waiver of the right to get divorced is valid because it is not prohibited by law nor immoral or unconstitutional.
3. Agreements about arbitration and any other models for solving conflicts are valid and legal
4. Although entering or leaving a marriage has to comply with a certain form, agreements limiting the ability to get divorced do not.
5. An agreed limit on the ability to get divorced can be revoked by agreement at any time.
6. A court should determine the immorality of an objection regarding the waiver of the right to get divorced in a trial, in which the invalidity of the agreement has to be proved by the petitioner.

The train of thought is again, for example:

Wife and husband, both Catholics, want to get married and want their religion to become legally effective (in addition to the official governmental ceremony). Using Privatization in order to express their religious beliefs, the couple creates a marital agreement that they will not get divorced. In addition the agreement states that any litigation of marital issues will be decided by means of arbitration and the arbitrator shall be an ecclesiastical judge.

If the spouses then get into conflict there are two choices: Both agree to change the marital agreement, revoke their waiver and both can move the court for a conventional divorce. That means that nobody can jump out of the marriage hastily.  If the other spouse refuses to agree about the change of the marital agreement the spouse will then move the court to decide. But the Respondent can make the objection that the court has no jurisdiction because of the agreed clause regarding arbitration. If the respondent moves to the court of arbitration, he or she will be forced to find a mediated solution. If there is no arbitrated solution the arbitrator will dismiss the motion to get divorced because of the agreed waiver. The Petitioner can appeal by citing § 1041 Nr. 2 ZPO and proving the immorality of the Respondent’s objection regarding the waiver. Finally, the way out of a marriage should never be absolutely excluded as the last solution, but the way out should be restricted. This complies with the principle of tolerance and pluralism.

It is now necessary to show what sort of model of marriage will be more successful. In open concurrence to the already existing variety of dangerous and insecure models of concubinages, we will have a variety of secure marital agreements in which the demand for stability and the waiver of the right to get divorced will find their place. It will be personal self-fulfillment instead of being kept in leading strings by the government: In dubio pro libertate! [Meaning, in all cases that are in doubt, rule in favor of freedom. In English law, stated as “in statu dubio semper erit pro libertate iudicandum”. Bracton, f. 191 b]

Martha Raye: Bigger than Henry VIII in Divorce, Marriage

Singer and actress Martha Raye, honored for her tireless work with the troops in WW2, had <a href="https://en.m.wikipedia.org/wiki/Martha_Raye">seven marriages, lasting between 4 months and 9 years and averaging 3.5 years. She had 6 weddings in 19 years, 1937-1956. After her 6th divorce in 1960,</a> she abstained from marriage, or maybe marriage abstained from her,  until 1991.  She died in 1994, at 78 years old and still married and living with her husband,  and was buried with military honors at Fort Bragg, North Carolina. 

 

Where did we get those old law books? It's quite a story. It starts when Washington was president ...

These law books have been handed down from lawyer to lawyer, including:

Richard Henry Lee, 1732-1794. Justice of the Peace, Delegate to the Virginia House of Burgesses and the Continental Congress, signer and leading proponent of the Declaration of Independence, President of the Continental Congress 1784-85. But most importantly, he did more than anyone to ensure that a Bill of Rights was added to the Constitution. He bought and inscribed some of these books for his son, Francis Lightfoot Lee II, 1782-1850.

John Janney, 1798-1872, was a Quaker, Unionist lawyer in Leesburg, Virginia. Among his many great works was the successful defense of free-born Underground Railroad conductor Leonard Grimes of Leesburg. He was almost President: in a pivotal Virginia Whig caucus, he tied with John Tyler on the first ballot for the 1840 vice-presidential nomination. Henry Clay said, “He is the first man in Virginia and has no superior in the United States.” He was a delegate to the 1851 Virginia Constitutional Convention, which tried to heal the breach between eastern and western Virginia, and President of the 1861 convention that he hoped would preserve the Union. It swung in favor of secession when Lincoln called for troops to march against the South. He then had the bitter honor of formally giving Robert E. Lee charge of Virginia’s forces.

“Squire” Lawrence Bowers, 1810-1901, was called that because he was a local magistrate in Boone’s Creek, Washington County, Tennessee. He helped found the Boone’s Creek Academy. Ralph Waldo Crouch, Sr. was his grandson.

 Matthew Harrison, 1822-1875, was a Leesburg lawyer, known in the legislature as “The Loudoun Lion”.

The Rev. Alexander Broadnax Carrington, 1834-1912, from Charlotte Court House, Va., studied at Washington College and practiced law, but then chose the Presbyterian ministry. He was chaplain of the 37^th Virginia Infantry under Stonewall Jackson. His final pastorate was at Greenwich Presbyterian Church in Nokesville, Va.

Landon C. Berkeley and James P. Harrison of Berkeley & Harrison were prominent Danville, Va. lawyers in the late 19^th Century.

E.S. Oliver, owner of our French Code Napoleon, was a New Orleans lawyer and businessman in the mid-19^th Century. He won Lavillebeuvre v. Cosgrove, about the right to reopen a boarded-up window through a common wall between two properties, under the French version of easement law, called “destination du père de famille.” He lost a case against his agent for letting a debtor pay him in Confederate money and investing it in Confederate bonds, because he didn’t complain when he heard about it, thinking he could “sit on his rights.”

Samuel Ferguson Beach, a Connecticut-born Alexandria lawyer, city councilman, and banker, lost a Northern Virginia congressional race in early 1861, then filed a challenge to election practices at Ball’s Crossroads, now Ballston. He was a leading member of the Constitutional Convention for the "Restored Government of Virginia," and unionist Northern Virginians elected him to Congress, which refused to seat him. He represented the Lee family of Arlington House, and other former Confederates, in Virginia and U.S. Supreme Court cases overturning the wartime seizure of their land. He won Colston v. Quander, upholding a Fairfax marriage that was illegal when made because it was between a slave and a free Negro. In other cases he argued for upholding a law preventing free blacks from testifying against whites, and that Congress’s return of Alexandria and present-day Arlington to Virginia was unconstitutional. He helped lead efforts to give black Virginians voting rights, and was appointed United States Attorney for Virginia. He was once co-counsel with future President James A. Garfield.

Samuel McCormick, 1849-1937, son of Justice Francis McCormick of Weehaw, briefly served in the Confederate Army, then studied law at the University of Virginia, where he owned these books, and then at Washington College, now Washington & Lee University. He was an honorary pallbearer for Robert E. Lee. He was a lawyer, farmer and businessman in Clarke County, Virginia, and was Court Clerk there from 1904 to 1912. 

Joseph J. Darlington, 1849-1920, was a leading Washington lawyer, citizen, prize pig breeder, and president of the City Orphan Asylum. He taught law at Georgetown University, and gave Ralph Waldo Crouch, Sr. a copy of his treatise on The Law of Personal Property. They were neighbors in Herndon and commuted together on the W&O.D. Railroad. A memorial to him at Judiciary Square has been criticized for its utter lack of resemblance to him.

Ralph Waldo Crouch, Sr., 1881-1968, was youngest of ten children of a Baptist preacher, and his inheritance was one horse, which he sold to buy a ticket to Washington to seek his fortune. He did a variety of jobs, including streetcar conductor, and went to school at night while raising a growing family. He graduated from Georgetown Law in 1912, and was a tax lawyer and estate-tax auditor for the U.S. Government, commuting by train from his in-laws’ farm in Herndon. He later joined Crouch & Crouch, practicing in Arlington and Richmond. In retirement he moved back to the farm his great-grandparents had settled in the late 1700s in Boone’s Creek, Tennessee.

George Edelin, 1891-1938, Georgetown Law 1918, joined Julius Peyser’s general and administrative-law practice in Washington, D.C., where his early work included U.S. Supreme Court cases. He was a law professor at the University of Maryland.

George J. Schultz, 1885-1961, earned doctorates in law, medicine and divinity, and was a law professor at the University of Maryland. He married George Edelin’s brother’s widow. After his death his law books were entrusted to her goats, in his barn in Hyattstown, Maryland, until Richard Edelin Crouch retrieved a few of them.

John Walter Edelin, Jr., 1905-1980. His naval career started on President Coolidge’s yacht, where he assisted the President in an unannounced amphibious landing at George Washington’s birthplace, to fierce combat in the Battle of Peleliu, to the military governorship of the Palau Islands.

John W. Jackson, 1905-2006, was a legendary Arlington prosecutor and lawyer. He taught trial skills at the George Washington University Law School. In semi-retirement he was still an eminence and mentor to everyone in the office suite of John Perkins, where Richard Crouch had his first full-time law office after leaving Family Law Reporter.

Howard Wade Vesey, 1906-1969, was a Washington lawyer who later moved to Santa Barbara, California where he was also a real estate developer. He died in a plane crash and his wrongful death case ascended as high as the federal Ninth Circuit Court of Appeals.

Thomas Gordon Crouch, 1910-2004. His practice with Crouch & Crouch in Arlington and Richmond emphasized tax, business, probate and estate planning law. A dedicated hunter, fisherman, sailor and Shriner. He led the funding and organization of the restoration of his great-great grandfather Jesse Crouch’s log house.

Leroy E. Batchelor, 1926-2012, served in World War II, including the Battle of Iwo Jima, and the Korean War. He was a criminal defense and general practitioner in Arlington. He represented Arlington County in a school desegregation case. He once argued before the U.S. Supreme Court. An accomplished seaman and boating instructor, he retired at 62. He and his wife spent much of the next two decades at sea.

Jack L. Melnick, 1935-2013, was an Arlington/Falls Church legislator, prosecutor, civic leader and lawyer. In the legislature, he led the effort for a crime victims’ compensation fund. He taught at George Washington University Law School. He restored and drove a Model A Ford. His probate and elder law practice continues with his son, Paul Melnick.

The Hon. W. Richard Walton, Sr., b. 1938, is a civic leader, former prosecutor and retired Common Pleas Court Judge in Ironton, Ohio.

Thomas W. Murtaugh had a general, criminal, juvenile and family-law practice in Leesburg, Virginia. He represented people from all walks of life and excelled at presenting the human reality of his cases in everyday terms. He was gentlemanly and kindly to a fault. Richard and John Crouch learned much from him. He gave us John Janney’s books when he moved to West Virginia, where he practiced occasionally but is now fully retired.

Bill Findler 1948-2007 was widely admired as an Arlington lawyer, but even more as a Washington-Lee high school track coach, pillar of the church, and father of five. When he died suddenly after a morning run, his obituary on the sports page of the Northern Virginia Sun quoted John Crouch: “He was a leader for all of us. He was strong and honest. He told it like it is. He dealt with every situation with humor and integrity.”

Bryan Garner is a leading authority on legal writing and drafting. He redrafted the Federal Rules of Civil Procedure and several similar sets of rules, edits Black’s Law Dictionary, and wrote several books on legal writing, including two coauthored with Justice Scalia. It’s a stretch to include him here, because I don’t have a book from his personal collection; he gave me a copy of his Black’s as a sort of party-favor for answering a question right in a seminar. As I look up to him as a life-changing guru and kindred spirit, I cling to it like Dobby the House Elf clung to his employer’s discarded glove.

Richard Edelin Crouch, b. 1940, is a prolific lawyer, author, and activist.  He had a military, criminal, civil liberties, public interest and general practice before limiting his practice to family law and legal ethics and malpractice, and especially international and interstate family law. At the same time he edited BNA’s Family Law Reporter and other publications, then the Virginia State Bar’s Family Law News, and several family law books and practice guides. He is now retired.

Movie from family law's good old days

In The Big Broadcast of 1938, Bob Hope got out of "Alimony Jail" and joined his three ex-wives and one girlfriend on W.C. Fields's ocean liner for a race to France. They don't make divorce like they used to.

"Where a divorce case was once a single thunderclap; it is today more of a drawn-out rumble."

-- from "ABATEMENT OF DIVORCE AND ANCILLARY PROCEEDINGS UPON THE DEATH OF A PARTY" by the National Legal Research Group, Inc.