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PaperclipPerfector  11mo ago (text post)   5141 thread views

Small-Scale Question Sunday for December 24, 2023

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I'm not sure I understand what's the specific power that you posit was lost - the ability to extract a legally enforced costly promise (marriage) as a condition for sex? Surely contract law would still allow for something in that class, if there were actually an appetite for it.

Surely contract law would still allow for something in that class, if there were actually an appetite for it.

I'd again point to Diosdado v. Diosdado as at least hinting that, no, contract law, as currently instituted, probably wouldn't allow for that sort of thing — much as the court disallowed the pre-nuptial contract due to it being contrary to the state's "compelling interest" in no-fault divorce.

much as the court disallowed the pre-nuptial contract

Can you explain this?

Diosdado v. Diosdado.

Well, actually, in that case, it wasn't a pre-nup, but a "Marital Settlement Agreement," but AIUI, it's been cited as precedent to rule various pre-nups invalid.

Donna then brought this action for breach of contract in February 2000, seeking to enforce the liquidated damages clause of the agreement. On the first day of trial, the trial court, on its own motion, granted a judgment on the pleadings in favor of Manuel. Donna appeals from the judgment.

…

[1a] The only question before this court is whether the agreement is enforceable. The trial court found that it was not because it was contrary to the public policy underlying California's no-fault divorce laws. That reasoning is sound.

In 1969, California enacted Civil Code section 4506 (now Fam. Code, § 2310), providing for dissolution of marriage based on irreconcilable differences which have caused the irremediable breakdown of the marriage. This change was explained in In re Marriage of Walton (1972) 28 Cal. App. 3d 108, 119: "After thorough study, the Legislature, for reasons of social policy deemed compelling, has seen fit to change the grounds for termination of marriage from a fault basis to a marriage breakdown basis."

…

[1b] Contrary to the public policy underlying California's no-fault divorce laws, the agreement between Donna and Manuel attempts to impose just such a premium for the "emotional angst" caused by Manuel's breach of his promise of sexual fidelity. fn. 1 The agreement expressly states the parties' "mutual understanding that any such breach of fidelity by one party hereto may cause serious emotional, physical and financial injury to the other." The agreement then imposes a penalty on the breaching party, in the event either party chooses to terminate the marriage "because of said breach." This penalty includes "liquidated damages for said breach in the sum of $50,000," over and above any property settlement or support obligations imposed in the dissolution proceeding.

The family law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity, and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce.

To be enforceable, a contract must have a "lawful object." (Civ. Code, § 1550, subd. (3).) A contract is unlawful if it is contrary to an express provision of law, contrary to the policy of express law, or otherwise contrary to good morals. (Civ. Code, § 1667.) Here, where the agreement attempts to impose a penalty on one of the parties as a result of that party's "fault" during the marriage, it is contrary to the public policy underlying the no-fault provisions for dissolution of marriage. (See Fam. Code, §§ 2310, 2335.) For that reason, the agreement is unenforceable.

IANAL, but the court seems to be saying quite plainly here that since the California legislature made divorce "no fault," any contract between spouses that would function as restoring "at fault" divorce is contrary to public policy and thus unenforceable.

Yes, basically.

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