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Suppose a couple signed a prenuptial contract that said they couldn't go to court regarding their divorce and custody of children. Everything must be resolved through mutual consensus and consultation of their respective families.

After some time, the wife wants a divorce and full custody of the children, but the husband won't agree with her about the custody. He won't let children go no matter what.

Can she go to court?

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    what jurisdiction?
    – mkennedy
    Commented Sep 12, 2022 at 12:06
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    @mkennedy, Germany, and Poland.
    – user366312
    Commented Sep 12, 2022 at 12:07
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    The mother may be able to agree to arbitration regarding her own matters, but cannot sign away the rights of the children. And at least in Germany, divorce without going to court is impossible. Binding arbitration for divorce would make divorce impossible, which sounds unconscionable. The mother should get a lawyer to analyze whether (or to which degree) the existing agreement is binding.
    – amon
    Commented Sep 12, 2022 at 12:37
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    A lawyer once said to me: a contract doesn't necessarily mean what it says; it means what a Court decides [that it means]. Commented Sep 13, 2022 at 3:58
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    @quarague indeed, and the court will rule in favor of the child, not in favor of either parent. Custody is about the child's protection and rights, not the parent's rights.
    – Trish
    Commented Sep 13, 2022 at 9:03

4 Answers 4

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What kind of contract would that be? One about... arbitration? One about "I hereby relinquish my claim for payment of X?" --- children cannot be taken away from their father, no matter what. - OP

That contract is void in because this contract not only violates public policy, it tries to modify something that is regulated by law into a way that does offer less than the law demands as a minimum. That's not allowed in Germany. Further, a clause that gives custody to the father by default is also Sittenwidrig in Germany, and thus void under §138 BGB. So would be a clause that gives it to the mother by default by the way.

In a case of controversy, only a court order can assign guardianship. And only the court can take guardianship away. When the kid is born its guardianship gets assigned to the parents as guardians by §1626 BGB. While it is possible to give your partner guardianship if you're not married under 1626a BGB it is explicitly impossible to assign guardianship for any compensation to either party (e.g. the mother or the new guardian may not receive anything other than the guardianship in the specific paper) under 1626b BGB. Thus a contract that does anything else in addition to guardianship, like a prenup, voids at least the guardianship clauses. And you have to tell the court about that assignment of guardianship under ($1626d BGB). Now comes the kicker: §1628 BGB forces the parents to apply to the court to solve any problems of huge impact, such as guardianship: So technically, mediation results are fully non-binding and you can not mandate it.

Also, since all marriages are through the state, it needs a formal instrument of the state to be dissolved. The only three ways that the state ever allowed this to be done after WW2 were a) annulment through a court, which only was possible till 1998, or b) divorce through a court, c) death of one of the marriage partners. Yes, it takes a judge to divorce a marriage under $1313 BGB or one of the two married to die.

Because you can't divorce without a filing in court, a clause that demands to divorce in some way that is not including §1313 BGB, that clause would be void. It might be legal to have a clause that demands to try to solve issues in arbitration before filing for divorce or sorting the belongings in such a way, but it can't supplant the court requirement.

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In the United States, this contract would be void for violating public policy.

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    Is that just a personal opinion or is there case law to support that? In other words, do you have positive evidence to support your claim?
    – user6726
    Commented Sep 12, 2022 at 15:28
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    It's black-letter law -- like saying that stealing is a crime or that a contract must be supported by consideration.
    – bdb484
    Commented Sep 12, 2022 at 17:27
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    @bdb484 You are correct. Pre-nuptial agreements are generally recognized in US courts, but they cannot deal with child custody or child support matters.
    – Flynn
    Commented Sep 12, 2022 at 20:23
  • It's unconscionable, it's against public policy, and it's way beyond the normal bounds of inter-personal or business agreements. Those are three independent reasons that US courts would refuse to honor such a provision. Commented Sep 13, 2022 at 20:20
  • @user6726 In general, illegal contracts are unenforceable. In other words, you can create a contract that is incompatible with the law but it (or those aspects of the contract) will not be recognized by the courts. For example, people have, for demonstrative purposes, put terms such as giving up your first born child in the terms and conditions of websites but such conditions have no real legal ramifications.
    – JimmyJames
    Commented Sep 14, 2022 at 16:23
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Under Oregon Statutes § 108.710:

Subjects of agreement; child support not to be adversely affected.

(1) Parties to a premarital agreement may contract with respect to:

(a) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

(b) The right to buy, sell, use, transfer, exchange, abandon, lease, > consume, expend, assign, create a security interest in, mortgage, encumber, dispose of or otherwise manage and control property; (c) The disposition of property upon separation, marital dissolution, death or the occurrence or nonoccurrence of any other event;

(d) The modification or elimination of spousal support;

(e) The making of a will, trust or other arrangement to carry out the provisions of the agreement;

(f) The ownership rights in and disposition of the death benefit from a life insurance policy;

(g) The choice of law governing the construction of the agreement; and

(h) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

(2) The right of a child to support may not be adversely affected by a premarital agreement.

Marriages may be terminated only by death or court order of divorce or annulment, so one can't get divorced without going to court.

Furthermore, the right to seek a divorce may not be waived entirely in any state, although some U.S. states have a concept called "covenant marriage" that can subject a marriage to fault based standards for divorce rather than the no fault standards that apply otherwise (the applicability of those laws if divorce is sought in another state is something of an open legal question). An agreement to do so would be void as contrary to public policy.

In general, marital agreements pertaining to child custody and child support are void because the children are not parties to the agreement.

Matters that are properly within the scope of what may be in a marital agreement can, however, generally be required to be resolved by arbitration. But the marital agreement and arbitration awards arising from a marital agreement cannot be unconscionable as applied even if they would have not been unconscionable, necessarily, when entered into by the parties. See Oregon Statutes § 108.725 which states:

Party may prove agreement unenforceable; when court may require support; determination of unconscionability.

(1) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

(a) That party did not execute the agreement voluntarily; or

(b) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:

(A) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

(B) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(C) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

(2) If a provision of a premarital agreement modifies or eliminates spousal support and that modification or elimination causes one party to the agreement to be eligible for support under a program of public assistance or medical assistance at the time of separation or marital dissolution, a court, notwithstanding the terms of the agreement, may require the other party to provide support to the extent necessary to avoid that eligibility.

(3) An issue of whether a premarital agreement is unconscionable shall be decided by the court as a matter of law.

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The Court are the custodian of children. Any affairs concerning children should be decided by the court. A marriage can not be annulled without an Court order.

The prenuptial document gives guidelines how the matter may be addressed,but the Court will still be involved.

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