Considerations about prenuptial agreement and existential clauses

Family law is increasingly contractualized. This is due to the development, understanding and appreciation of private autonomy, a watchword in contemporary Civil Law, and especially in Family Law. Paulo Lôbo, with the authority of one of the greatest Brazilian jurists, in IBDFAM Magazine nº 53 proposes the replacement of such expression by “existential self-determination”reinforcing, deepening and resignifying this concept [1]. These ideas are directly linked to psychoanalysis, insofar as it was the one who revealed, and unveiled, the subject of rights as a subject of desire. And nothing is more private and subjective than desire. If the subject of rights is a desiring subject, it is necessary to recognize and respect the desiring particularities and subjectivities. This is where private autonomy begins, permeates and ends: in desire. This means respect for the humanity of each of us with all its idiosyncrasies. It is respect for human dignity, a constitutional macro principle, which is also the cornerstone of the Democratic State of Law.

Marriage is a solemn and formal contract, to regulate patrimonial, existential and affective aspects. Most people marry without questioning the general rules of marriage, as in a “contract by adhesion: they enter the “automatic” property regime, that is, they do not make a prenuptial agreement and therefore marry under the partial community property regime. It seems to me to be a fair regime. What few people know is that you can invent the property regime you want, as already provided for in CCB 1916 and later repeated in CCB 2002: “It is lawful for the bride and groom, before the marriage is celebrated, to stipulate, as to their property, what they please” (Article 1639). Even less is known that it is possible to establish non-patrimonial clauses in these pacts. Obviously, for this it is necessary to make a public deed, which must be taken to the civil registry office along with the “paperwork” to get married.

With the emphasis and valorization of private autonomy, existential clauses in prenuptial agreements begin to form part of our legal reality, as is already the case in other countries. If such clauses do not violate public order, they will be valid and effective. The question then is: what hurts and affronts public order? For example, does establishing that the couple can have an “open relationship”, that is, that they do not have a duty of fidelity, violate public order? Should this particularity and intimacy be respected? Can each couple make their own code? These questions lead us to a broader and deeper understanding of sex and sexuality and the boundary between public and private. Contemporary Family Law demands from us this reflection and understanding.

Sexuality goes far beyond sex, and is present in all Family Law. It is a system of relationships, affections, institutions, expectations and failures. Sex is friction and fantasy, as the Spanish author José Antônio Marina said so well [2]. And that’s how marriage became the legitimizer of sexual relations [3]. But sexuality, which traditionally was in the field of social morality, was privatized and today belongs to the intimate life of each one. For this reason, it is even important and convenient to make clear the rules of conjugal coexistence. Talking and writing about it, as uncomfortable as it is, ultimately means caring for love. [4]. The free expression of love and affection only became possible because it is supported by a new discourse on sexuality.

In system countries common law, especially in the US, famous couples’ pacts involving sex and wealth are known. Actress Jennifer Lopes and actor Bem Affeck, according to newspaper reports, established in their prenuptial agreement the obligation to have quality sexual relations, four times a week; Catherine Zeta-Jones and Michael Douglas made their marriage conditional on the groom’s treatment for a nymphomaniac disorder, under penalty of a millionaire fine; Nicole Kidman set out in her prenuptial pact that singer Keth Urban would receive a $600,000-a-year award if he stayed free of illicit drugs and had no relationships with other women; Facebook creator Mark Zuckerberg, known as a workaholic, established in his pact with Priscilla Chan that, in addition to having sex at least once a week, he should have at least one hundred minutes of time devoted to her; Justin Timberlake and Jessica Biel set a fine for cheating.

In England, Queen Elizabeth II demanded that William and Kate Middleton sign a prenuptial pact in which she would lose the title of Duchess, the throne, the house and custody of their children, and would be prevented from speaking to the media if she divorced.

In Portugal, Article 405 of the CC makes explicit the wide contractual freedom: “1. Within the limits of the law, the parties have the right to freely determine the content of the contracts, enter into contracts different from those present in this code or include in these clauses as they see fit. 2. The parties may also combine in the same contract rules of two or more businesses, fully or partially regulated by law”. Further on, the same code establishes in its Article 1699 what cannot be included in the prenuptial agreement: regulation of hereditary succession; changes in marital and parental rights and duties; change the rules of asset administration; stipulation of the communicability of the goods listed in Article 1,733.

These prenuptial agreements, or prenuptial pacts, as we call them in Brazil, despite the spectacularization they bring with them, reveal freedom, and teach us about this “existential self-determination”, which is increasingly beginning to gain ground and body in the Brazilian legal reality, again. It is obvious that the CCB-2002 did not expressly provide for these existential issues, as it is a code engendered in the context of a family and patriarchal structure, patrimonialized and hierarchical, and these were veiled matters that could not be talked about. But Statement 635 of the VIII Conference on Civil Law, which includes interpretations of the CCB, leaves no doubt about its possibility: “The prenuptial pact and the contract of coexistence can contain existential clauses, as long as they do not violate the principles of human dignity, equality between spouses and family solidarity”.

The most common existential clauses established in prenuptial contracts and agreements are: division of household chores, privacy on social networks, compensation for infidelity, on heterologous assisted reproduction techniques, religious education of children, whether one of the spouses/partners can or cannot to be the caretaker of the other in case of dementia, etc.

There are no limits to creativity. Each couple can and must build and respect their particular code. And here comes a reflection: establishing practices of sadomasochism, as the couple in the book/film “Fifty Shades of Gray” did, go beyond the limits of public order? Or is it just an unusual practice? After all, illegitimate sex is just that which is practiced without the consent of one of the parties, and with vulnerable people. If such clauses do not go beyond the barrier of human dignity and do not affront public order, they can be established.

Combining rules of coexistence is taking care of love. The combo is not expensive. Establishing patrimonial and existential clauses in a prenuptial agreement, or even post-nuptial agreement, or a stable union contract, can avoid much discomfort in the future, and the possibility of the conjugality working out is greater. Even if such obligations are difficult to fulfill or legally ineffective, they are still important, as they can act as guidelines for the couple. They are signs and connections with responsibility and freedom, and they also have a symbolic and pedagogical value. It’s like the practice, common in the US, of ethical wills. Someone leaves a recommendation to his heirs to follow certain ethical and moral conducts in life. Another example: the obligation to “have four quality sexual relations a week”, besides being ridiculous, it cannot be proved compliance or non-compliance, unless at the end of each relationship one gives a receipt to the other. And even so, the assessment that it was of quality is relative and personal. However, a parameter was established there for that couple. These rules and particularities must be respected. The State cannot interfere in this intimacy and intend to regulate the economy of people’s desires. This would be an undue and moral interference in existential self-determination.


Bibliography

[1] LÔBO, Paulo – IBDFAM Magazine: Family and Successions n.º53, Sep/Oct. 2022,

[2] MARINA, José Antonio, Trans. Diana Araujo Pereira. Rio de Janeiro: Ed. Umbrella, 2008

[3] PEREIRA, Rodrigo da Cunha – Sexuality seen by the courts – Belo Horizonte. Del Rey, 2001

[4] PEREIRA, Rodrigo da Cunha – Family Law – Rio de Janeiro, Forensics, 2022

Rodrigo da Cunha Pereira is a lawyer, national president of the Brazilian Institute of Family Law (IBDFAM), doctor (UFPR) and master (UFMG) in Civil Law and author of several articles and books on Family Law and psychoanalysis.

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