A question that family lawyers are often asked by divorced clients is as follows: do the agreements that I reached with the other parent have validity even though they have not been approved by a judge?
The First Chamber, Civil Chamber, of the Supreme Court, has just issued two Sentences that resolve this question in the affirmative.
The first sentence, issued on October 15, 2018, indicates that “Agreements on measures relating to the minors of both spouses, will be valid as long as they are not injurious to the interests of the child and are in keeping with the limitations of the article 1814 of the Civil Code, that is to say, the child’s right to maintenance cannot be waived or disposed of, nor can it be compensated with a debt between the parents.”
The assumption of fact was as follows: Spouses who at the time of the separation and as a private agreement between them pact that the father will pass 150 Euros alimony to their child and contributes 50% to the payment of the non-recurring expenses of an educational and medical nature and establish measures related to the child’s visiting arrangements.
The spouses did not attend the divorce court proceeding and, consequently, this agreement was not ratified or subject to judicial approval.
In the proceeding initiated by the wife, she claims from the father the payment of what is owed for the costs of basic foodstuffs for her son based on the agreement of both in the marriage separation agreement that had not been ratified nor submitted to approval by a judge.
The sentence states categorically: “The regulatory agreement cannot be considered ineffective simply because it has not been approved by a judge.”
The second sentence, dated November 7, 2018, considers a regulatory agreement signed by the parties but not ratified and therefore not approved by a judge: “It cannot be integrated in the judicial decision with all the procedural efficiency of executive force, but neither it can be denied its valid and effective legal family business nature, unless the party that signed it, but did not ratify it, prove in a court of law a defect in the consent according to article 1,265 of the Civil Code, or any substantial modification of the circumstances that determined the initial consent. ”
The assumption of fact in this second case is as follows: The parties signed a divorce agreement and filed it together with the divorce petition in the corresponding court, initiating the appropriate procedure. The husband did not go to the ratification of the agreement, which motivated the filing of the procedure.
Next, the wife filed a contentious divorce claim against the husband in which the measures she requested as an effect of that brought the cause of the agreement which was not judicially ratified.
In this case all the measures regulated in this agreement refer to patrimonial and economic aspects.
In this second case, the ruling is categorical: “What is not possible, and contrary to the jurisprudence of the court, which has been extensively reviewed, is to deny its nature as a family legal business, as an expression of the principle of the autonomy of the will, … Hence, if the party that signed the agreement, as family legal business, and that is provided as such by the counterparty during the contentious process, does not claim or justify any of the circumstances mentioned above, the court will not decide on the measures which are postulated, departing from what has been freely agreed by the spouses in the agreement signed by both, and making its own legal assessment on such measures.”
