In the firmament of Hollywood stars, couples are not eternal like diamonds. It is normal for celebrities to sign certain clauses before the wedding in case things do not go well. Commitments that even go beyond the distribution of mansions and millions, and that aim to keep the relationship alive. This is the case of the striking agreement that, according to different US media, Jennifer Lopez and Ben Affleck have signed, in which they promise to have at least four sexual encounters per week. Regardless of the reactions to the news on social networks, one wonders if such an agreement would be legal in Spain and what red lines the legal system marks for spouses.
In the opinion of Juan Pablo González, head judge of the Court of First Instance number 24 of Madrid, a sexual agreement, such as the one that the Puerto Rican singer and her fiancé would have agreed, “would be declared null, without value or any effect, for being contrary to freedom and personal dignity and the free development of the personality”. An analysis with which Delia Rodríguez, managing partner of Vestalia Family Lawyers, agrees, for whom the pact contravenes public order, since “it would suppose a limitation to the rights of each spouse in relation to her personal privacy”. If the couple were forced, adds Isabel Winkels, managing partner of Winkels Abogados, it could be a crime of sexual assault “with the aggravating circumstance, in addition, of kinship.”
The agreement between Jennifer Lopez and Ben Affleck could be a way to ward off the ghost of infidelity. Celebrities usually cover their backs in front of the horns with millionaire fines. On this side of the Atlantic, Spanish courts are suspicious of these arrangements because “they inadmissibly limit the sexual freedom of a spouse,” says González. Already in 1999, the Supreme Court affirmed that the non-pecuniary damage caused by deception “is not susceptible to any financial compensation”. But, for González, these agreements should be allowed if they are voluntarily assumed, especially when “the duty of fidelity, although it is incoercible, derives from marriage.”
Although they are not very widespread, prenuptial agreements “are perfectly legal in Spain and are protected by the principle of freedom of agreements,” says Winkels. They can regulate all kinds of issues, both patrimonial and personal, as long as “they do not contravene the law, morality and public order.”
One legal way is to include them in the marriage agreements through which the spouses decide before a notary the economic regime of the couple. In 2020, for example, of the 90,670 weddings held, 15,840 property separations were signed, according to data from the General Council of Notaries (CGN).
In marriage agreements, warns the CGN spokeswoman, María Teresa Barea, there are “very clear red lines.” The first, respect for full equality between spouses. For example, the Provincial Court of Almería annulled in 2003 a clause by which the husband undertook to pay his future wife one million pesetas (just over 6,000 euros) if they broke up during the first year of marriage, and 83,333 pesetas more (500 euros) for each additional month of coexistence. For the magistrates, it was a penalty that favored “the economic interests of a spouse” and inadmissibly limited the right to separation or divorce from the husband. However, in 2015 the Supreme Court validated a lifetime pension of 1,200 euros per month in the event of divorce, even though the woman worked.
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As Delia Rodríguez points out, the validity of these compensations for separation “will always require a detailed analysis of the circumstances of the particular case.” For the lawyer, the clause that Elizabeth Taylor and Larry Fortensky (a bricklayer who became the eighth and last husband of the legendary actress) would have passed the test for which, if the marriage lasted five years (just as long as it lasted), he would get a million dollars. Since Fortensky did not have a fortune while she was swimming in abundance, she explains, “it could be argued that it did not cause imbalance to the party obligated to pay and, therefore, could be covered under the umbrella of the autonomy of the will” .
Another limit to the will of the spouses, continues Barea, is the protection of the children, which prevents agreeing on “provisions on the future guardianship and custody of the children without the control of the judge and prosecutor.” In Spain, Winkels points out, an agreement like the one that Brad Pitt and Angelina Jolie would have supposedly signed whereby she would have custody of the couple’s six children if he was unfaithful “would never be enforceable.”
As Elena Valdivieso, from the Madrid Provincial Prosecutor’s Office, warns, “the will of the parties cannot be above the interest of the minor.” A singular case is that of the offshoots of the royal houses. Some of them, among which would be the Spanish and the British, provide that minors remain in the custody and education of the crown in case of separation. Although there are special rules, explains Valdivieso, these agreements do not bind the prosecutor or the judge: “The suitability of the custodial parent should be evaluated at the time of execution.”
In short, each marriage is unique and, although it may not seem as romantic as “rich and poor… until death do us part”, having personalized agreements can avoid a bad drink in the long run.
Couple commitments can also affect pets. In January, the reform of the Civil Code came into force so that animals are legally considered as “sentient” beings and not as things. The text guarantees the protection of the bond that unites animals with their human family in separations or divorces. For this, the agreements or sentences that resolve these marital crises will have to detail the custody, visits and maintenance regime of the pet. In October 2021, a pioneering sentence from a Madrid court granted shared custody of a couple’s dog based on the affective bond and not on the ownership of the dog.