Contracts in Danish Family Law – In the Cross Field Between Civil Law and Public Law

Abstract

The institution of marriage is regarded as a contract between two consenting individuals. Some of the effects of marriage have both private and public law aspects. Danish family law finds itself in between civil law, which is mandatory, and private law, primarily based on contract law. This article describes and analyses the relevant provisions in relation to contracts between spouses that are either entered into during marriage or after legal separation or divorce. It deals with contracts concerning property relations, contractual obligations to pay maintenance to the other spouse and agreements relating to children. It also considers the need to provide a safety net for the weaker party so that he or she is not exploited by a party who is economically or mentally stronger. Unfortunately, there is a growing number of cases where parents cannot agree and thus there is a growing number of lawsuits on the termination of joint custody and on visitation rights. Developments in Denmark have seen a move away from the former control of family agreements and to a greater focus on legal advice and guidance.