Contracts Regulating the Marital Relationship That Violate Public Policy Are Unenforceable

Christopher Dargan (Appellant) had suffered an off-and-on addiction to cocaine for many years. Monica Mehren (Respondent) separated after an episode resulting from Appellant’s use of cocaine. The parties agreed that Appellant could return home with an agreement that recited that Respondent consented to the resumption of marital relationship on the condition that Appellant refrain from using any mind-altering chemical or substance. If Appellant deliberately used such substances, he would forfeit all of his right, title, and interest in specific property. Appellant did not keep his promise and Respondent filed for divorce. The Orange County divorce court concluded that the agreement did not violate public policy.

Appellant’s divorce attorney appealed from the Orange County Superior Court order upholding the validity of a post-marital agreement. In In re Marriage of Bonds (2000) 24 Cal.4th 1,99, our Supreme Court noted the difference between commercial contracts and contracts regulating the marital relationship. Commercial contracts have a specific object, and parties to such contracts generally enter into them, intending that the objects be achieved; whereas martial contracts are typically entered into the expectation that they will never be invoked. Furthermore “marriage itself is a highly regulated institution of undisputed social value, and there are many limitations on the ability of persons to contract with respect to it, or to vary its statutory terms, that have nothing to do with maximizing the satisfaction of the parties or carrying out their intent.” Id. at 99. The Bonds opinion rejects the freedom-of-contract analysis of martial contracts. Looking to the Family Code Section 721(b), Bonds also draws a distinction between premarital and post-marital contracts when it notes a difference in the fiduciary relationship between the parties; no such relationship exists preceding the marriage. The conduct of one spouse would affect the division of community property; the agreement frustrates the statutory policy favoring a no-fault divorce. In a case most analogous to this case, Diosdado v Diosdado (2002) 97 Cal.App 4th, 470, the Court adopted the reasoning of the divorce court that the agreement was not enforceable “because it was contrary to the public policy underlying California’s no-fault divorce laws.” Id. at 473. The Family Code Section 2310 states “fault is simply not a relevant consideration in the legal process by which marriage is dissolved. Recovery in no-fault dissolution proceedings ‘is basically limited to half the community property and appropriate support and attorney fee orders- no hefty premiums for emotional angst.” In this case the agreement purports to award a community property premium because of the behavior of the husband. As such, its objective is illegal under Civil Code Section 1667, which renders a contract unlawful if it is “[1] contrary to an express provisions of law; [2] contrary to the policy of express law…or, [3] otherwise contrary to morals.” In this Orange County divorce case, the very issue determining whether Respondent was entitled to the property would necessarily involve a judicial determination concerning Appellant’s drug use, a factual adjudication of fault that the no-fault statute seeks to avoid.

During oral arguments in the Court of Appeal, Respondent’s Orange County family law attorney argued that the agreement did not constitute a contract, but rather it was a gift subject to a condition precedent. However, the Respondent’s Orange County family law attorney waived such an argument by failing to raise it with the Orange County divorce court. Furthermore, the agreement had all the elements of a contract. It recites that Respondent consented to the resumption of marital relations on condition that Appellant abstain from illegal drug use. In addition, the agreement contained a formal consideration clause. It is basic that what distinguishes a contract from a gift is that the latter only takes place in the absence of consideration. Moreover, the gift would fail under Civil Code Section 709 which voids an agreement subject to a condition precedent that “requires the performance of an act wrong of itself…”

Lastly, the contract fails for lack of legal consideration. The Restatement of Contracts provides: “A bargain, the sole consideration of which is refraining or promising to refrain from committing a crime or tort, or from deceiving or wrongfully injuring the promisee or a third person is illegal.” In this Orange County divorce case, the sole consideration offered by the Appellant was his promise to refrain from using illegal drugs, a crime.

The Court ordered the Orange County divorce court to vacate its order and make a new order holding the post-marital agreement between the parties is unenforceable.

In re Marriage of Mehren and Dargan (2004) 118 Cal.App.4th 1167