從婚姻法私法化論美國夫妻分居契約之有效性檢視

From the Privatization of Marriage Law to Research on the Review of the Validity of Separation Agreements by Husband and Wife in the United States

美國法展現「婚姻法私法化」的特色，承認分居契約之有效性，准許夫妻自行規範分居後的權利義務，然因分居契約具身分法之特殊性，美國法對其有效性有特殊的審查檢視，在分居契約不具公平性時，使其較財產契約更易無效。惟就實作以觀，分居契約若僅以程序公平審查標準檢視，不論借助財產契約詐欺與脅迫情事，或傳統身分法「信任關係原則」審查，皆有不足之處，以實質公平審查標準檢視時，基於對契約自由的偏好，多傾向於橡皮圖章式的寬鬆審查，亦使分居契約實質公平理念無法真正落實。本文先從美國分居契約有效性的論理與歷史脈絡探觀，進而切入有效性檢視最核心的程序與實質公平審查標準，逐一論析其適用現況及困境，藉此反思我國法可能面臨的問題，並提出比評，期為參考與借鏡。

Most American spouses who live apart tend to arrange the consequences of their separate lives with separation agreements. Apart from the traditional rules of denying separation agreements, American legal systems currently admit the validity of separation in terms of respecting autonomy, which demonstrates the privatization of Marriage Law. However, due to the unique nature of separation agreement for its belonging to the family law, the validity of such agreement is subject to special review under U.S. law. When the contents of a separation contract are unfair, it--as opposed to any other contract--is more likely to be invalidated by the court in order to protect fairness. In practice, however, If separation contracts are examined solely by the standard of procedural fairness--whether by means of ordinary contract review fraud and duress or by the traditional family law of “confidential relationship principle,” there will be deficiencies. Also, courts cannot properly review the separation agreements under the substantial fairness standard since they usually rely solely on the procedure fairness standard without actually using the substantial fairness standard. Additionally, in an attempt to promote the freedom of contract, most American courts review separation agreements in a perfunctory way. It is therefore difficult to implement the fairness on separation agreements as American courts tend to hold the validity of separation agreements. This article first explores the theories and the history of the validity separation agreements in the United States, and analyzes the special characters of separation agreements. It then examines the procedure and substantial standards--the core issues on the validity of separation agreements--and discusses the current application of the above standards as well as the difficulties in applying in real cases respectively. Finally, the article provides insight into the related issues in Taiwan and offers suggestions by comparing the differences between the American and Taiwanese law. It is hoped that this article can improve the possible development of the separation agreements.