Chapter 3: Marriage(I)
Page 42 3. Marriage (I) 1 THE MARRIAGE CONTRACT The term ‘contract’ is, no doubt, the best way to define the legal relationship between two people who decide to live together and form a family. However, we are not talking here about a contract reached on the basis of complete freedom of agreement between the parties. On the contrary, the marriage contract is a strongly regulated one in which the law substantially limits the freedom of the parties in reaching an agreement. Why does the law interfere with freedom of agreement in some contracts, particularly in the marriage contract? Two different reasons are usually given to explain this interference. First, reasons of efficiency. According to this point of view, the existence of rules that regulate marriage contracts can reduce transaction costs in the negotiation of clauses, and can act as a reference if queries appear at a later date in the resolution of issues not previously agreed upon specifically by the parties. In practice, people getting married do not normally sign a specific agreement but just comply with the general conditions established by civil law. The few marital agreements that are reached before getting married generally refer to the future economic functioning of the marital partnership. The second reason why the law strictly regulates the marriage contract is equity. In pursuit of equity, the law often tries to favour the supposedly weaker party, as opposed to the better placed party who could use this dominant position to obtain unfair advantages...
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