Original scientific paper

(In)Compatibility of Pre-nuptial Contract and Bonum Coniugum

Lucija Babić orcid.org/0000-0002-0404-8429 ; Catholic Faculty of Theology, University of Zagreb, Zagreb, Croatia
Olja Barščevski ; olja.barscevski@gmail.com

Abstract

Contractual property system allows spouses to adapt their property affairs according to their personal needs, interests, and agreement. The accepted principle of autonomy of will of both parties acknowledges that they are free to arrange their affairs in a way that suits them best, even if these entirely or partly deviate from legal prescriptions. In 1998 Croatian family legislation introduced the possibility of concluding a nuptial contract. In the first part of this article the authors will explain the concept of nuptial contract, its subject and form according to the current Croatian legislation, as well as provide a short overview of legislation in some other European countries. In the second part of the article, the authors will discuss the significance that nuptial contracts can have in the area of canonical legislation in terms of canonical matrimony and specifically for their (nuptial contracts) relation to or (in)compatibility with the essential parts of matrimony – the good of spouses (bonum coniugum). There is, namely, one obvious contradiction between planning division and separation, on one hand, and total sharing and lifelong devotion in marriage on the other. Concerning the issue of the impact of nuptial contract on the validity of marital consent and especially on the good of spouses, no single answer is forthcoming. Instead, it is necessary to judge the concrete nuptial contract in a specific case while taking into consideration all circumstances: mentality of spouses, quality of their relationship, reasons for making the contract, its purposes, etc. The fact a nuptial contract has been signed is a warning sign to those who are in charge of preparing fiancées and it should not be treated lightly. Furthermore, in the context of legal proceedings for determining whether a matrimony is void, these contracts are a precious sign (proof) of intent and attitude of fiancées during the act of giving consent.

Keywords

property-legal affairs; nuptial contract; voidness of marriage; good of spouses (bonum coniugum)

Hrčak ID:

124963

URI

https://hrcak.srce.hr/124963

Publication date:

11.7.2014.

Article data in other languages: croatian

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