PRE-NUPTIAL AGREEMENTS. NEW CHALLENGES IN THE ITALIAN AND EUROPEAN CONTEXT (original) (raw)

R. Montinaro - Marital Contracts and Private Ordering of Marriage from the Italian Family Law Perspective

The essay is centred on the role played by private ordering in regulating the financial terms of marriage dissolution. The Italian legal scholars' attitude regarding this issue has changed over time. It has transformed from a paternalistic perspective, mostly rejecting the spousal parties' freedom, to a novel view that favours an expanded role for contracts to determine the economic terms of separation and divorce. This process has been prompted by the evolution of family law provisions. Private ordering in marital dissolution poses several issues. It entails the need to establish a clear divide between those aspects that can become the subject of an agreement between the spouses, on the one hand, and what is outside the realm of private ordering, on the other. Private ordering also raises concerns regarding (1) the possible condition of bounded rationality by one of the parties at the time the agreement is concluded and (2) the substantive fairness of the terms agreed upon. The paper shows that scholars tend to tackle those risks by resorting to general contract law rules and principles provided by the Italian legal system.

Marital Contracts and Private Ordering of Marriage from the Italian Family Law Perspective

2017

The essay is centred on the role played by private ordering in regulating the financial terms of marriage dissolution. The Italian legal scholars’ attitude regarding this issue has changed over time. It has transformed from a paternalistic perspective, mostly rejecting the spousal parties’ freedom, to a novel view that favours an expanded role for contracts to determine the economic terms of separation and divorce. This process has been prompted by the evolution of family law provisions. Private ordering in marital dissolution poses several issues. It entails the need to establish a clear divide between those aspects that can become the subject of an agreement between the spouses, on the one hand, and what is outside the realm of private ordering, on the other. Private ordering also raises concerns regarding (1) the possible condition of bounded rationality by one of the parties at the time the agreement is concluded and (2) the substantive fairness of the terms agreed upon. The pap...

R. Fadda - The Italian Marriage: Crisis or Tradition

Numerous reforms of Italian family law have been enacted in recent years regarding marriage, which reinforce the freedom of the spouses and which have provoked a crisis of the institution itself. The tendency emerging from the new laws reveals an accentuation of the married couple's autonomy and of the public authority's limited role in the different phases of marriage. During the formation of the marital bond, the prospective spouses have greater freedom while the officiating public functionary has a role of mere certification and control. During the marriage itself, the spouses have greater freedom in regulating their personal relations and their property rights. In the event of dissolution, new procedures allow the spouses to separate or divorce without going to court. The 'crisis' of the marital relationship may be also caused by the introduction of laws which provide other models for couples (civil unions between persons of the same sex and cohabitation). Nevertheless, in noting the few yet significant differences in the law between marriage and civil unions, it appears that the legislative intent is to preserve certain 'traditional' aspects of marriage.

Prenuptial Agreement: Enforcing Marriage in the eyes of Law

Pre-nuptial agreement (pre-nup) an agreement of western origin is gaining its foothold in other parts of the world. In its classical western ideological sense the agreement is portrayed as a precautionary measure ensures to safeguard the assets of both the parties. The modern globalized world demands re-telling of the aspects behind the concept of such an agreement. It is in this aspect the author tries to analyze the development of the concept of a pre-nup and its effect on marriage in its modern sense. The paper also tries to analyze the issue of pre-nup being a sister concern of dower under its traditional notions of Muhammadan Law.

Analysis Of Prenuptial AgreementProvided by Albanian Legislation

2017

This paper carried out the framework reform of the Institute of marital property regime and marriage contract in Albania. The marriage contract is one of the most important innovations that the new Family Code of 2003 has introduced, anticipating the possibility that spouses are regulating marital property regime. Provisions regulating marriage in the Family Code provide undeniable autonomy of spouses especially in regulating property relations between the spouses. This is seen as an innovation since in the past this autonomy was categorically excluded. Due to the social importance of the family and to balance the private interests of spouses in the public interest, the autonomy of spouses in regulating the marital property regime is limited compared to the other contractual relations. The paper analyzes problems such as: the implementation of the principle of autonomy of will in regulating interpersonal relations; implementation of the Civil Code and Family Code norms on the marria...

The evolution of the position of Italian Case law concerning public policy in transnational family matters, in view of some recent judgments of the Italian Court of Cassation and Constitutional Court

CUADERNOS DE DERECHO TRANSNACIONAL, 2022

The position held by the Italian case law concerning public policy in transnational family law matters has recently experienced some interesting developments, showing an enduring ambiguity between two different notions of public policy for the purposes of private international law, between a "truly international" conception of public policy, whereby it should be considered as purely limited to internationally shared legal principles, concerning especially the protection of fundamental rights, and a more traditional notion. According to the latter notion, public policy for the purposes of private international law shall be considered as embodying mostly national principles, identifying the fundamental attitude of the country at the relevant time, as reflected non only by its constitutional rules, but also by the rules embodied in domestic legislation, insofar as these translate into concrete rules the general principles embodied in the national constitution. Some recent judgments by the * This article draws from a paper presented by the author at the VII Congreso internacional de derecho internacional privado de la Universidad Carlos III de Madrid, Orden público europeo en derecho de familia, held online on 6-7 May 2021. The author's participation as a speaker at the conference featured as part of the collaboration to its organization by the Interest Group Diritto internazionale privato e processuale of the Italian Society for International Law and European Union Law (SIDI-DIPP). Nonetheless, the opinions expressed therein are personal to the author, and do not involve the Interest Group, nor the Society.

Prenuptial Agreement: Provisions on Alimony and Patrimony Penalties in Case of Divorce

Revista Internacional Consinter de Direito

The present study aims to analyze the content limits of the prenuptial agreement, notably by approaching the existing dichotomy between private autonomy versus state interference in Family Law. Under this approach, it is intended to verify whether the aforementioned pact could include (i) a provision that deals with alimony; and (ii) inclusion of property penalties due by one spouse to the other in case of rupture of the marital relationship. There are few scientific works that address the specificities and controversies of the institute in the Brazilian legal system. In addition, research shows that the number of prenuptial agreements signed in the country has practically doubled in the last ten years, which reinforces the relevance of this study. The method used is deductive, through bibliographic research, including using comparative law, notably Portuguese law.

Private Autonomy and Family Public Policy in Italy

Białostockie Studia Prawnicze

The article deals with the general clause of public policy in Italian family law. It analyses the recent case-law application of both international and internal public policy in the Italian legal system. Nowadays, public policy is used for protecting and developing the fundamental rights of individuals in the EU space. However, the content of this general clause is debated, and there are several theses (e.g. constitutional, discretionary, globalized public policy). Adhering to one concept rather than another has different consequences. Think, for example, of the recognition of double paternity acquired abroad through a surrogacy contract. Moreover, family public policy can be viewed both as public policy of the family (a general clause that protects the family rather than its members) and public policy in the family (a general clause that protects the fundamental rights of the individuals rather than the family). Subsequently, the article analyses prenuptial and postnuptial agreemen...

A New Italian Family Law

The Italian private law landscape appears much clouded. Nevertheless, the sensation of turmoil is less significant with reference to family law, because it seems possible – after several reforms and the courts' decisions – to identify a specific trend in this section of private law. This paper aims to examine the new trend of family law. In particular, the analysis of the latest reforms reveals a general shift to an individual dimension, offering not only a special focus on patrimonial issues and private interests, but also a relevant enlargement of children's and parents' fundamental rights. This " privatization process " gives rise to many doubts about the current role of family law in our legal system.