Ongelijkheid in Huwelijks - En Samenlevingscontracten (Inequality in Marital Contracts - A Plea for Imperative Rules and Negotiated Approach) (in Dutch)
Tijdschrift Estate Planning, pp. 98-117, 2010
Tijdschrift Conflicthantering, No. 8, pp. 21-30, 2009
10 Pages Posted: 31 Jan 2011 Last revised: 3 Apr 2011
Date Written: September 29, 2009
Despite the legal equality between husband and wife in marriage, there remains an enormous factual inequality that does not seem equitable. Many women remain in a weak financial and economical position, given the possibility in many continental jurisdictions such as Belgium, France, the Netherlands, to adopt a marital contract of strict separation of assets. The paper claims this injustice be solved exploring two tracks: externally and internally. The external track suggests intervening through legal means: an imperative system of participation in marital gains, irrespective of the marital contract. The internal solution mechanism would be to empower the weaker spouse at the very outset of the marriage: when the marital contract is negotiated. If such negotiation, so the argument goes, would effectively take place, and be conducted in a transparent manner, more equitably balanced contracts would be made. If spouses would not be able to reach agreement, then it be better that no contract nor marriage would be concluded.
Note: Downoadable document is in Dutch.
Keywords: Marital contract, Separation of property, Imperative, Participation mechanism, Negotiation, Gender
JEL Classification: K10, K11, K12
Suggested Citation: Suggested Citation