Perspectives for an International Marital Contract
Maastricht Journal of International and Comparative Law, Vol. 8, No. 2, pp. 189-200, 2001
9 Pages Posted: 29 Jan 2011
Date Written: 2001
In this article it is argued that an international Treaty regarding a uniform law on an international optional marital property system, should be considered. This would not be opposed to culture or tradition, because it is an optional system. It merely is an alternative that must be chosen explicitly. The possibility for couples in an international context to opt for a uniform international marital contract that is the same in all of the contracting states, would increase legal certainty for these couples. It would also contribute to the approaching of European nations and their legal systems towards each other.
There is a growing consensus on some common values in all of the European member states, regardless of cultural and historical differences in this area. They include autonomy and equality but also solidarity. In this contribution six basic features for an international marital contract are put forward. It is argued that a system of separation of assets with a participation claim regarding marital gains may create an equitable compromise between the conflicting needs for autonomy on the one hand and solidarity on the other hand.
First feature - Separation of assets as basic regime. Second feature - Correction upon dissolution. Third feature - Correction via contractual participation claim. Fourth feature - Basis for participation claim = marital gains or acquêts. Fifth feature - Management restrictions. Sixth feature - Participation standard = equal participation with correction.
Keywords: Marital Contract
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