Projects / Programmes
| Code |
Science |
Field |
Subfield |
| 5.05.00 |
Social sciences |
Law |
|
| Code |
Science |
Field |
| S110 |
Social sciences |
Juridical sciences |
| S130 |
Social sciences |
Civil law: persons, family, marriage contract, successions, gifts, property, obligations, guarantees |
Civil Law, Family Law, property relations between spouses, marital property regimes, ownership in common, common property, separate property, (pre)nuptual agreement, new property, pension property, division of common property
Researchers (2)
Organisations (1)
Abstract
Subject of the proposed research is going to be the part of family law, or more precisely the part of matrimonial law, that preponderantly includes civil law connotations: that is the law of property relations between spouses. Since the Slovenian Constitution, accepted in 1991, appointed the right to property to its former, classic role in the legal system, as far as legal provisions dealing with property relations between spouses de lege lata are concerned, the main problem is the obligatory marital property regime. Even if they would like to, the spouses can’t change a legally prescribed community property regime, which consists of assets gained with their work during the marriage, to a regime of their own choice or need. This solution is contrary to some general principles of civil law, specially to the principle of autonomy of contract parties and principle of disposition with legal rules. According to our view, in future these two principles should be used also in cases dealing with property relations between spouses. Basically they are also civil law relations. Because of that, there is a need for a change of present family law legislation. New law should enable contracting pre-nuptial (nuptial) agreements and, at the same time, it should “renew” the existing legal marital property regime. It will be used for the couples that won’t agree upon making a pre-nuptial contract. In this way constitutionally compromising interference into property rights of spouses (article 33 of Slovenian Constitution) would be abandoned. If we assure, by acceptance of some special legal rules, that the interests and rights of third party in good faith (specially those of children and creditors) aren’t endangered, there can be no claim that the social function of property, demanded by the constitution (article 67 of Slovenian Constitution), is not guaranteed.
