THEORETICAL AND LEGAL FOUNDATIONS OF UNDERSTANDING MARRIAGE AS A CONTRACT

Abstract

The article systematizes doctrinal approaches to understanding the concept of marriage in the modern period, which makes it possible to trace the evolution of scholarly views from the traditional institutional approach to a more flexible contractual concept. It is substantiated that contemporary legal doctrine demonstrates a gradual shift from perceiving marriage exclusively as a status-based relationship towards recognizing its contractual features, albeit subject to certain public law limitations.A comprehensive approach is proposed to understanding marriage as an institution that combines both status-related and contractual elements, where the contractual nature is manifested at the stages of entering into and terminating marriage, while the status-related nature dominates during the existence of marital legal relations. It is argued that the contractual character of marriage is expressed in: (a) the voluntary nature of entering into marriage; (b) the necessity of reaching agreement on all essential conditions; (c) the possibility of self- regulation of property relations; (d) the possibility of dissolution at the will of the parties.It is argued that marriage meets the essential characteristics of a contract (voluntariness, mutual consent, the intention to create rights and obligations), but it also possesses specific features, namely: (a) a special composition of subjects; (b) the personal character of relations; (c) a specific subject matter of regulation; (d) the existence of imperative restrictions on contractual freedom.It is established that a prenuptial (marital) agreement differs from classical civil law contracts in the following features: (a) a special composition of subjects; (b) special legal capacity; (c) a specific sphere of regulation; (d) restrictions on contractual freedom by imperative provisions of family legislation.It is substantiated that the conclusion of a prenuptial (marital) agreement entails the following legal consequences in the context of the rights and obligations of the spouses: (a) transformation of the statutory regime of spousal property into a contractual one; (b) individualization of property rights and obligations; (c) the possibility of anticipating the consequences of divorce; (d) enhancement of legal certainty in property relations.The main legal consequences of recognizing the contractual nature of marriage are systematized, namely: (a) expansion of the spouses’ autonomy of will regarding the regulation of property relations; (b) the possibility of self-regulation of relations through a prenuptial agreement; (c) simplification of the divorce procedure by mutual consent; (d) the necessity of adhering to the principle of good faith in exercising rights and performing obligations of the spouses.