A contract, regulating financial relations between marital spouses, was until recently not implemented in the Slovenian legal order. Spouses were rigidly limited by a cogent regime. In the recent years, however, aspirations to introduce such a contract have emerged, since it has become clear that a cogent regime is inconsistent with the development of todays society and moder standards of human rights protection, even more so in the light of the prevailing legal principles of autonomy and dispositivity within Slovenian tort law. Autonomous establishment of private legal relationships is an inherent part of general individual liberty, and any state intervention must be in compliance with the principle of proportionality. Furthermore, we all too often forget about the double nature of marital relations, which is on the one hand intimate, and on the other hand a business relationship between partners. By enabling such fianancial agreements the distressing, emotionally exhausting divorce proceedings are shortened and facilitated. The presence of typical elements of family law in the contracts in question merely forms a basis for restriction of contractual liberty to protect vounerable parties. Nevertheless, the protection can, in accordance with the principe of proportionality, be easily achieved through measures of lesser severity than those of absolute prohibition of prenuptial agreements, and therefore total exclusion of spousal autonomy.
|
