The principle of autonomy of the will and the marriage contract

Stjepanović, Bogdana (2024) The principle of autonomy of the will and the marriage contract. In: Zbornik radova „Pravne praznine i punoća prava“ : XII Naučni skup povodom Dana Pravnog fakulteta, Međunarodni naučni skup održan 28. oktobra 2023. god. na Palama. Pravni fakultet, Istočno Sarajevo, pp. 251-270. ISBN 978-99938-57-85-3

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Abstract

Autonomy of the will is a key principle in the contractual arrangement of property relations between spouses. One of the most complex, but also the most important questions that arise with regard to the conclusion of a marriage contract and in connection with the autonomy of the will of the contracting parties is the problem of the ”dilemma of choice." The "dilemma of choice" consists of a conflict between promoting, on the one hand, women's autonomy and freedom of choice and, on the other hand, protecting women from harmful consequences that would result from the use of autonomy of will in conditions of inequality, i.e., power imbalance. Competent authorities usually assume that the autonomy of the will exists, and it appears as a presumption. This attitude is particularly harmful in terms of the marriage contract because it can result in economic consequences not only for the ”weaker“ contracting party, but also for the children and society as a whole. For this reason, it is necessary to review the principle of autonomy of will and adapt it to the peculiarities of the personal relationship of the con-tracting parties. In this paper, we will examine the application of the principle of autonomy of will to the spouses in a marriage contract, posing a potentially bold yet feasible question and attempting to provide an answer. Namely, is it possible to talk about the autonomy of the will with regard to the spouses who conclude the marriage contract, i.e., one of its manifestos, freedom of contract in the true sense of the word, and can the question of the existence of autonomy of will in this case be viewed in the same way as in regard to the conclusion of legal transactions between persons who are not bound by any previous relationship, or does the validity of a marriage contract need to introduce a new criterion that would enable a fairer outcome?

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