Study On The Application Of Contractual Codification By Reference To Marital Agreements

In recent years,with the economic development and the penetration of the principle of autonomy into the field of marriage and the family,the number of marital agreements has proliferated and couples often set up their rights and obligations between themselves by means of an agreement.Article 464(2)of the Civil Code provides for the application of the contractual codification to marital agreements,but also sets the prerequisite for such application,i.e."in accordance with their nature",in the absence of identity law provisions.However,it is difficult to determine the exact meaning of "nature" on the basis of the text of this provision alone,and there are no relevant legal documents that provide a specific interpretation of "by reference to its nature".It is therefore necessary to analyse the provisions of paragraph 2 of Article 464 of the Civil Code in more detail in order to grasp the legislative meaning of this provision,its legal nature and the specific meaning of "apply by reference to its nature",so as to give direction to the application of the contractual codification to marriages.Not all marriage-related agreements can be referred to the Contracts section,but those that can be referred to the Contracts section must,by their nature,meet the three main factors of being autonomous in the field of marriage and family,being more property-based and being contractual in nature.On the one hand,due to the ethical and compulsory nature of marriage and the family,the State must impose certain restrictions on autonomy in this field in order to maintain the ethical order in the field of marriage and the family.Therefore,any agreement relating to marriage that is contrary to the legal regime of marriage and family,that undermines the ethical basis of marriage and that restricts the personal rights of the spouses does not fall within the scope of the autonomy allowed by law and should be excluded from the application of the contractual codification in the first place.On the other hand,since the Contracts section of the Civil Code is a part of property law,it was established to regulate the safety of transactions and the order of market transactions,rather than to regulate family ethics.Therefore,agreements relating to marriage that can be referred to the Contracts section must be status-property agreements,and the agreements must be more property-based than status-based.On the other hand,since the reference is to the provisions of the Contracts section,the marital agreement must be contractual in nature,and agreements on purely domestic arrangements between spouses do not fall within the scope of the Contracts section of the Civil Code.In determining whether a specific marriage agreement can be governed by a specific rule of the Contracts section,attention should be paid to whether the legal effect of the application of the provisions of the Contracts section is conducive to maintaining the harmony and stability of the marriage and family,the interests of vulnerable groups in the marriage and family,and the relationship between the safety of market transactions and the ethical order.It is also important to analyse the similarities between the nature of the marriage agreement in question and the nature of the provisions to be applied by reference,and to determine whether the legal effect of applying the rules of the contract codification would conflict with the values pursued by matrimonial and family law,so as to make a cautious decision.This article therefore analyses in detail the criteria for the application of the contractual codification to specific types of marital agreements,such as fidelity agreements,marital gift agreements and divorce agreements,and summarises the legal application of different types of marital agreements.