Marital Contracts and Private Ordering of Marriage from the Italian Family Law Perspective 

by Roberta Montinaro

The essay is centred on the role played by private ordering in regulating the financial terms of marriage dissolution. The Italian legal scholars’ attitude regarding this issue has changed over time. It has transformed from a paternalistic perspective, mostly rejecting the spousal parties’ freedom, to a novel view that favours an expanded role for contracts to determine the economic terms of separation and divorce. This process has been prompted by the evolution of family law provisions. Private ordering in marital dissolution poses several issues. It entails the need to establish a clear divide between those aspects that can become the subject of an agreement between the spouses, on the one hand, and what is outside the realm of private ordering, on the other. Private ordering also raises concerns regarding (1) the possible condition of bounded rationality by one of the parties at the time the agreement is concluded and (2) the substantive fairness of the terms agreed upon. The paper shows that scholars tend to tackle those risks by resorting to general contract law rules and principles provided by the Italian legal system. 

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