Nuptial (Marital) Agreement in Serbian and European Law.

Serbia (among the last countries in Europe) has introduced the institution of the nuptial (marital) agreement into the substantive legislation. Family Law of the Republic of Serbia from 2005 eliminated the difference between the substantive law of the Republic of Serbia and practically all European comparative legislatures with regard to the possibility of modification of the statutory marital-property regime. However, the aforementioned institution is not for the first time found in the Serbian law. Its existence and application in Serbia of the nineteenth and twentieth century had relatively long tradition. The period following the Second World War brought about the prohibition of modification in the statutory regime of common property of spouses. Under the Family Law, for the first time after more than six decades, it is established that spouses and future marital partners shall be entitled to change statutory regime of the common spousal property and enter into legal transactions which will pro futuro regulate their property relations both in the matters of the existing as well as the future property. The institution of nuptial (marital) agreement enables the prospective as well as the existing marital partners to arrange for the separate-property regime and to regulate their relations in accordance with the principle of freedom of contract, without any formal restrictions existing until then. Theoreticians have recognised a number of systems of property relations between spouses in the European law. Principally, their considerations boil down to the three, i.e., the four major approaches. „The first system includes merging of the property, the second one refers to the separate property system and the third one is the joint property system or ownership in common“. Individual theoreticians also refer to the fourth system -- „the deferred community property regime (i.e. the community-of-property regime) This paper underlines that nuptial (marital) agreements do not have the same function in reform countries as in other countries across our continent. In the societies undergoing transition the family legislation generally maintained the joint property regime. Accordingly, in these legal systems the nuptial (marital) agreements attempt to satisfy the aspirations of spouses to establish the separate property regime within their property relations. In majority of significantly economically developed countries, the property relations between spouses are based on the separate property system (as a statutory property regime), and spouses may agree on the community-of-property by means of contract. [ABSTRACT FROM AUTHOR]