The Principle of Freedom of Family Contract and Its Limits

The study of the principle of freedom of contract is of conceptual importance for the development of the theory of family contract and the statutory regulation of these contracts. The relevance of this topic is growing in the current environment when civil legislation is undergoing reforms, and the results of such studies may help to identify the shortcomings of the current regulatory framework and find ways to eliminate them. A comprehensive theoretical analysis of the peculiarities of family relations and their impact on the limits of the principle of freedom of family contract may lay the groundwork for the development of general provisions on family contracts and regulatory structures of their individual types. The purpose of the study is to conduct a systematic analysis of the principle of freedom of contract and its limits in the field of family law. This is necessary to determine the reasons for the mandatory restrictions enshrined in family law and to assess their validity. The article uses the results of scientific research by leading national experts in the field of civil law, analyses current civil and family law, and also uses the current practice of the Supreme Court in the area of application of the principle of freedom of contract. To achieve the research objective, the author used the formal legal method; the analytical method; the method of system analysis; and the dialectical method. The results of the study are presented by individual elements, which made it possible to thoroughly consider each aspect of the peculiarities of the principle of freedom of contract in the field of family law. The first element is devoted to the main methodological aspects of the study of private law principles. It sets out the conceptual provisions in the understanding of the principles of law and their significance for the legal regulation of private relations. The author emphasises that the principles of law enshrined in legislation are imperative rules of direct effect that are binding on the legislator, court and parties to a contract. In the part devoted to the principle of freedom of contract as a universal principle of private law, the author concludes that the principle of freedom of contract is the basic principle of legal regulation for all types of private relations based on legal equality, freedom of expression of will and property independence of the participants, including family relations. Therefore, the third structural element indicates that the principle of freedom of contract absorbs the principle of the possibility of regulating family relations by agreement (contract) between their participants. The author also substantiates the thesis that all family members and relatives have equal freedom in contractual regulation, regardless of whether their family relations are regulated by the family code. The fourth structural element of the article is devoted to limitations of the principle of freedom of contract and forms of their expression, which indicates that limitations of freedom of contract may be contained in other principles of law, moral foundations of society and mandatory provisions of law. The author emphasises that the principles of law and moral foundations of society do not set out clear requirements for the behaviour of subjects, but are generalised, and therefore the practice of the Supreme Court is of great importance for their correct understanding and application. In the last part, the author analyses the peculiarities of restrictions on the principle of freedom of contract enshrined in the mandatory rules of family law, including the study of the peculiarities of restrictions on the principle of freedom of contract which exist when choosing a counterparty, type, terms and form of a family contract. Particular attention is paid to the reasons for such restrictions. The author proves that they are determined by the specifics of family relations and the objectives of their legal regulation. A comprehensive analysis of the peculiarities of the principle of freedom of family contract, its limits and the reasons for their consolidation allowed the author not only to express his position on controversial theoretical issues (correlation of the concepts of ‘contract’ and ‘agreement’, expediency of limiting the freedom of marriage contract by the prohibition to regulate personal non-property relations, etc. This article will be useful for scholars, postgraduate students, representatives of public authorities and research centres specialising in the issues of contractual regulation of family relations