Anticipated regulatory agreement on economic compensation and the powers of the family judge

Abstract

This paper analyzes how private autonomy behaves in the context of economic compensation, particularly in relation to the principle of the pro-tection of weaker spouse, which applies to this matter through the application of the article 3 of the Civil Marriage Act (LMC). The regulatory agreement on economic compensation can be reached either out of court-it must be recorded in a notarial deed– or in court –it takes the form of a settlement. In any case, the consent of the judge hearing the divorce case will always be required, as this is a legal requirement in Article 63 of the LMC. It is therefore a freedom of contract protected by the jurisdictional authority. Our opinion is that the approval process of this agreement includes a substantive review by the judge of it, who is vested with corrective powers over the content of the agreement, if he deems it inadequate. A conclusion like this is based on the classification of the agreement as a procedural legal transaction and on the analogical application –based on the principle of protection of the weaker spouse– of article 31 LMC, which provides the requirements for the regulatory agreement in the context of a judicial separation by mutual consent and which obliges the judge to complete or rectify the agreement if it is incomplete or insufficient. In order to achieve this, we proposed a double level of judicial control, as well as the need to protect not only the beneficiary spouse, but also the person obligated to pay the agreed compensation.