Grense aan kontrakvryheid vir eggenote én voornemende eggenote? (deel 2)

Recognition of party autonomy is of paramount importance if a society is premised on a recognition of the constitutionally guaranteed right to freedom of expression, which entails the duty to accept the burdens of the consequences of that freedom of choice. This principle had lately been recognised by the privy council: "We must assume that each party to a properly negotiated agreement is a grown up and able to look after him or herself" (MacLeod v MacLeod 2009 1 All ER 851 869). In the small family circle as nucleus of society, the Roman-Dutch common law had since time immemorial recognised this aspect of party autonomy in acknowledging the competence of prospective spouses to agree to terms of their antenuptial contract that deviate significantly from the default community of property regime. Under the guise of protecting the interests of the same spouses (as well as third parties) it was, however, up till 1 November 1984 impossible for a married couple to adjust or alter their agreed matrimonial property regime during the persistence of their marriage - as if the marital status magically inhibited their previously recognised cognitive abilities. Since that date the terms of their matrimonial property regime may be altered by spouses, but only via a cumbersome and costly procedure that involves the high court. The reported case law does not seem to indicate that this procedure has often been used of late.