Contract as a source of regulation and an instrument for the protection of family rights in Ukraine

Abstract

The article, prepared as a result of studying the scientific heritage of Academician V.V. Luts, reveals the essence of the contract as a source of legal regulation and an instrument for the protection of family rights in Ukraine. The following methods of scientific cognition were used in the course of the study: formal-logical - to reveal the definitions of «contract» and «agreement» in family law; formal-legal - to define the concept of contract as a source of regulation of family rights; formal-dogmatic - to define normativity as a feature of an individual contract, which allows considering a contract as a component of the system of sources of regulation of family rights. The article reviews and analyzes the approaches developed by national scholars to the definition of the concept of contract as a source of individual rules of behavior of participants to family legal relations. The author suggests that the distinction between the terms «agreement» and «contract» is possible by the form of their expression. Participants verbally agree to perform or refrain from performing certain actions in family legal relations and, if they have mutual consent and with the aim of exercising and protecting family rights achieved as a result of verbal agreements, formalize them in a written agreement. It is emphasized that an agreement in the regulation of family legal relations does not change the classical essence laid down in the general provisions of the Civil Code of Ukraine. At the same time, when viewed through the prism of the specifics of family legal relations, a contract acquires qualified features which give rise to the existence of a specialized concept within the generic category of a contract. The author argues that a contract can also be considered as a means of legal protection of family rights. According to the author, the most relevant issues today are the development and legislative consolidation of the basic principles of contractual regulation of family relations; development of a systematization of family law contracts with a description of each contractual structure by analogy with Chapter 10 of the Family Code; and expansion of the possibility of regulating in a family contract the personal non-property rights and obligations of family members and other relatives.