Matrimonial regime

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Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the end of the marriage. Matrimonial regimes are applied either by operation of law or by way of prenuptial agreement in civil-law countries, and depend on the lex domicilii of the spouses at the time of or immediately following the wedding. (See e.g. Quebec Civil Code and French Civil Code, arts. 431-492.).

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In most common law jurisdictions, the default and only matrimonial regime is separation of property, though some US states, known as community property states, are an exception. Also, in England, the birthplace of common law, pre-nuptial agreements were until recently completely unrecognized, and although the principle of separation of property prevailed, Courts are enabled to make a series of orders upon divorce regulating the distribution of assets.

Civil-law and bijuridical jurisdictions, including Quebec, Louisiana, France, South Africa, Italy, Germany, Switzerland, and many others, have statutory default matrimonial regimes, in addition to or, in some cases, in lieu of regimes that can only be contracted by prenuptial agreements. Generally, couples marry into some form of community of property by default, or instead contract out under separation of property or some other regime through a prenuptial agreement passed before a civil-law notary or other public officer solemnizing the marriage. Many civil law jurisdictions also have other established systems of dividing property, such as separation of property [1] [2] [3] [4] and the participation regime [5] [6] [7] that spouses can decide to adopt.

Five countries, including the Netherlands, have signed on to the Hague Convention on the Law applicable to Matrimonial Property Regimes, which entered into force on 1 September 1992, which allows spouses to choose not only the regimes offered by their country, but also any regime in force in the country where at least one is a citizen or resident or where marital real estate is situated.

Coverture

Coverture (sometimes spelled couverture) was a legal doctrine whereby, upon marriage, a woman's legal rights were subsumed by those of her husband. Coverture was enshrined in the common law of England and the United States throughout most of the 19th century. The idea was described in William Blackstone's Commentaries on the Laws of England in the late 18th century.

Under traditional English common law an adult unmarried woman was considered to have the legal status of feme sole, while a married woman had the status of feme covert. These are English spellings of medieval Anglo-Norman phrases (the modern standard French spellings would be femme seule'single woman' and femme couverte, literally 'covered woman').

A feme sole had the right to own property and make contracts in her own name. A feme covert was not recognized as having legal rights and obligations distinct from those of her husband in most respects. Instead, through marriage a woman's existence was incorporated into that of her husband, so that she had very few recognized individual rights of her own. A married woman could not own property, sign legal documents or enter into a contract, obtain an education against her husband's wishes, or keep a salary for herself. If a wife was permitted to work, under the laws of coverture she was required to relinquish her wages to her husband.

This situation persisted until the mid-to-late 19th century, when married women's property acts started to be passed in many English-speaking legal jurisdictions, setting the stage for further reforms.

Separate property systems

Separate property systems are based on the premise that marriage is solely an interpersonal union

Community property systems

Community property is premised on the theory that marriage creates an economic community between the spouses (who may be same- or opposite-sex) and that the marital property attaches to that interpersonal community, rather than to the spouses themselves. There are several types of community property systems.

Participation system

The participation system is a system of property division among spouses introduced in many civil law jurisdictions. In Spanish it is known as régimen de participación, in French participation aux acquêts, and in German Zugewinngemeinschaft or Errungenschaftsbeteiligung.

The participation system is hybrid matrimonial regime with separation of property during the marriage, along with a right of each spouse to participate in a percentage of profits from acquests (property acquired during marriage) at the time of marital dissolution.

In Germany, it was introduced with the Equality Act of 1957. In Germany and Switzerland, this regime is particularly widespread and is the default regime in the absence of a marriage contract. [7] In France, it was introduced by a 1965 law, inspired by the German model. [6] [9] The participation system is also available in Spain, Portugal and many Latin American countries. [5]

See also

Related Research Articles

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Alimony, also called aliment (Scotland), maintenance, spousal support and spouse maintenance (Australia), is a legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce. The obligation arises from the divorce law or family law of each country. In most jurisdictions, it is distinct from child support, where, after divorce, one parent is required to contribute to the support of their children by paying money to the child's other parent or guardian.

Legal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order. In cases where children are involved, a court order of legal separation often makes child custody arrangements, specifying sole custody or shared parenting, as well as child support. Some couples obtain a legal separation as an alternative to a divorce, based on moral or religious objections to divorce.

<span class="mw-page-title-main">Wife</span> Female spouse; woman who is married

A wife is a woman in a marital relationship. A woman who has separated from her partner continues to be a wife until their marriage is legally dissolved with a divorce judgment. On the death of her partner, a wife is referred to as a widow. The rights and obligations of a wife to her partner and her status in the community and law vary between cultures and have varied over time.

Common-law marriage, also known as non-ceremonial marriage, sui iuris marriage, informal marriage, de facto marriage, more uxorio or marriage by habit and repute, is a marriage that results from the parties' agreement to consider themselves married, followed by cohabitation, rather than through a statutorily defined process. Not all jurisdictions permit common law marriage, but will typically respect the validity of such a marriage lawfully entered in another state or country.

A prenuptial agreement, antenuptial agreement, or premarital agreement, is a written contract entered into by a couple before marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens if their marriage eventually ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse's right to claim an elective share of the estate of the deceased spouse.

Community property also called community of property is a marital property regime whereby property acquired during a marriage is considered to be owned by both spouses and subject to division between them in the event of divorce. Conversely, property owned by one spouse before the marriage, along with gifts and inheritances they receive during marriage, are treated as that spouse's separate property in the event of divorce. In some cases, separate property can be "transmuted" into community property, or be included in the marital estate for reasons of equity. Community property can also be relevant in probate law, during the disposition of a will.

Coverture was a legal doctrine in English common law originating from the French word couverture, meaning "covering", in which a married woman's legal existence was considered to be merged with that of her husband. Upon marriage, she had no independent legal existence of her own, in keeping with society's expectation that her husband was to provide for and protect her. Under coverture a woman became a feme covert, whose legal rights and obligations were mostly subsumed by those of her husband. An unmarried woman, or feme sole, retained the right to own property and make contracts in her own name.

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<span class="mw-page-title-main">Married Women's Property Act 1882</span> United Kingdom legislation

The Married Women's Property Act 1882 was an act of the Parliament of the United Kingdom that significantly altered English law regarding the property rights of married women, which besides other matters allowed married women to own and control property in their own right.

<span class="mw-page-title-main">Same-sex marriage law in the United States by state</span>

This article summarizes the same-sex marriage laws of states in the United States. Via the case Obergefell v. Hodges on June 26, 2015, the Supreme Court of the United States legalized same-sex marriage in a decision that applies nationwide, with the exception of American Samoa and sovereign tribal nations.

<span class="mw-page-title-main">Divorce law by country</span>

Divorce law, the legal provisions for the dissolution of marriage, varies widely across the globe, reflecting diverse legal systems and cultural norms. Most nations allow for residents to divorce under some conditions except the Philippines and the Vatican City, an ecclesiastical sovereign city-state, which has no procedure for divorce. In these two countries, laws only allow annulment of marriages.

The Jewish prenuptial agreement has been developed in recent times with the stated intent of keeping the Jewish woman from becoming an agunah in cases where the husband refuses to grant her a get. Without such an agreement, Jewish marriages cannot be dissolved without the consent and cooperation of both spouses. This new type of prenuptial agreement makes provisions for the possibility of divorce. By setting up rules prior to the marriage in the form of a contract, both spouses have an interest to negotiate a divorce in a dignified manner, and get-refusal is avoided.

In the United States, marriage and divorce fall under the jurisdiction of state governments, not the federal government.

A postnuptial agreement is a written agreement executed after a couple gets married, or have entered a civil union, to settle the couple's affairs and assets in the event of a separation or divorce. It may be "notarized" or acknowledged and may be the subject of the statute of frauds. Like the contents of a prenuptial agreement, provisions vary widely but commonly includes provisions for division of property and spousal support in the event of divorce, death of one of the spouses, or breakup of marriage.

In South Africa, marriage exists in a number of different forms, as a result of the diversity of religions and cultures in the country. A man in South Africa may have more than one spouse but a South African woman may only have one spouse. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples. Since 1998 the law has recognised marriages, including polygynous marriages, conducted under African customary law, as well as religious laws such as Islamic law. In 2006 the South African constitutional court ruled in favour of recognizing same-sex marriage. It is currently the only country in the world to recognise both polygamy and same-sex marriages, albeit not in conjunction.

<span class="mw-page-title-main">Custom of Paris in New France</span> Legal system in force in New France & Lower Canada (1627–1866)

The Custom of Paris was one of France's regional custumals of civil law. It was the law of the land in Paris and the surrounding region in the 16th–18th centuries and was applied to French overseas colonies, including New France. First written in 1507 and revised in 1580 and 1605, the Custom of Paris was a compilation and systematization of Renaissance-era customary law. Divided into 16 sections, it contained 362 articles concerning family and inheritance, property, and debt recovery. It was the main source of law in New France from the earliest settlement, but other provincial customs were sometimes invoked in the early period.

In civil law jurisdictions, marital power was a doctrine in terms of which a wife was legally an incapax under the usufructory tutorship of her husband. The marital power included the power of the husband to administer both his wife's separate property and their community property. A wife was not able to leave a will, enter into a contract, or sue or be sued, in her own name or without the permission of her husband. It is very similar to the doctrine of coverture in the English common law, as well as to the Head and Master law property laws.

In English law, restitution of conjugal rights was an action in the ecclesiastical courts and later in the Court for Divorce and Matrimonial Causes. It was one of the actions relating to marriage, over which the ecclesiastical courts formerly had jurisdiction.

<span class="mw-page-title-main">Community property in the United States</span> Property regime in the United States

Under a community property regime, depending on the jurisdiction, property owned by one spouse before marriage, and gifts and inheritances received during marriage, are treated as that spouse's separate property in the event of divorce. All other property acquired during the marriage is treated as community property and is subject to division between the spouses in the event of divorce. The United States has nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Four other states have adopted optional community property systems. Alaska allows spouses to create community property by entering into a community property agreement or by creating a community property trust. In 2010, Tennessee adopted a law similar to Alaska's and allows residents and non-residents to opt into community property through a community property trust. More recently, Kentucky adopted an optional community property system in 2020, allowing residents and non-residents to establish community property trusts. Finally, Florida adopted a similar law in 2021, allowing citizens and noncitizens to establish community property trusts.

References

  1. ↑ "Código Civil de la Nación Argentina" (PDF). Infojus. Retrieved 16 December 2014.
  2. ↑ "Código Civil de España". Boletín Oficial del Estado . Retrieved 18 December 2014.
  3. ↑ "Código Civil Federal de México" (PDF). Cámara de Diputados de México . Archived from the original (PDF) on 19 March 2015. Retrieved 16 December 2014.
  4. ↑ "Código Civil de Ecuador". Planalto. Retrieved 15 December 2014.
  5. 1 2 Ramos Pazos, René (2007). Derecho de Familia. Santiago: Editorial Jurídica de Chile. pp. 158–160.
  6. 1 2 Herrera Araya, Gloria (2008). Eficacia real del régimen de participación en los gananciales y su influencia en nuestros tribunales de justicia (PDF) (Thesis). Santiago, Chile: University of Chile. Archived from the original (PDF) on 2016-03-04. Retrieved 17 February 2015.
  7. 1 2 Gerhard, Ute (1999). Frauen in der geschichte des rechts (Las mujeres en la Historia del Derecho) (in German). Múnich, Alemania: C. H. Beck. ISBN   3-406-42866-5.
  8. 1 2 3 American Law Institute. Principles of the law of family dissolution: Analysis and recommendations. § 4.02 (May 2022 Update).
  9. ↑ "Código Civil de Francia" (PDF). Legifrance. Retrieved 18 December 2014.
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