Matrimonial Regime
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Matrimonial regimes, or marital property systems, are systems of
property Property is a system of rights that gives people legal control of valuable things, and also refers to the valuable things themselves. Depending on the nature of the property, an owner of property may have the right to consume, alter, share, re ...
ownership Ownership is the state or fact of legal possession and control over property, which may be any asset, tangible or intangible. Ownership can involve multiple rights, collectively referred to as '' title'', which may be separated and held by dif ...
between
spouse A spouse is a significant other in a marriage. A female spouse is called a wife while a male spouse is called a husband. Married The legal status of a spouse, and the specific rights and obligations associated with that status, vary signific ...
s 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 Marriage, also called matrimony or wedlock, is a culturally and often legally recognised union between people called spouses. It establishes rights and obligations between them, as well as between them and their children (if any), and b ...
. 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 A wedding is a ceremony in which two people are united in marriage. Wedding traditions and customs vary greatly between cultures, ethnicity, ethnicities, Race (human categorization), races, religions, Religious denomination, denominations, Cou ...
. (See e.g. Quebec Civil Code and French Civil Code, arts. 431-492.). In most
common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
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 Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
, 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 Quebec is Canada's List of Canadian provinces and territories by area, largest province by area. Located in Central Canada, the province shares borders with the provinces of Ontario to the west, Newfoundland and Labrador to the northeast, ...
,
Louisiana Louisiana ( ; ; ) is a state in the Deep South and South Central regions of the United States. It borders Texas to the west, Arkansas to the north, and Mississippi to the east. Of the 50 U.S. states, it ranks 31st in area and 25 ...
,
France France, officially the French Republic, is a country located primarily in Western Europe. Overseas France, Its overseas regions and territories include French Guiana in South America, Saint Pierre and Miquelon in the Atlantic Ocean#North Atlan ...
,
South Africa South Africa, officially the Republic of South Africa (RSA), is the Southern Africa, southernmost country in Africa. Its Provinces of South Africa, nine provinces are bounded to the south by of coastline that stretches along the Atlantic O ...
,
Italy Italy, officially the Italian Republic, is a country in Southern Europe, Southern and Western Europe, Western Europe. It consists of Italian Peninsula, a peninsula that extends into the Mediterranean Sea, with the Alps on its northern land b ...
,
Germany Germany, officially the Federal Republic of Germany, is a country in Central Europe. It lies between the Baltic Sea and the North Sea to the north and the Alps to the south. Its sixteen States of Germany, constituent states have a total popu ...
,
Switzerland Switzerland, officially the Swiss Confederation, is a landlocked country located in west-central Europe. It is bordered by Italy to the south, France to the west, Germany to the north, and Austria and Liechtenstein to the east. Switzerland ...
, and many others, have
statutory A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
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 A community is a social unit (a group of people) with a shared socially-significant characteristic, such as place, set of norms, culture, religion, values, customs, or identity. Communities may share a sense of place situated in a given g ...
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 and the participation regime that spouses can decide to adopt. Five countries, including the
Netherlands , Terminology of the Low Countries, informally Holland, is a country in Northwestern Europe, with Caribbean Netherlands, overseas territories in the Caribbean. It is the largest of the four constituent countries of the Kingdom of the Nether ...
, 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 Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...
of
England England is a Countries of the United Kingdom, country that is part of the United Kingdom. It is located on the island of Great Britain, of which it covers about 62%, and List of islands of England, more than 100 smaller adjacent islands. It ...
and the
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
throughout most of the 19th century. The idea was described in
William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, Justice (title), justice, and Tory (British political party), Tory politician most noted for his ''Commentaries on the Laws of England'', which became the best-k ...
'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 , while a married woman had the status of . These are English spellings of medieval Anglo-Norman phrases (the modern standard French spellings would be and , literally ). 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 * Separate Property: All property, pre-marital or marital, is owned separately. (, , , , ) * Separate Property with Equitable Distribution: Under this system, when substantially more property acquired during a marriage is owned by one spouse (e.g. title to all marital property is held in the husband's name only), the courts will make an equitable distribution of the richer spouse's property at death or dissolution of the marriage. The object is to prevent widow(er)s and divorce(e)s, and their minor children, being cast into poverty by the death or divorce of the richer spouse. * Accrual System (
South Africa South Africa, officially the Republic of South Africa (RSA), is the Southern Africa, southernmost country in Africa. Its Provinces of South Africa, nine provinces are bounded to the south by of coastline that stretches along the Atlantic O ...
) or Deferred Community Property (
Canada Canada is a country in North America. Its Provinces and territories of Canada, ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, making it the world's List of coun ...
): Marital property is separately owned during the marriage, but after marriage (divorce, death of a spouse), the net assets are lumped together as property in joint tenancy and divided. (French , Spanish , Dutch , Afrikaans , Standard German , Swiss German , Italian , Brazilian Portuguese ). * Common law system in the United states: the traditional common law system in the United States did not recognize "marital property."American Law Institute. ''Principles of the law of family dissolution: Analysis and recommendations''. § 4.02 (May 2022 Update). Regardless of the length of marriage, each spouse retain ownership over property titled under that spouse's name and property acquired with that spouse's own earnings. However, a strict common law system is no longer the system of any U.S. state as of 2022, with most states instead classifying marital property and separate property, and distributing marital property based on the principle of equitable distribution. ** Tenancy by the Entirety (
United States The United States of America (USA), also known as the United States (U.S.) or America, is a country primarily located in North America. It is a federal republic of 50 U.S. state, states and a federal capital district, Washington, D.C. The 48 ...
): "TBE" is a separate property system in which spouses are treated as one person, each having an equal ownership interest in the subject property. In some U.S. states, tenancy by the entirety is limited to realty (e.g. the couple take title to the family home as tenants by the entirety) while other states make it available for both realty and personality (e.g. the couple can also take title to the family automobile as tenants by the entirety).


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 , in French , and in German or . 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. In France, it was introduced by a 1965 law, inspired by the German model. The participation system is also available in Spain, Portugal and many Latin American countries.


See also

* Community property * Prenuptial agreement *'' Simmons v. Simmons'' (1998)


References

{{Authority control Civil law (legal system) Marriage Property law