Matrimonial regime
Encyclopedia
Matrimonial regimes, or marital property systems, are systems of property
ownership
between spouse
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
. 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.). In Common law
countries, the default and only matrimonial regime is separation of property, though some U.S. states, known as community property
states, are an exception.
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 agreement
s. 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. 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.
Separate property systems:
Community property systems:
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
ownership
Ownership
Ownership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties. The concept of ownership has...
between spouse
Spouse
The term spouse generally refers to a partner in a marriage:* Husband, referring to a male partner* Wife, referring to a female partner* In some usages, a partner in a civil union, domestic partnership or common-law marriage- See also :* Bride...
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
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
at the end of the marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
. Matrimonial regimes are applied either by operation of law or by way of prenuptial agreement
Prenuptial agreement
A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other...
in Civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
countries, and depend on the lex domicilii
Lex domicilii
The lex domicilii is the Latin term for "law of the domicile" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied....
of the spouses at the time of or immediately following the wedding
Wedding
A wedding is the ceremony in which two people are united in marriage or a similar institution. Wedding traditions and customs vary greatly between cultures, ethnic groups, religions, countries, and social classes...
. (See e.g. Quebec Civil Code
Civil Code of Quebec
The Civil Code of Quebec is the civil code in force in the province of Quebec, Canada. The Civil Code of Quebec came into effect on January 1, 1994, except for certain parts of the book on Family Law which were adopted by the National Assembly in the 1980s...
and French Civil Code, arts. 431-492.). In Common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries, the default and only matrimonial regime is separation of property, though some U.S. states, known as community property
Community property
Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions...
states, are an exception.
Civil-law and bijuridical jurisdictions, including Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
, Louisiana
Louisiana
Louisiana is a state located in the southern region of the United States of America. Its capital is Baton Rouge and largest city is New Orleans. Louisiana is the only state in the U.S. with political subdivisions termed parishes, which are local governments equivalent to counties...
, France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
, South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
, Italy
Italy
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
, Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, Switzerland
Switzerland
Switzerland name of one of the Swiss cantons. ; ; ; or ), in its full name the Swiss Confederation , is a federal republic consisting of 26 cantons, with Bern as the seat of the federal authorities. The country is situated in Western Europe,Or Central Europe depending on the definition....
, and many others, have statutory
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
default matrimonial regimes, in addition to or, in some cases, in lieu of regimes that can only be contracted by prenuptial agreement
Prenuptial agreement
A prenuptial agreement, antenuptial agreement, or premarital agreement, commonly abbreviated to prenup or prenupt, is a contract entered into prior to marriage, civil union or any other agreement prior to the main agreement by the people intending to marry or contract with each other...
s. Generally, couples marry into some form of community
Community property
Community property is a marital property regime that originated in civil law jurisdictions and is now also found in some common law jurisdictions...
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
Civil law notary
Civil-law notaries, or Latin notaries, are lawyers of noncontentious private civil law who draft, take, and record legal instruments for private parties, provide legal advice and give attendance in person, and are vested as public officers with the authentication power of the State...
or other public officer solemnizing the marriage. Five countries, including the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
, 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.
Separate property systems:
- separation of property - all property, pre-marital or marital, is owned separately. (Fr séparation de biens, Sp separación de bienes, Du scheiding van goederen, Ger Gütertrennung)
- separation of property with equitable distribution - in instances of inequality between spouses, an underprivileged spouse may be awarded some of the dominant spouse's property by the courts.
- accrual system - marital property is owned separately during the marriage, but after marriage (divorce, death of a spouse), the net assets are lumped together as property in joint tenancy and divided. (Fr participation aux acquêts, Sp participación, Du aanwasbedeling, Ger Zugewinngemeinschaft)
Community property systems:
- community of property - only marital property is owned in joint tenancy, save for gifts and inheritances. (also known as a ganancial community of property or conjugal partnership of gains (Philippines)) (Fr communauté réduite aux acquêts, Sp sociedad de gananciales, Du gemeenschap van aanwinst van goederen, gemeenschap van vruchten en inkomsten, Ger Errungenschaftsgemeinschaft)
- community of profit and loss - similar to above but liabilities ("loss") are separate. (Du gemeenschap van winst en verlies)
- community of personal and marital property - community consisting of marital property and pre-marital personalty. (Fr communauté de meubles et acquêts, Ger Fahrnisgemeinschaft).
- limited community of property - similar to community of property but with certain marital property being separate. (Fr communauté de biens limitée, Du beperkte gemeenschap van goederen)
- universal community of property - all pre-marital and marital property is owned in joint tenancy. (also known as absolute community of property (Philippines)) (Fr communauté universelle, Sp comunidad absoluta de bienes, Du algehele gemeenschap van goederen, Ger Gütergemeinschaft)