Introduction
In property law a major area of contention is family property. Spouses may be left unprotected in the occurrence of break ups in marriage if the only rights they have is the evidence of acquired property while in marriage even with the contributions they have made in the family and the time and efforts put for the welfare of the family. Injustices may come up in cases where there is no family or financial contributions made by spouses as much as they have rights to each other’s property.
The approach of community property as a choice for the division of assets generally is therefore the main issue in family law. The paper seeks to evaluate the matrimonial property regimes in France and their background is what will be analyzed and the brief assessment of how the two systems work. The system of community property and the complete separation of property system is what will be compared and assessed.
Matrimonial contracts and property regimes is hard for any person to absorb, however it is important to try and understand them as we do not know when they will cross our paths.
There are two kinds of regimes, that is; primary and basic. The basic regime explains the obligations and mutual rights of married couples and contains some basic rules that bring a household together like the matrimonial home. There is no variation for the basic regime. The secondary regime main aspect is that of married life upon divorce or death or even separation of the marriage.
Community property
The community in general is not a co-ownership system, a partnership or legal entity. The community is an estate with the sole purpose of shouldering the expenses that come up from the marriage. Assets are assessed using three basic criteria, that is: nature, source and time. An example is not all assets gotten just before marriage are found in the community. It could also be property gotten while in the marriage either through inheritance or by gift is not necessarily in the community. And the instruments or tools required to handle a profession may not be found in the community.
The property belongs to the regime of the community if not proven to be separate. Upon death, divorce or the final days of a marriage, either spouse should get compensation in lieu or has a right to one half of the community property. Once a couple gets married in France, they choose a certain financial option either involuntarily or voluntarily. They devise or choose a marital regime consciously that will fit their needs and if an agreement is not reached the law states that the legal regime will apply hence the couple will have chosen the laid down law in Art. 1400 et seq. Of the Civil Code.
1965 is the year the current system was launched and it is subjected to acquit only. The liabilities and debts in the marriage are subject to the community. The assets are revenue and all the goods gained separately or together in the course of the marriage. The right to handle jointly held property lies on each of the spouses and in case of any issues the spouse that had an upper hand is answerable to the other. In case either spouse has a different profession, then he or she has sole management.
Property falls under three types of funds, namely; community fund that is joint property; the fund of the wife that is her sole property; and the fund for the husband that is his sole property. With no regard to the financial contribution, either spouse has a right to half of the property acquired during the marriage and once the marriage comes to an end either through divorce or death, the community fund is divided and noted.
According to Amos and Walton certain principles need to be considered in order to know which property is for which fund, a good illustration is organizing it in line with its nature and origin may lead to the allocation to a certain fund. The debts accumulated in the course of the marriage are what comprise the liabilities of the community. The debts may be paid off by the creditor using the jointly held assets unless the creditor is acting in bad faith or the spouse who has a debt was involved in fraud. Unless a debt involves the education or welfare of the children and household expenses, then the individual property of a spouse is not to be used to pay off creditors.
The main aim of the legal regime is to give a solid base to the management of joint property and not to offer to either spouse a form of independence to his or her separate properties and incomes. Where there is liquidation either spouse may be held accountable to the community due to failure of collecting the earnings from his or her separate properties or having utilized them in a fraudulent manner for the last 5 years. Even though the spouses have various and joint powers of administration over the community some acts of importance can only be fulfilled jointly. Approval is required for asset alienation that needs registration requirements, mortgage or sale of commercial enterprises, gifts too. There has to be another approval before the partner that is contracting can go collect the amount meant for purchasing. In the long run the content and the matrimonial home will acquire special protection under the French law.
Different devices protect the fund that belongs to the community. If by any chance one of the parties does not fulfill their duties and obligations in the aim of destroying the interests of the family, the family court judge can stop the defaulting spouse from disposing his or her community or own property without an agreement from the fellow spouse or the judge may order for immediate measures of protection. In the case of a pending divorce suit, the judge may order for any necessary steps to save the rights of the common property and the spouse as well.
Termination of the community property regime occurs upon divorce, judicial separation or death. The assets of the couple are then categorized and equally distributed. The separation or divorce context is also one way for payment of maintenance and in death cases the living spouse can have a right to share the separate property of the deceased.
Separation property
In the separation of property regime, either spouse keeps their assets in their own names without claiming the assets that belong to the partner. But according to non-marital rules the couple can own a share of joint property and they may keep property jointly.
The recent position of France as an application of the ratified treaty seems to be that those who are not residents can change their regime of matrimony and chose a community regime without going to court, though court registration is a must.
The philosophical and theoretical view absorbed in marriage is what will determine the choice of the property system the spouses choose. Justification of separation of assets may only be due to the argument that the individual’s rights should not be tampered with unless they have consented. To be precise, marriage should not affect a person’s right to gain property for his or her own benefit or stop them from being owners of properties or the right to continue gaining property. From this viewpoint the spouses are seen to have agreed to share their lives in the day to day living, but in terms of acquiring wealth they should not be positioned in an inferior way to persons who are not married. Essentially in the spirit of free will if either spouse is not able to handle his or her financial security, or he or she decides to focus on other priorities he or she cannot be subsidized or compensated by the other spouse. If needs are a problem then it’s an issue that can be handled with the help of the state.
As much as the protection and promotion of individualism may be incorporated as a genuine philosophical and social goal, there are consequences to be faced. According to Freed doctrines of individualism assume that both couples in a marriage accumulate wealth equally but it is clear that this is not so according to the social reality of things. In a real sense in a marriage without children either of the spouses will have to subsume a career for the needs of the family.
For financial and social reasons for example socialized roles of gender or the fact that women earn a bit more less than the men, because the woman will forfeit her career, hence her ability to accumulate wealth is impeded. Even though the woman gets a chance to get back to work she might not perform as well as she would have before due to a few factors like, ageing, lack of knowledge on new ways of performing tasks and lack of seniority.
Treating the financial vulnerability of the woman due to her choice as an individual is to avoid the fact that the decision most likely was an agreement between her and her spouse. In this case both spouses have agreed on dividing the labor in between them that working; one at home while the other earns in order to provide at home. It is rare for the home making spouse to pass up the opportunity to earn an income for personal gain unless he or she knew they will share in the personal gains of their partner hence gaining some financial security; and it would be unfair for the income earning spouse to think otherwise. If this is the balanced understanding of how marriage works it would be an injustice for only one of the spouses to shoulder the costs of decisions made. The approach to pure separation of property pours all the negative consequences of the bargain made by a spouse to the other and does not consider their spouses complicity in the arrangement.
Even with arguments that division of property pushes women to endeavor to acquire assets of their own, the evidence is not conclusive. Since the passing of the Married Women’s Property Act of 1882, the approach of separation of property is what has been dominant in the UK, and even with this it is only recently that women in large numbers are maintaining jobs even after marriage. This inclines that the regime of separation of assets in itself is not likely to improve the participation of married women in the labor market. Women, more so those working in banking or the public sector are forced to stop working after marriage. This trend is encouraged by the constitution that emphasizes on women working at home. Therefore it is a bit difficult to say for sure whether there is a link between the family financial needs, gender equality attitudes, regime of separation or the participation of women in employment and its rise.
Comparisons
The purpose of the community regime in the beginning was for the management of funds, for the provision of a mechanism where both spouses contributed to the expenses in the family and to give security to the wife as the dependent weaker spouse. One known benefit of the community regime is that the rights of the not so well to do spouse, in most cases the wife were increased as she would gain a share in the wealth of the family once the union is dissolved. This is looked at as a compensation for work done by the wife at the time she was with the family, for example catering to the needs of the children and her husband. Community regimes enhance equality between men and women by making sure there is equal respect and rights for what each spouse has contributed to the marriage.
Though very different in nature, community of property and separation of assets was introduced to protect the interests of spouses financially and more so the woman. The existing mission is to protect the rights and interest of both parties. The only variation is that the community regime aims at protecting both spouses by giving both individuals a share of the acquired property by either spouse during the marriage, while the separation regime aims to protect the interests and the rights of each spouse separately that she or he acquires in his or her own name.
Nowadays it is rare to have pure separation of assets as most are in line with judicial discretion for property redistribution for justice and its interest on marriage breakdown. It is ironic however how the separation regime that was meant to protect women, has been seen to work against them due to factors that are sociological: the traditional role of women as homemakers means many of them are not able to acquire wealth, hence they are being punished by a system that states they are not allowed to share the wealth of the husband.
The main goal for redistributive power it to make sure a fair division of assets is made and the interests of the dependent family such as that of the children and the wives are met at the same time maintaining flexibility to be able to handle different family circumstances. A shares in assets are non-existent until or unless awarded by a court of law. Just being married to someone will not guarantee you a particular share or a share, division of assets is mostly based on domestic or financial contribution but the main emphasis is on the idea of partnership. The community regime in contrast, each spouse has some sort of share in the property in marriage from the beginning. In the separation regime neither spouse has control over the other spouse’s property.
The assumption that the couple is willing to share everything from the beginning without any evidence to dispute the facts, is what makes the community regime popular. From the beginning both spouses are aware of what their entitlements are asset wise and the efforts put into the marriage will eventually serve the interests of both of them. Neville notes that the community regime promotes and is solely based on sharing as it enhances the economic and emotional partnership in marriage.
It can be argued against the concept of community regime however, that the involvement of the family agreements and property rights is too deep and is not an issue that the state needs to interfere with. This argument though is not substantiated because as the state already involves itself in a lesser and a greater way in the mechanisms of redistribution. The powers of statute assessed above outweigh the scheme written out in the Matrimonial Homes Bill 1993. The only difference is that the bill seems to have been sure of its application and scope as illustrated above, the main hardships linked with the current laws is the potential for uncertainty and arbitrariness.
If the policies behind the current legislations are tested, it is obvious that community principles have replaced legislative policies. The Succession Act of 1965 curtails the freedom of spouses of testamentary disposition, the 1989 1995 1996 Acts allows redistribution of all property owned likely to benefit either of the spouses, the Family Home protection Act of 1976 restricts the rights for sale of the family home though without varying ownership. It has been forwarded that going through with this intervention on formalization and precise legal manner would not brush in any way with the statutory policy; it might indeed be seen as the peak of such go between. This will push aside the inconsistent rights granted to death, being awarded discretely in case of separation, and not being awarded in any way once the union subsists. It would also go a long way in getting rid of unnecessary delays and the immediate legal costs.
The flexibility the discretionary system is given to individual cases in order to increase justice individually is one of its most favored strong points. The flexibility plays a major role in situations where the wealth cannot fit all parties and especially for the children’s future in the marriage. It is important to gain long term equality and justice between both parties. The flexibility price is high however, in terms of certainty and predictability of the future, and at most as far as reaching to an agreement between the two parties is concerned.
Lack of predictability and principle as submitted here are in no way outweighed by the current system’s flexibility. To date the evidence shows that even if some decisions put into consideration equal asset distribution, in other situations courts are not willing to use their statutory powers to the full. A principled solution is offered in the ownership of marital property where the community lacks in responsiveness. The dependent spouses would be assured of a portion of the assets of the family and would not have to go through litigation issues.
The community of property regime just like the approach for separation of assets rests solely on equality. In the community regime, property rests on the equality concept as each spouse’s contribution in the marriage is equally valued. The husband and wife are similar to business partners and they both engage and contribute to the success of the marriage and none of the contributions are supposed to be valued more than the other. Both spouses have an equal share in the profits within the marriage and an equal take in the ventures within the marriage to pinpoint it otherwise unfairly devalues one of the spouse’s contributions and reinforces the assumption that only goods worth money or money contributions are of importance.
Contribution, status and equality are now subsumed into the wider meaning of partnership and sharing. It has been debated that the true justification and explanation for sharing property in marriage is the availability of principles of sharing and expectations that are common. In McClean’s view it means the separation regime equality comes about as each spouse has a personal right and interest to acquire wealth for the purpose of individual benefit though this kind of equality may be more apparent than real.
Neither contribution nor marriage in other words can solely entitle a spouse to the sharing of property but a share can be achieved where the spouses are willing to act as if the marriage is a partnership and they are willing to jointly own property. In this case the criticism of the individual approach is not based solely on the real consequences of the approach of separation, but instead it is argued that the aspect of individualism in marriage is a guiding principle in relation to property in families or in marriage. There is division fundamentally between those who are in favor of communal sharing and those in favor of individualism. For those in favor of communal sharing it would be wrong to assume that marriage only consists of individuals and that the rules would apply all round including to total strangers.
The approach here is not how to add up the losses or profit which might need reallocation or compensation but it is the realization that spouses in marriage will most likely think in terms of joint gains and needs and not individual. As much as there are situations where joint thinking was not the intention, it would be appropriate to debate that it is more convenient to come up with an understanding in the marriage than having pure individualism and communalism in cases where there is no evidence of property ownership.
The concept of sharing goes down to human dignity unlike individuals who argue that separate ownership of property breeds responsibility and equality hence one’s dignity, people in society failure to rewarding both spouses during the marriage as undermining of one’s dignity. To be precise the dignity of women is seriously undermined through the legal view that parties that do not earn contribute much less in the union.
The laws states in common law fail to recognize the wife as a partner or helper to the husband in the common venture of accumulating fortune and creating a family and take from her the place she rightfully deserves.
If sharing or commonality is allowed as the everyday basis of marriage then it is only right that the law should add in principles of sharing by taking on a form of property sharing rather than the approach of separation. Then what is really needed is a principled policy decision that lays down the terms of how this agreement will be implemented. That is, should the sharing vary between individuals or should it be automatic and pre-determined?
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