Matrimonial regime
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.). 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 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. 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
- separation of property - all property, pre-marital or marital, is owned separately. (Fr séparation de biens, Sp separación de bienes, Du scheiding van goederen, koude uitsluiting, Ger Gütertrennung, It separazione dei beni)
- 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 (South Africa), deferred community of property (Canada) - 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 deelgenootschap, Afrik aanwasbedeling, Ger Zugewinngemeinschaft, (Swiss) Errungenschaftsbeteiligung, It partecipazione agli acquisti, Ptbr comunhão de aquestos).
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, It comunione degli acquisti)
- community of profit and loss - similar to above but liabilities ("loss") are separate. (Du gemeenschap van winst en verlies, Afrik gemeenskap van wins en verlies)
- community of personal and marital property - community consisting of marital property and pre-marital personalty. (Fr communauté de meubles et acquêts, Du gemeenschap van inboedel, 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, Swiss Ger Ausschlussgemeinschaft)
- 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 allgemeine Gütergemeinschaft, It comunione universale dei beni)