DOCSLIB.ORG

The Financial Consequences of Divorce in a European Perspective

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Financial Consequences of Divorce in a European Perspective Unedited book chapter, published in Scherpe (ed.), European Family Law, Vol. III, Edward Elgar Publishing 2016 - http://www.e-elgar.com/shop/european-family-law The Financial Consequences of Divorce in a European Perspective Jens M. Scherpe 1. INTRODUCTION AND OVERVIEW ............................................................................................................. 2 2. THE DEFAULT RULES ON FINANCIAL CONSEQUENCES OF DIVORCE.......................................................... 3 2.1. COMMUNITY OF PROPERTY JURISDICTIONS...................................................................................................... 4 2.1.1. Universal Community of Property ................................................................................................ 4 2.1.2. Community of Acquests ................................................................................................................ 5 2.2. SEPARATION OF PROPERTY/PARTICIPATION SYSTEMS ........................................................................................ 8 2.2.1. Deferred Community of Property ................................................................................................. 9 2.2.2. Statutory Compensation Jurisdictions ........................................................................................ 10 2.2.2.1. Community of Accrued Gains (Zugewinngemeinschaft) .............................................................................. 11 2.2.2.2. Participation in Acquests .............................................................................................................................. 12 2.2.3. The Hybrid System of Austria – Rule-based discretion ............................................................... 14 2.3. JURISDICTIONS WITHOUT A MATRIMONIAL PROPERTY REGIME ......................................................................... 16 2.3.1. England and Wales ..................................................................................................................... 18 2.3.2. Ireland ........................................................................................................................................ 22 2.4. FRANCO-GERMAN AGREEMENT ON AN OPTIONAL MATRIMONIAL PROPERTY REGIME OF A COMMUNITY OF ACCRUED GAINS 25 2.5. PRINCIPLES OF EUROPEAN FAMILY LAW REGARDING PROPERTY RELATIONS BETWEEN SPOUSES .............................. 29 2.5.1. General Rights and Duties .................................................................................................................. 30 2.5.2. The Participation in Acquisitions Regime ........................................................................................... 30 2.5.3. The Community of Acquisitions Regime ............................................................................................. 32 2.6. COMPARISON – A QUEST FOR FAIRNESS? ...................................................................................................... 35 2.6.1 Comparing the incomparable? ....................................................................................................... 35 2.6.2 Different paths to fairness .............................................................................................................. 36 2.6.2.1 Different views on equality and fairness ................................................................................................ 36 2.6.2.2 Discretion as a means to an end ............................................................................................................ 38 2.6.2.3 Holistic view or separate remedies ........................................................................................................ 38 2.6.3 Similar perceptions of fairness ........................................................................................................ 39 2.6.3.1 Sharing ................................................................................................................................................... 40 2.6.3.2 Need ....................................................................................................................................................... 41 2.6.3.3 Compensation ........................................................................................................................................ 42 3. MARITAL AGREEMENTS ......................................................................................................................... 42 3.1. GENERAL REMARKS ................................................................................................................................... 42 3.1.1. Terminology ....................................................................................................................................... 42 3.1.2. Fundamental differences in the function of marital agreements ...................................................... 43 3.2. LEGAL EVALUATION OF MARITAL AGREEMENTS AT THE TIME OF CONCLUSION ....................................................... 45 3.2.1. Marital Agreements are ‘special’ ....................................................................................................... 45 3.2.2. Formal requirements and legal advice ............................................................................................... 46 3.2.3. Disclosure ........................................................................................................................................... 47 3.2.4 Time requirement ................................................................................................................................ 48 3.3. LEGAL EVALUATION OF MARITAL AGREEMENTS AT THE TIME THEY ARE INVOKED .................................................... 49 3.3.1. The substantive ‘fairness challenge’ to marital agreements ............................................................. 49 3.3.2. Fairness in marital agreements .......................................................................................................... 50 3.4. FINAL COMPARISON – PROTECTION OF AUTONOMY AND PROTECTION FROM AUTONOMY ..................................... 52 4. SUMMARY – IS THERE A EUROPEAN REGIME FOR THE FINANCIAL CONSEQUENCES OF DIVORCE? ........ 53 Unedited book chapter, published in Scherpe (ed.), European Family Law, Vol. III, Edward Elgar Publishing 2016 - http://www.e-elgar.com/shop/european-family-law RECOMMENDATIONS FOR FURTHER READING .............................................................................................. 55 1. Introduction and overview This chapter deals with the substantive law1 of the financial consequences of divorce.2 These consequences can (but do not have to) include a division of property, certain periodical3 or lump sum payments, a sharing or division of pension rights (and similar) and the allocation of the use of the marital home and other assets. No ‘top-down’ European Family Law exists in relation to any of these,4 as the European Union has no competence to regulate such matters, and no cases on the financial consequences of divorce have yet been decided by the European Court of Human. This chapter therefore is a purely comparative one. The financial consequences of divorce are regulated in very different ways amongst the European jurisdictions. Even the very basic understanding of the nature and structure of the financial consequences of divorce appears to be fundamentally different. The most obvious contrast here is between the common law jurisdictions of England and Wales, Northern Ireland and Ireland5 and the continental European jurisdictions of the civilian tradition.6 Only the latter know statutory matrimonial property regimes which play a pivotal role in the financial consequences of divorce. Without doubt, the division/allocation of (matrimonial and other) property upon divorce is also central to the common law jurisdictions but it is embedded in a wholly different system and approach; it is part of a holistic exercise which considers all the financial consequences of divorce at the same time. By contrast, jurisdictions with a matrimonial property regime (irrespective of whether the regime applies by default or was chosen by the spouses) separate the various consequences outlined above into different remedies, usually beginning with a division of (matrimonial) property. The financial 1 For Private International Law instruments see the chapter by Dieter Martiny in this volume. 2 Much and, in some cases, most or even all of what is described and analysed in this chapter also applies to certain other legal regimes like the civil partnership of the jurisdictions of the United Kingdom or the registered partnerships of the Netherlands and the Nordic Countries. 3 Mostly so-called spousal maintenance, which often also is referred to as alimony. In the following the term maintenance will be used. 4 For an overview of international instruments touching this area see K Boele-Woelki/F. Ferrand/C. González Beilfuss/M. Jänterä-Jareborg, N. Lowe, D. Martiny and W. Pintens, Principles of European Family Law Regarding Property Relations Between Spouses (Intersentia 2013), pp. 18-24. 5 On which see 2.3. below. 6 On which see 2.1. and 2.2. below. Unedited book chapter, published in Scherpe (ed.), European Family Law, Vol. III, Edward Elgar Publishing 2016 - http://www.e-elgar.com/shop/european-family-law consequences of divorce in these jurisdictions is therefore commonly said to rest on several ‘pillars’,7 whereas
Load more

Recommended publications
  • The Legal Regime Governing the Economic Situation of Married Women in Iran. a Dialogical View from Quebec Fateme Zeynodini Supe
    The Legal Regime Governing the Economic Situation of Married Women in Iran. A Dialogical View from Quebec Fateme Zeynodini Supervisor : Prof. Jean-François Gaudreault-DesBiens Faculty of Law University of Montreal 2019 Table of Contents : ACKNOWLEDGMENT ................................................................................................ 10 INTRODUCTION .......................................................................................................... 11 ABSTRACT ................................................................................................................................. 11 MAIN QUESTIONS AND STRUCTURE OF THE RESEARCH ....................................................................... 16 PROBLEM STATEMENT ................................................................................................................. 17 THEORETICAL FRAMEWORK AND METHODOLOGY ............................................................................. 20 RESEARCH LIMITATIONS AND FEATURES .......................................................................................... 22 PART I: INTRODUCTION TO IRAN’S LEGAL SYSTEM AND ITS MATRIMONIAL REGIME ........................................................................................................................ 26 1 CHAPTER ONE: IRAN’S LEGAL SYSTEM AND THE DIFFERENT SOURCES OF IRANIAN LAW ......................... 27 1.1. History ..................................................................................................................... 27 1.1.1
    [Show full text]
  • Education Materials
    The Down Town Association 60 Pine Street New York, NY 10005 Co-Sponsor: American Academy of Matrimonial Lawyers – New York Chapter INTERNATIONAL FAMILY LAW APRIL 28 - 29, 2017 WAINWRIGHT ROOM FRIDAY PROGRAM 8:00 AM – 9:00 AM REGISTRATION & BREAKFAST 9:00 AM – 9:10 AM INTRODUCTION NANCY ZALUSKY BERG, MINNEAPOLIS, MINNESOTA 9:10 AM – 10:25 AM COMMON LAW, CIVIL LAW & MATRIMONIAL REGIMES WILLIAM LONGRIGG, LONDON, ENGLAND CHARLOTTE BUTRUILLE-CARDEW, PARIS, FRANCE SANDRA VERBURGT, THE HAGUE NETHERLANDS 10:25 AM – 11:40 AM INTERNATIONAL PRENUPTIAL AGREEMENTS RACHAEL KELSEY, EDINBURGH, SCOTLAND CHARLOTTE BUTRUILLE-CARDEW, PARIS, FRANCE OREN WEINBERG, TORONTO, CANADA THOMAS SASSER, WEST PALM BEACH, FLORIDA DONALD SCHUCK, NEW YORK, NEW YORK ERIC WRUBEL, NEW YORK, NEW YORK 11:40 AM – 12:00 PM DISCUSSION AND BREAK 12:00 PM – 12:50 PM INTERNATIONAL SURROGACY ISSUES AND COMPARATIVE ANALYSIS OF THE USE OF GENETIC MATERIAL THROUGHOUT THE WORLD MICHAEL STUTMAN, NEW YORK, NEW YORK NANCY ZALUSKY BERG, MINNEAPOLIS, MINNESOTA 12:50 PM – 1:00 PM DISCUSSION 1:00 PM – 2:00 PM LUNCH AT THE DOWN TOWN ASSOCIATION 2:00 PM – 3:15 PM ENFORCEMENT, DOMESTICATION AND REGISTRATION OF ORDERS AND THE TREATMENT OF ALIMONY WORLDWIDE CHARLOTTE BUTRUILLE-CARDEW, PARIS, FRANCE LAWRENCE KATZ, MIAMI, FLORIDA NICHOLAS LOBENTHAL, NEW YORK, NEW YORK WILLIAM LONGRIGG, LONDON, ENGLAND THOMAS SASSER, WEST PALM BEACH, FLORIDA 3:15 PM – 3:30 PM BREAK 3:30 PM – 4:20 PM HAGUE CONFERENCE ON PRIVATE INTERNATIONAL LAW: HOW IT WORKS AND WHAT IT DOES DANIEL KLIMOW, U.S. DEPT. OF STATE ROBERT ARENSTEIN, NEW YORK, NEW YORK WILLIAM LONGRIGG, LONDON, ENGLAND 4:20 PM – 4:30 PM DISCUSSION AND CLOSING REMARKS The AAML NY Chapter is accredited by the NYS CLE Board as a CLE provider for live presentations for the period October 2, 2014 through October 1, 2017.The total number of hours of CLE credit approved by the NYS CLE Board for this program is 6.5 hours in Areas of Professional Practice.
    [Show full text]
  • Matrimonial Regime’ in Common Law Countries, Or How to Fit a Square Peg Into a Round Hole by Delphine Eskanazi and Inès Amar
    The Impossible Existence of the Concept of ‘Matrimonial Regime’ in Common Law Countries, or How to Fit a Square Peg into a Round Hole By Delphine Eskanazi and Inès Amar The concept of matrimonial regime is fundamental to while French judges mathematically implement the rules French family law, particularly in the event of divorce. that apply to liquidating matrimonial regimes, it is different for judges in common law countries, who divide property Under European law, the concept of “matrimonial according to more subjective and discretionary criteria. regime” was defined in the De Cavel I1 decision and was also repeated verbatim in the recent European “Matrimonial In light of this reality, the real issue is the fact that the Property Regimes” Regulation2 as including “not only prop- notion of matrimonial regime is a concept that simply does erty arrangements specifically and exclusively envisaged by not exist in common law countries. certain national legal systems in the case of marriage, but also any property relationships between the spouses and in Indeed, the French practice shows that, very often, the their relations with third parties, resulting directly from the particularities of the rules of common law countries regard- matrimonial relationship, or the dissolution thereof.” ing the division of spouses’ property at the time of divorce are disregarded, since, by using a very artificial fiction, In principle, there is also a fundamental distinction attempts are made to equate these rules with those of a between matrimonial regime and spousal support. The similar matrimonial regime in French law. landmark ECJ decision, Van den Boogaard,3 effectively de- fines the two concepts according to the objective sought by French practitioners of private international family law the decision in question.
    [Show full text]
  • Family Law 2020 a Practical Cross-Border Insight Into Family Law
    International Comparative Legal Guides Family Law 2020 A practical cross-border insight into family law Third Edition Featuring contributions from: Arbáizar Abogados Corbett Le Quesne Millar McCall Wylie LLP, Solicitors Ariff Rozhan & Co Diane Sussman Miller du Toit Cloete Inc Asianajotoimisto Juhani Salmenkylä Ky, Fenech & Fenech Advocates Pearson Emerson Meyer Family Lawyers Attorneys at Law FSD Law Group Inc. Peskind Law Firm Attorney Zharov’s Team Fullenweider Wilhite Quinn Legal Borel & Barbey Haraguchi International Law Office Ruth Dayan Law Firm Boulby Weinberg LLP International Academy of Family Lawyers Satrio Law Firm Ceschini & Restignoli (IAFL) TWS Legal Consultants Chia Wong Chambers LLC Kingsley Napley LLP Villard Cornec & Partners Cohen Rabin Stine Schumann LLP Lloyd Platt & Co. Wakefield Quin Limited Concern Dialog Law Firm MEYER-KÖRING Withers ICLG.com International ISBN 978-1-912509-96-6 ISSN 2398-5615 Comparative Legal Guides Published by glg global legal group 59 Tanner Street London SE1 3PL United Kingdom Family Law 2020 +44 207 367 0720 www.iclg.com Third Edition Group Publisher Rory Smith Publisher Paul Regan Contributing Editor: Sales Director Florjan Osmani Charlotte Bradley Senior Editors Kingsley Napley LLP Caroline Oakley Rachel Williams Sub-Editor Jenna Feasey Creative Director Fraser Allan Chairman Alan Falach Printed by Stephens and George Print Group Cover Image www.istockphoto.com Strategic Partners ©2019 Global Legal Group Limited. All rights reserved. Unauthorised reproduction by any means, PEFC Certified digital or analogue, in whole or in part, is strictly forbidden. This product is from sustainably managed forests and controlled sources PEFC/16-33-254 www.pefc.org Disclaimer This publication is for general information purposes only.
    [Show full text]
  • Matrimonial Property Regimes: Yesterday, Today and Tomorrow H
    Osgoode Hall Law Journal Article 5 Volume 11, Number 3 (December 1973) Matrimonial Property Regimes: Yesterday, Today and Tomorrow H. R. Hahlo Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Article Citation Information Hahlo, H. R.. "Matrimonial Property Regimes: Yesterday, Today and Tomorrow." Osgoode Hall Law Journal 11.3 (1973) : 455-478. http://digitalcommons.osgoode.yorku.ca/ohlj/vol11/iss3/5 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. MATRIMONIAL PROPERTY REGIMES: YESTERDAY, TODAY AND TOMORROW By H. R. HAHLO* I Introduction Some general observations by way of introduction may not be out of place. First, the laws that govern the position of women in any given country at any given time do not necessarily reflect the factual position. Until well into the nineteenth century wives in all European countries were in law sub- ject to the well-nigh absolute authority of their husbands and there were, no doubt, husbands who exploited their legal superiority to the fullest. It is safe to assume, however, that since early days most couples lived together very much as they do today, and that, in the past as at present, authoritarian hus- bands dominated submissive wives, while wives of strong character ruled feeble husbands. Nor are women in office, trade or business a novel phe- nomenon. During the Middle Ages women often administered the family estates while their men-folk were away at war or at court.
    [Show full text]
  • Polygamous Marriages and the Principle of Mutation in the Conflict of Laws
    Polygamous Marriages and the Principle of Mutation in the Conflict of Laws M. L. Marasinghe* I. Introduction Polygamy is considered primarily a legal concept, giving rise to a particular legal status, but in fact polygamy symbolises a parti- cular cultural and religious heritage.1 Religious creeds traceable to Islam2 limit the plurality of wives to four. Orthodox Hinduism has no such limitation3 and Buddhism, both of the Mahayana and the Theravada schools, sets out no rules at all to govern the institution of marriage; the Mahayanists practice polygamy mainly as a cultural tradition which is not prohibited by religion. African native law and custom espouse polygamy, both as a religious fact and as a cultural facet of African tribal life.4 It must therefore be emphasized that when immigrants from the Third World arrive in Canada, they bring with them the belief that polygamy is not only defensible, but also approved by their culture and religion. Equally well rooted in Western culture and religion is the institu- tion of monogamy represented by common law tradition. The accommodation of polygamy and its manifold consequences present a fundamental difficulty for the common law system. It is therefore proposed to examine the present position of polygamy in the com- mon law world in order to determine what changes were necessary to accommodate this institution. An enquiry of this nature is partic- ularly relevant in Canada for at least two reasons: first, immigra- tion from the Third World in recent years has produced a large number of new immigrants whose cultural and religious heritage * Professor of Law, University of Windsor, Barrister and Solicitor (Osgoode Hall) and Barrister-at-Law of the Inner Temple, London, England.
    [Show full text]
  • The Search for a Legal Framework for the Family Home in Canada and Britain Conway, H
    Osgoode Hall Law School of York University Osgoode Digital Commons Research Papers, Working Papers, Conference Osgoode Legal Studies Research Paper Series Papers 2014 No Place Like Home: The eS arch for a Legal Framework for the Family Home in Canada and Britain Heather Conway Philip Girard Osgoode Hall Law School of York University, [email protected] Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/olsrps Recommended Citation Conway, Heather and Girard, Philip, "No Place Like Home: The eS arch for a Legal Framework for the Family Home in Canada and Britain" (2014). Osgoode Legal Studies Research Paper Series. 25. http://digitalcommons.osgoode.yorku.ca/olsrps/25 This Article is brought to you for free and open access by the Research Papers, Working Papers, Conference Papers at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Legal Studies Research Paper Series by an authorized administrator of Osgoode Digital Commons. OSGOODE HALL LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES Research Paper No. 39 Vol. 10/ Issue. 09/ (2014) No Place Like Home’: The Search for a Legal Framework for the Family Home in Canada and Britain Conway, H. & Girard, P. (2004). No place like home’: The search for a legal framework for the family home in Canada and Britain. Queen’s Law Journal, 30, 715-771. Heather Conway & Philip Girard Editors: Editor-in-Chief: Carys J. Craig (Associate Dean of Research & Institutional Relations and Associate Professor, Osgoode Hall Law School, York University, Toronto) Production Editor: James Singh (Osgoode Hall Law School, York University, Toronto) James Singh (Osgoode Hall Law School, Toronto – Production Editor) This paper can be downloaded free of charge from: http://ssrn.com/abstract=2434712 Further Information and a collection of publications about Osgoode Hall Law School Legal Studies Research Paper Series can be found at: http://papers.ssrn.com/sol3/JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=722488 Osgoode Legal Studies Research Paper No.
    [Show full text]
  • Louisiana's New Matrimonial Regime Law: Some Aspects of the Effect on Real Estate Practice William H
    Louisiana Law Review Volume 39 | Number 2 Community Property Symposium Winter 1979 Louisiana's New Matrimonial Regime Law: Some Aspects of the Effect on Real Estate Practice William H. McClendon III Repository Citation William H. McClendon III, Louisiana's New Matrimonial Regime Law: Some Aspects of the Effect on Real Estate Practice, 39 La. L. Rev. (1979) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol39/iss2/5 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. LOUISIANA'S NEW MATRIMONIAL REGIME LAW: SOME ASPECTS OF THE EFFECT ON REAL ESTATE PRACTICE William H. McClendon, HI* Louisiana's new Matrimonial Regime Law' incorporates changes which will have a profound effect on real estate prac- and which will require a re-examination of the tice in Louisiana 2 law by the judiciary and the Bar to pinpoint those practices now prevailing that do not comply with its provisions. Major conceptual changes include the granting to spouses of a legal capacity to contract with each other; the redefinition of the nature of each spouse's interest in community property; and the establishment of new requirements for the manner in which that interest may be alienated or encumbered. The real estate * Member of the Louisiana Bar Association. This article, written in the Fall of 1978, does not reflect any changes in the law since that date.
    [Show full text]
  • Common Law Unions Choosing to Live Together Without
    COMMON CHOOSING TO LIVE TOGETHER LAW UNIONS WITHOUT BEING MARRIED Are you sharing your life with another person Be an informed common law spouse. without being married or in a civil union? A common law union, also known as a de facto union, + Cannot prevent a spouse who is the sole owner of With notarized documents, you will be KNOW YOUR RIGHTS is a conjugal lifestyle. It occurs when two people live the family home from selling, renting, assigning or well protected. PROTECT YOURSELF! together for some time and present themselves as a mortgaging it, or even disposing of the assets used by couple, without being legally married or in a civil union. the family. People who live in a common law union are known as The same principle applies to a rented family dwelling “common law spouses.” Consult your notary! when the lease is signed by only one spouse. Even after living together for many years, common law spouses do not have the same rights and obligations Common law spouses can still make an agreement as couples who have decided to get married or enter into between themselves to define the terms of their union a civil union. and the consequences of a possible separation. As long as their agreement complies with the law, common law spouses can grant each other whatever RIGHTS AND OBLIGATIONS spousal rights they wish! OF COMMON LAW SPOUSES The law generally does not grant common law spouses Exceptions the same protections as those given to married or civil To learn more about common law unions, Some laws give common law spouses the visit www.uniondefait.ca/en union couples.
    [Show full text]
  • Married Couple, Single Recipient: Understanding the Exclusion of Gifts and Inheritances from Default Matrimonial Regimes
    Canadian Journal of Family Law Volume 31 Number 2 2018 Married Couple, Single Recipient: Understanding the Exclusion of Gifts and Inheritances from Default Matrimonial Regimes Laura Cárdenas Follow this and additional works at: https://commons.allard.ubc.ca/can-j-fam-l Part of the Family Law Commons, and the Law and Society Commons Recommended Citation Laura Cárdenas, "Married Couple, Single Recipient: Understanding the Exclusion of Gifts and Inheritances from Default Matrimonial Regimes" (2018) 31:2 Can J Fam L 1. The University of British Columbia (UBC) grants you a license to use this article under the Creative Commons Attribution- NonCommercial-NoDerivatives 4.0 International (CC BY-NC-ND 4.0) licence. If you wish to use this article or excerpts of the article for other purposes such as commercial republication, contact UBC via the Canadian Journal of Family Law at [email protected] MARRIED COUPLE, SINGLE RECIPIENT: UNDERSTANDING THE EXCLUSION OF GIFTS AND INHERITANCES FROM DEFAULT MATRIMONIAL REGIMES Laura Cárdenas In most Canadian jurisdictions, default family property law regimes exclude gifts and inheritances from the property that will be divided between divorcing couples. In Quebec, this exclusion is not only present in the default regime (the partnership of acquests) but rendered mandatory by the public order nature of the “family patrimony”—a construct determining the property that will be shared equally between spouses upon their divorce. This article examines default regimes of family property in Ontario and Quebec and analyzes the justifications provided by the provincial legislators for excluding gifts and inheritances from the mass of assets that will be divided between the spouses.
    [Show full text]
  • Matrimonial Regimes W
    Louisiana Law Review Volume 49 | Number 2 Developments in the Law, 1987-1988: A Faculty Symposium November 1988 Matrimonial Regimes W. Lee Hargrave Repository Citation W. Lee Hargrave, Matrimonial Regimes, 49 La. L. Rev. (1988) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol49/iss2/11 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. MATRIMONIAL REGIMES W. Lee Hargrave* PUBLIC RECORDS AND TRANSFER OF COMMUNITY IMMOVABLES A community property regime comes into existence upon marriage' although the fact of the marriage is not shown in the conveyance or mortgage records. The rules regulating management of community assets thus come into play even though nothing in these public records indicate that a community exists. Especially important, since 1980, is the rule that one spouse acting alone cannot alienate, encumber, or lease com- munity immovables regardless of the name in which those assets are listed in the public records. 2 The basic notion is that a contract of marriage3 is not among those documents that must be recorded to affect 4 third persons. It is true that a registry of marriage licenses exists, along with a return that indicates whether the marriage was celebrated, but failure to complete the registry requirements does not invalidate the marriage and the resulting community property regime. Even if the license is Copyright 1988, by LOUISIANA LAW REVIEW.
    [Show full text]
  • The Judicial Management of Cohabitation of Spouses Under Legal Separation
    Journal of Law and Judicial System Volume 3, Issue 1, 2020, PP 39-60 ISSN 2637-5893 (Online) The Judicial Management of Cohabitation of Spouses under Legal Separation Munderere jean damascene* Lecturer and consultant in law and political science Rwanda *Corresponding Author: Munderere jean damascene, lecturer and consultant in law and political science Rwanda. ABSTRACT The disagreement between the spouses is the cause of the separation and on the basis of one of the statutory causes or their consent, the judge grants them the legal separation. Within the present study entitled “the management of cohabitation of spouses under legal separation in Rwandan law”, there were examined the effects of the cohabitation of spouses in separation, and there was found out that spouses in separation from the body are exempt from the duty of cohabitation, but the separated spouses retain all other duties arose marriage. The consequences of cohabitation during the period of separation of bodies are multiple and greatly affect the woman and the child born of this cohabitation. In order to deal with these kinds of problems, it is necessary that the judge who ordered the suspension of the duty of cohabitation be aware of the resumption of cohabitation. If the suspension of cohabitation requires a legal procedure, its purpose should also be law and not in fact.Otherwise the reason will be given to the one who has evidence before the judge to justify the resumption of cohabitation or not, and yet the evidence is easier to find for the husband than for the wife. In our view, we recommend that the resumption of common life be known by the judge beforehand.
    [Show full text]