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Kaunas University of Applied Sciences, Литва
Участник первенства: Национальное первенство по научной аналитике - "Литва";
The paper analyses the problem, which is relevant, both theoretically and practically, since it tries to disclose the definition and significance of the regulation of legal property relations between spouses by analysing laws, various scientific and legal literary works related to this topic as well as court practice.
Keywords: marriage, spouses, property relations, legal regime of spouses’ property.
Marriage is also defined as an economical institution, which is credited with important financial advantages (Cruz, 2001), because it provides different economical and social benefits. That includes tax exemptions, inheritance, child and spouse maintenance, social security and immigration.
The marital property regime or property relationship sets out the real right status of each spouse’s entire property (including the matter of belonging of the items of property under the sole ownership of one spouse or in the joint ownership of spouses), the procedure for administration (use and disposal) of the property, and its possible restrictions in view of the other spouse’s interests, liability to creditors who are third persons, as well as rules for division of property upon termination of the proprietary relationship. The objective of the marital property regime is ? pursuant to the accentuation selected by the legislator ? to balance the various, often conflicting interests: the personal interests of spouses versus general interests, the interests of the husband versus those of the wife; the interests of spouses versus those of third persons (creditors, successors). The world practice knows a large number of marital property regimes, which can be broadly generalised into two basic models: separate property and joint property regimes. However, these do not occur in the pure form, because the interests of the society and of an individual require a combination of the elements of both models (Hegnauer, 1998).
The object of the paper is the regulation of spouses’ property legal relations.
The purpose of the paper is to analyse the doctrinal and practical (in the court practice) principles of regulation of legal property relations between spouses.
The methods applied in the paper include the generalisation of scientific literature analysis, the systematic and comparative analysis, the analysis of legislative acts and the logical analytical method.
In Lithuania spouses’ property relations are regulating by the Civil Code. The Church’s attitude is based on the preparation of marriage, through its soul and spiritual values.
The Civil Code of the Republic of Lithuania covers the duty of spouses to support each other morally and financially and to contribute toward the common needs of the family or the needs of the other spouse. The issues of mutual maintenance should be also related to this non-property duty of spouses.
The Civil Code of the Republic of Lithuania distinguishes two types of legal property regimes: statutory and contractual. The general principle indicated in Article 3.81 provides that the property of spouses will be subject to the statutory legal property regime, if the spouses have not concluded a marriage contract. Therefore, the main element of the marriage contract is selection of legal property regime. Article 3.104 of Family Law provides that the spouses have the right to change the statutory regime and to choose one of three types:
1) Property acquired both before and during the marriage will be the individual property of each spouse;
2) Individual property acquired by a spouse before the marriage will become joint community property after the registration of the marriage;
3) Property acquired during the marriage will be partial community property. Property in this paragraph is considered as the entire property or only it’s certain part or specified chattels. Property of spouses consists of property acquired during the marriage and the individual property of each spouse acquired before the marriage.
Any assets will be considered to be family assets owned by either spouse before or during the marriage, which may be used only to meet the needs of the family, in order to „ ...avoid violation of interests of spouse in good faith and under-age children of the family “(Adomavi?ius, 2002).
The legal regime of family assets will not be applied to the assets acquired and used collectively or to the joint assets of individuals, who have not registered their partnership. In the event the marriage is terminated but the spouses have under-age children, the legal regime of family assets will be transferred to their under-age children.
In neighbouring Poland likewise in Lithuania property relations of spouses may be regulated by laws or a contract. This type of a contract (Intercyza) may be concluded before and after the commencement of the marriage. This contract will be concluded if one of the spouses does not wish property relations to be determined by the common statutory procedure. Spouses may choose among three kinds of marriage contracts:
1) Contract expanding provisions of co-operation;
2) Contract limiting provisions of co-operation;
3) Contract distinguishing co-operation and identifying the assets as individual property of each souse.
Finnish civil law provides that the assets owned by a spouse by the right of ownership before the commencement of the marriage are his or her individual property; a spouse will have a right to acquire personal property during the marriage as well (Marriage act…2001).
According to the civil law of the Czech Republic the joint community property consists of:
a) Assets acquired by one or both spouses during the marriage, except the assets devolved to a spouse by succession or gift;
b) Assets liabilities of one or both spouses arising during the marriage, except the assets liabilities, which are directed towards the assets that belong entirely to one of the spouses(Act of the Czech Republic… 1964).
The United States of America issued the Uniform Prenuptial Agreement Act in 1983, which was afterwards accepted by 27 states, while the rest of the States regulated the conclusion of a marriage contract by other laws. This act regulates the conclusion of prenuptial agreements; meanwhile the conclusion of postnuptial agreements has not been regulated by a separate law. However, the similar principles of prenuptial agreement have been applied to them as well. A prenuptial agreement is considered as an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. In parallel, the postnuptial agreement is concluded after the commencement of the marriage.
Hungarian Family Code laid the foundation for the system of separate property between spouses. Each spouse owns and controls his or her own property during the marriage and, on dissolution, each takes out what belongs to him or her. Separate property is property, which belongs to each of the spouses. In conformity with article 28 of Family Code regarding separate property of spouses, the following matters are considered:
- Possessions before the marriage;
- Property presented to one of the spouses during the marriage;
- Property inherited by a spouse during the marriage;
- Individual possessions for personal use;
- According the sec.31 the spouses may voluntarily divide their property themselves. In this case, they would not go to court. A lawyer or notary must certify such a decision by the spouses. After dividing common property, it becomes separate property (D?czi, 2005).
The labour of the spouses may be of any type: individual or joint, direct or indirect, as long as it creates a new value (Kora?, 2006; Alin?i?, 2006). Thus, indirect contribution – labour that does not directly create a new value but enables the other spouse to increase the value of the property (e.g., taking care of the children, doing housework, providing moral support) – is considered to be a contribution to the community of property (?ar?evi?, 2005). Legally, the spouses are co-owners of the community of property in equal parts, unless they have agreed otherwise.
In Spain CC Art. 1334 (old version) has been swept aside by the reform of family law; spouses can now conclude every kind of contract with each other.
The Dutch legal matrimonial property regime, which recognises complete community of property, is unique in Europe. The principle of community of property is simple: both parties become owners of all assets gained before and during marriage. Still, there are some exceptions, such a as property acquired pursuant to a hereditary succession, a testamentary disposition, the vesting of a beneficial interest subject to a testamentary obligation of a gift, and pension rights (Boele-Woelki, 1997).
Under the Italian legal matrimonial system both spouses own property (immovable and movable) jointly during marriage, regardless of whether or not the property was purchased jointly or separately. Property belonging personally to a spouse (e.g., by gift or inheritance), or of a strictly personal use, or property used in a particular profession (such as a business established and managed by either spouse) are not included. Profits from property during marriage and income from the separate profession of each spouse are owned separately by each spouse during marriage, but on dissolution of the community, they become part of the community of property. When the community of property comes to an end, each party becomes the owner of 50% of the family assets. Separate ownership of property can be proved “by any means”, otherwise property is presumed to be owned jointly (Ceschini, 2002).
The German system of separation during marriage with equalization of accrued gains upon divorce, provides for the statutory regime called the community of gains. Upon the termination of the regime by divorce each spouse is under a duty to account for the increase of his or her property between the beginning and the end of the regime. The difference between the resulting amounts will be split, and the spouse whose increase was less than the other’s will have the right in personam to claim up to one half of the difference from the other. The only possibility of departing from the rule is if the claimant spouse culpably fails to promote the economic or other interests of the matrimonial venture during the marriage. Therefore, the claim must be defeated or curtailed on the grounds of gross inequity. Also, the judge may give weight to other facts, such as adultery or cruelty (Schweppe, 2002; Martiny, 2005).
Under Austrian law, if the marriage is terminated, the spouses are entitled to share each other’s wealth (Verschraegen, 2001; Anatolskaja, 2000). if spouses reach no agreement, the court has to decide upon the application of the division of their property according to the principle of equity. Assets are to be divided, taking into account the contributions of each spouse to the acquisition of the assets, children’s welfare and the debts connected to the expenses of conjugal life, including maintenance, housekeeping, the upbringing of children and assistance in general. The judge can order the transfer of property or expectant rights, of movables and even of real estate, if an equitable partition cannot be achieved otherwise (Rechberger, 2003). The general quota determined by the court is 50:50. However, the quotas 1:2 or 1:3 are also possible, depending on the financial possibilities of the spouses or the triple burden thereof.
When a marriage is dissolved under the Law of Greece, each spouse may make a claim for a distribution of profits and gains deriving from the property of the other spouse, to which he or she has contributed. On such occasions, every kind of assistance, direct or indirect, could be taken into account. Such assistance can include the performance of the household work, help given to the other’s profession, the psychological strengthening of the spouse, the creation of a pleasant family ambiance enabling the other spouse to be very efficient in his/her profession, providing ideas for the development of business activities, and the improvement of social relations which influence favourably the other spouse’s profession (Moustraira, 2003).
A marriage contract may be declared null and void on the general grounds for the nullity of transactions and specific grounds for the nullity of marriage contracts. One of the specific grounds for the nullity of the contract may be the following: “…if the agreement is in serious breach of the principle of equality or is especially unfavourable for one of the spouses”. All provisions of a marriage contract can not be inconsistent with the imperative rules of law, good morality or public order. Since the essential condition for the validity of the marriage contract is the marriage itself, the marriage contract will be terminated on the termination of the marriage; however, the declaration of the marriage contract as null and void does not make the marriage invalid.
In the course of time more and more countries legitimate the agreements between spouses or prospective spouses regarding some specific issues, which are mostly related to the assets, since a larger number of spouses or individuals intended to get married are inclined to solve particular issues rising from the marriage individually and, thus, to avoid the statutory regulation of these questions.
In the USA, a marriage contract must be concluded in free will and in good faith. The courts will take into consideration the circumstances of contract making, i.e. whether the contractual parties have been aware of their rights, the individual property and debts of each spouse and the legal consequences of the conclusion of the contract (USA case: McHugh v. McHugh, 1980). The Civil Code of France also stipulates the requirement of honesty during the conclusion of the contract (Walzer et. al., 2004); however, in practice this requirement is seldom breached since the participation of the notary during the conclusion of the contract is mandatory.
Some states provide against the inclusion of issues related to the maintenance rights into the content of marriage contract (USA case: In re Marriage…1979). However, the tendency in the court practice to allow the estimation of these questions in the marriage contract has been noticed (USA case: Osborne…1981). Meanwhile, in France the maintenance issues cannot be disputed in the marriage contracts.
1. The legal regime of family assets will emerge only after the commencement of the marriage and will be applied to the property relation of spouses until the termination, nullity of the marriage or separation of the spouses.
2. The statutory legal regime of family assets will be applied if a marriage contract is not concluded. Moreover, this type of legal regime will be applied to the property acquired by the spouses prior to the Civil Code coming in force.
3. A marriage contract is a civil legal transaction; however, it is characterised by some specific features, for example, the object of the contract is the property relations between spouses based on mutual trust, loyalty and respect; the contract may be concluded both before and after the registration of the marriage; the circle of persons allowed to conclude a contract is strictly defined; the requirements for the form and content of the contract have been tightened and specific grounds for nullity of marriage contracts have been stipulated.
4. The analysed practice of foreign countries confirms the specificity of the marriage contract. With respect to the specific features of the marriage contract it should not be identified with other commercial transactions.
5. The general principles of contracts are applied to a marriage contract as a civil legal transaction including the freedom principle of a contract. However, the application of this principle is limited due to the specific non-commercial character of the marriage contract and its potential impact on the mutual relations of spouses.
6. Since the property relations of spouses regulated by the marriage contract have direct links with their personal non-property relations, it may be concluded that the marriage contract should be attributed to personal contracts.
Further to the provisions on marital property relationships, regulation of the obligation to maintain the family and the mutual right of representation of spouses also plays an important role in the proprietary relations of spouses. These norms are to be distinguished from the marital property regime, insofar as their content is not to define the real right status of property, but rather obligations under the law of obligations, concerning which property relations are irrelevant. These obligations are also of such importance from the viewpoint of the family as a whole that they should apply asperceptive norms to any arrangement of the proprietary relations of spouses, so that the possibility to deviate from these under a marital property contract would be quite limited.
The 1952 Family Code - still in force after a series of amendments.
Art. 149 2003 Family Act.
CC art. 1323, 1458 and 1541, new version.