VII. The Rights and Obligations of Spouses Concerning Goods

104. If Natural Law is inspected, marital society does not impede both the husband and the wife from retaining the property, usufruct, and administration even of the goods which they had before marriage and which they acquire during marriage. Nevertheless they must concur in the expenses necessarily to be borne on account of common burdens. But it is fitting that the husband either have all administration of goods, or at least aid the wife as much as is necessary for supplying her weakness. - But if positive Law is inspected, in this matter the power of the husband is broader. Hence, by positive Law, various goods of the wife are distinguished. - St. Thomas, 2.2, q. 57, a. 4.

105. The goods of the wife are some dotal, the fruits of which the man enjoys for sustaining the burdens of marriage; others are paraphernal, namely besides the dowry, which the wife has besides the dowry, and which she specially reserves to herself; others common, which by the agreements of the spouses or the determination of law are brought into a certain society. - Before entering marriage spouses can determine under what conditions their goods are to be subject, with certain statutes of law observed. If they have omitted to do these things, the law will supply.

106. Of dotal goods, generally and speaking per se, direct ownership remains in the power of the wife. But the husband has their administration and usufruct. Dotal goods, during marriage, cannot be alienated, nevertheless speaking regularly or ordinarily; for they can be alienated from a grave cause of necessity or utility of the family, and with the consent of each spouse. If the dowry during marriage is increased or perishes, it is increased or perishes for the wife; when marriage has been dissolved, it is to be restored.

Extra-dotal goods are the wife's by full right. Common goods belong by equal right to each; nevertheless the husband has their administration, and receives their fruits for the necessities of the family. - Finally the wife has no ownership of the goods of the husband.

107. From Roman Law. The wife has direct ownership of her own dowry, but the husband has the usufruct and administration. When the man dies, she is preferred to all personal creditors of the husband, and even in life she can juridically seek back the dowry if she fears lest the man become unable to restore it. If the dowry consists in money, or in other things consumable by use, or in appraised things handed over, indeed full ownership of the dowry is assigned to the man, but with the obligation of restoring the value, ownership being transferred in favor of the wife into all the goods of the husband pro rata or according to the quota of her dowry. - The wife has full ownership and administration of paraphernal goods, so that concerning these the husband, when she is unwilling, can dispose of nothing. Hence as regards them the wife in no way depends on the husband. - The property and utility of common goods belong to each spouse; but the administration of the same belongs to the husband alone. But this community of goods can admit various conditions or restrictions, and therefore attention must be paid to the various dispositions of places. - Gury 549; Elbel 69; L. 489; Troplong, della Prescrizione, c. 3, n. 483 seqq.

108. From More Recent Law. We can distinguish first the goods of the wife, the goods of the husband, and common goods.

As regards the goods of the wife, these likewise are either dotal, or extra-dotal, or paraphernal. - Dowry is the goods brought to the husband for sustaining the burdens of marriage. But any goods whatever of the wife not constituted as dowry are held as paraphernal. C. I. 1388, 1425; C. G. 1540, 1575; C. A. 1218. - That there be a dowry it is necessary: 1. that it has been constituted expressly under this name, C. I. 1388; C. H. 1336. Wherefore those things are not dotal which are given to the woman by contract of marriage, unless something else has expressly been provided. But it is otherwise from C. G. 1541. The dowry, however, can comprehend all goods, even future goods, C. I. 1389; C. G. 1542; C. A. 1218, 1227; C. H. 1336, 1337. - 2. That the instrument be drawn up by a notary and, if the dowry is constituted by the spouses themselves, before marriage, C. I. 1382, 1391; C. G. 1394; for after marriage the dowry can neither be constituted nor increased by them. C. I. 1341; C. H. 1338; and from C. G. 1543, neither by others. Cf. C. A. 1225; C. H. 1344. - 3. That the nuptials have been entered from Civil Law. L. 3, de Iure dot.; C. I. 93; C. G. 165; C. A. 44; C. H. 42.

109. He who constituted the dowry must furnish it from his own goods, even if proper goods are not lacking to the woman, C. I. 1392, 1393, 1394, 1395; C. G. 1544, 1545, 1546; C. A. 1224; cf. C. H. 1540, 1341; and he furnishes warranty against eviction, C. I. 1396; C. G. 1547. But the man is not bound to caution for the dowry, unless he is obligated to it by a convention made, or is compelled by sentence of a judge, if the dowry is exposed to danger and the dowry was constituted by him who, the dowried woman lacking it, would be compelled to furnish support. C. I. 1400; C. G. 1550, 1563; C. A. 1245. Cf. C. H. 1345, 1349, 1358.

110. Of those things which are given for the sake of dowry, some pass into the full ownership of the man, others do not, and constitute a permanent dowry. - Into the full ownership of the man pass things which are consumed by use, C. A. 1227; things whether movable or immovable which are given to him in payment, C. I. 1403; C. G. 1553; movable things, if they have been given after being appraised, C. I. 1401; C. G. 1551; but not likewise immovable things, unless this has been openly expressed, C. I. 1402; C. G. 1551; C. A. 1228. From C. H. 1346, if nothing is determined in the contract of marriage, the wife preserves ownership of all her dotal goods. Cf. C. B. 1227, 1228. - Of those goods which constitute a permanent dowry, natural and direct ownership remains in the power of the wife; civil and useful ownership passes to the husband. C. A. 1227, 1228, 1230. Wherefore, by force of the natural and direct ownership of the wife, the increase or loss of the dowry will belong to the wife. By force of the civil and useful ownership of the husband, the man has the administration and usufruct of dotal goods; whence he administers dotal goods as his own, he acts in court for them, C. I. 1339; C. G. 1549; C. H. 1357, 1360, and all things contained under the name of fruits are his from the beginning of marriage, C. I. 1399; C. G. 1549; C. A. 1227; and if counted money was promised, interest is owed to him by the law itself, although delay was stipulated for payment, C. I. 1397; C. G. 1548. But the husband must furnish that diligence in administering dotal things which he furnishes in his own things, and he must fulfill all obligations of a usufructuary, C. I. 1408; C. G. 1562; but he is bound to apply the fruits to feeding the family, for the fruits are assigned to him for this reason, namely for bearing matrimonial burdens. - The woman can obtain by office of the judge the separation of dotal goods, if the dowry is in danger, or the affairs of the man tend toward evil, or she has been judicially separated from him, C. I. 1418; C. G. 1563; this having been obtained, she herself, in place of the husband, administers the dotal goods, C. I. 1424; C. G. 1449; C. H. 225, 1365; but she must provide together with the husband for domestic necessities and the instruction of the children, C. I. 1423; C. G. 1448. Cf. C. A. 1241, 1263. - It can be established in the contract of marriage: 1. that the wife receive each year a part of the fruits for small expenses, C. I. 1399; C. G. 1549; 2. that the surviving spouse receive some gain over the dowry, the legitimate share of the children being saved, C. I. 1398. - L. l. 3, n. 539.

111. Dotal goods regularly, while marriage continues, cannot be alienated, and an alienation made can be revoked even by the very husband who consented to the alienation, C. I. 1407; C. G. 1560. - Dotal goods, namely all from C. I. 1405, only immovable from C. G. 1554. - Regularly, for they can be alienated from a grave cause of necessity or utility, by decree of the tribunal and the consent of each spouse, C. I. 1405; C. G. 1558; C. H. 1358 seqq.; or if alienation has been permitted in the contract of marriage itself, C. I. 1404; C. G. 1557. - They cannot be alienated for any cause whatever from C. I. 1405, which distinguishes nothing; except the cause of establishing some son, from C. G. 1556. But alienation comprehends also exchanges, servitudes, mortgages, C. I. 1404, 1405; cf. C. G. 1554, 1559. - While marriage continues; wherefore also after separation from C. I. 1405; cf. C. G. 1449. But if, while marriage continues, the woman legitimately contracted a debt or any obligation, after marriage has been dissolved even dotal goods are bound to the creditors from C. I. 1407, but otherwise from C. G. 1558, 1560. Cf. C. A. 1260.

112. Marriage having been dissolved, the dowry ceases, and is to be restored. - The dowry is to be restored to the wife, or to her heirs. C. A. 1229; C. H. 1365. Things of which only the civil and useful ownership was in the power of the husband are to be restored immediately in their own species, as they then are, C. I. 1409, 1411, 1412; C. G. 1564, 1566, 1567; C. H. 1367; and if by fault of the husband they have become worse, the detriment is reckoned to him, C. I. 1408; C. G. 1562; C. H. 1360, 1375. - But of things of which the husband had full ownership, only the price is to be restored within a year, C. I. 1401, 1410; C. G. 1551, 1565; C. H. 1347, 1366, 1370. From these the woman can retain for herself linens and the things which are necessary for her ordinary use, their actual price being deducted, if, after an appraisal of the same had been made, they were first given, C. I. 1411; C. G. 1566. Cf. C. H. 1374. - Besides, the fruits of the last year of marriage must be restored, in proportion to the time. The year is computed from the anniversary day of the marriage celebrated. But the widow can, according to her judgment, either demand these fruits, or support for the whole year of mourning. Besides, in this year dwelling and mourning garments are owed to her, C. I. 1415, 1416; C. G. 1570, 1571; only mourning garments, C. H. 1379. Cf. C. A. 1242, 1243. - Finally, when marriage has been dissolved, gains also or dotal increases are owed to the surviving spouse from the goods of the deceased, if there was an agreement concerning them in the contract of marriage. C. I. 1398.

113. Paraphernal or extra-dotal goods are those which outside the dowry the wife reserves to herself. C. H. 1381. - These are by full right the wife's, and thus she administers them and enjoys their usufruct, C. I. 1427; C. G. 1576; C. H. 1382. Yet she cannot alienate immovables, nor appear in court for them, without the express consent of the husband, or, if the husband resists, without the sentence of the tribunal. C. I. 134, 136; C. G. 215, 217, 1576, 1538; C. H. 1387; cf. C. A. 91. The same must be said from C. G. 1536, if the wife is wholly separate in goods. - But if the husband administers these goods by express or tacit mandate of the wife and receives the fruits, he must restore only the fruits which then exist, when the woman asks, or dies; but he must restore all the fruits which he received if a condition was added to the mandate that he render accounts of the fruits, or if the woman at least by an extrajudicial act opposed him. C. I. 1427 seqq.; C. G. 1576 seqq. But from C. H. 1384, 1389 seqq., if paraphernal goods are handed over by the wife to the husband to be administered, they are then equated with dotal goods, whose ownership remains in the power of the wife. From C. A. 1238, 1239, unless the wife opposes, by a presumption of law the administration of the free patrimony of the wife is deemed entrusted to the husband as legitimate procurator. But he is responsible only for the substance of the thing, or for the capital; but he is not bound to give an account of fruits received, unless this has been expressly agreed upon. - To paraphernal goods belong, and are the wife's, those goods which, during marriage, she acquires from her own goods, or from her singular industry, or from her extraordinary labor, especially if she exercises trade in her own name, or also something by subtracting from those things granted to her for food, clothing, recreation, etc.; then also those things which have been given to her with the express condition that they not yield to the husband. C. A. 1237. - L. l. 3, n. 541.

114. As regards the goods of the husband. - The wife has no ownership of the goods of the husband. But, since the wife is the associate of the man, and the man must feed the wife according to his condition, the wife by her own right can take for herself those things which are necessary to herself on this account. Lugo, de Iust. et Iur., d. 16, n. 72; Lessius, de Iust. et Iur., l. 2, c. 12, n. 85; and if it has been received from the custom of the region that the wife spend something from the goods of the husband, she can also do this, Lugo, l. c. Wherefore the wife can take not only those things which are necessary for the body, but also those which pertain to lightening the soul and to the decency of her state. Lugo, l. c., n. 68, 70. Nor indeed can she do this only for herself, but also for the children received from that marriage, for the utility of the family, or for removing some damage from it, and this even with the husband unwilling. Wherefore she can subtract things from a prodigal husband, in order to reserve them for the family for the future, or from an avaricious husband for making moderate alms. Lugo, l. c., n. 65; Lessius, l. c., n. 85. - From the very nature of conjugal society the wife has administration of domestic things, of provisions, furniture, etc., Lugo, l. c., n. 64; Lessius, l. c., n. 85. - From C. I. 1432, if the wife administered the goods of the husband, she is subject to the same law to which he is subject in the administration of the paraphernal goods of the wife. But when the man is absent or furious, the wife administers his goods, and can spend them, according to the powers of the patrimony, for the sustenance and preserving the dignity of the family, although perhaps the man, if present or composed of mind, would not have spent them. - From C. H. 1442, 1444, the wife administering all the goods of the marriage has the same faculties and obligations as when the husband administers them. Yet she cannot alienate and burden immovables. - Lugo, l. c., n. 16, 70; Lessius, n. 12, 86; L. 541.

115. As regards common goods. - From C. I. 1433, 1435, 1436, 1438, 1439, 1441, in the matrimonial contract itself, although a dowry has been constituted, the spouses can enter together into universal society, not indeed of goods, but of the fruits proceeding from those goods themselves, whether movable or immovable, whether present or future. Yet this society cannot comprehend debts and credits existing before the marriage, nor those which are later deferred by title of succession or donation while the communion itself endures. - The effect of this communion is to render common and divisible those things which are acquired by the spouses together or separately, during the communion, whether by common industry or by parsimony made from the fruits or incomes of the spouses, with the debts of the communion itself always deducted. - Goods placed in common are administered by the husband, who cannot alienate them except by onerous title, or subject them to mortgage; and if he leases them, he must observe the laws established for leasing which is done by a usufructuary. - But the society ceases by the death of either spouse, by the declared absence of one, by definitive separation of persons, by judicial separation of goods.

116. From C. H., when a contract concerning goods is lacking, by which they can also establish among themselves a separation of goods, the marriage is deemed entered under the regime of legal society of gains, 1315, 1432. But if this society is excluded without the rules by which goods are governed being expressed, then the dotal regime is observed, and nevertheless the husband receives all the fruits of the society of gains, just as if it existed, 1364.

Now, by the society of gains, husband and wife make their own, by half part, once marriage is dissolved, the gains and benefits indistinctly obtained by either spouse during marriage, 1392. - By the law itself are determined the proper goods of each spouse and the common gains, 1396 seqq., 1401 seqq., and also the burdens and obligations of this society, 1408 seqq. - The husband administers the society according to the established laws, 59, 1412 seqq.; he can make moderate donations for the sake of piety and beneficence, but cannot reserve the usufruct to himself, 1415. - The society is dissolved by the dissolution of marriage, by the absence of the other spouse, by separation of persons or goods, 1417, 1433. - The society having been dissolved, after an inventory has been made, and after dotal and paraphernal goods have been restored, and the other burdens of the society satisfied, what remains is divided equally between husband and wife, or their respective heirs, 1418 seqq. Cf. ibid. 1435, 1436.

117. From C. G. 1393, even if spouses do not establish that certain goods will be common, nevertheless, if any other agreement is lacking, legal Communion has place by force of law. For the agreements which can be entered by spouses before marriage constitute three classes, or a threefold regime, namely the dotal regime, concerning which it has already been spoken, the regime of community, and the regime excluding community. - Moreover, Community is either legal or conventional, according as it is constituted by law or by a special agreement of the contracting parties. - 1391, 1460 seqq., 1497 seqq., 1540 seqq.

118. Legal community coalesces: 1. from all movable goods which the spouses possessed on the very day of the marriage entered, or which then come to them by title of succession or donation; 2. from all fruits and any revenues whatever of immovable goods possessed by the betrothed before marriage, or coming to them during marriage; 3. from all immovable goods which were acquired from common goods during the time of marriage. - Conventional community consists in other agreements of the betrothed, by which legal statutes can be restricted or relaxed. These lacking, the community is governed by the disposition of law alone. - Under the regime of community, the husband alone has the administration of common goods. Indeed he can sell, exchange, and hand them over into mortgage even without the consent of the wife. Yet he cannot give immovables by gratuitous title, nor movables by universal title, or as regards their universality, or quota, or half, third, or fourth part. He can dispose of some movable thing by gratuitous title, provided he does not reserve the usufruct to himself. - But when the community has been dissolved, goods and burdens are divided into two parts, unless the wife or her heirs prefer to renounce the goods, and thus exempt themselves from the burdens. Debts are to be paid by each spouse, or by their heirs. - The husband also has the administration of the proper or personal goods of the wife. 1400, 1401, 1409, 1422, 1428, 1441, 1453, 1467 seqq., 1497 seqq.

119. The regime excluding community can be constituted by the spouses in two ways, namely 1. by declaring that they enter marriage without community; 2. by establishing that each shall be altogether separate as regards his own goods. In the former case the man receives all revenues of the goods of the wife and alone administers all things. But if they are consumed by use, he is bound to render their value. But in the latter case the woman has the administration and usufruct of all her goods. Each spouse, however, concurs toward the burdens of marriage by special agreement; but if no convention exists, the wife must concur up to the third part of her revenues. Wherefore in this third regime, just as also in the second, some dowry is to be supplied by the wife, by which she may partly assist the burdens of marriage; but a dowry of this kind can be alienated by the man. 1530 seqq., 1536 seqq.

120. From C. A. 1233, 1234, for a community of goods between spouses a special contract is required. But it is understood only for the case of death, and gives to the spouse a right to half part of the goods constituted in community which remain after the death of the other spouse. Cf. art. 1262, 1266.

121. From C. B. there is a twofold regime of goods, legal and conventional. The legal matrimonial regime of goods. By the contract of marriage the goods of the wife, even those which she herself acquires during marriage, are administered by the husband, who has the usufruct of the same, but must sustain the expenses of marriage. Excepted are goods reserved to the wife either by law, namely garments, precious jewels, and instruments of labor, and goods acquired by labor or by personal exercise of a lucrative profession; or by contract, namely those which were declared such by the contract of marriage; by succession, legacy, donation made with that reservation. The wife has administration and usufruct of these reserved goods. - The administration and usufruct of the husband having ceased, the husband is bound to restore the goods to the wife, and also to render an account of the administration. The wife can demand this cessation if her goods are in danger. - C. B. 1363 seqq.

The conventional regime of matrimonial goods. The betrothed can establish a convention of goods both before marriage and after the marriage has been contracted, and they can dissolve or modify the regime of goods. If by the contract of marriage the administration and usufruct of the husband is excluded, or if the community of goods is dissolved, then separation of goods is had. But community can be either universal of goods, or particular of acquisitions, or particular of movables and acquisitions. The husband administers the community, and from the goods of the community sustains the burdens of marriage. The community having been dissolved, after the debts have first been paid, those things which remain are divided into two equal parts between the two spouses, or the descendants of either and the widowed spouse. - C. B. 1432 seqq.

122. From C. L. It is lawful for the betrothed before marriage to make a contract concerning goods, within the limits of law, 1096. Conventions of this kind will not be valid unless they have been drawn up by public writing, 1097. If no convention is made, the marriage is deemed contracted according to the custom of the kingdom, 1098. The woman can reserve to herself the right of receiving part of the fruits of her goods, provided it does not exceed a third part, 1104. - The convention of marriage can be made according to the custom of the kingdom, of community of acquisitions, of separation of goods, of the dotal regime, 1099 seqq.

The convention according to the custom of the kingdom imports community of all present and future goods not excepted by law, 1108 seqq. Ownership and possession of these goods is with each spouse, administration in the power of the husband, 1117 seqq. The community having ended, its goods are divided between the spouses and their heirs, due equality being observed. First satisfaction must be made to the woman, then to the man, 1123, 1124.

The convention of separation of goods does not exclude acquired goods from community without an express declaration, 1125. Each spouse preserves ownership of proper goods and their free disposition, yet with that restriction for the woman which is made by law, 1127, 1128.

The convention of community of acquisitions does not comprehend goods which are had at the time of marriage, or which are afterwards had by succession or by another gratuitous title, 1130 seqq.

In the dotal regime the husband can alienate movable goods, but is bound concerning their value, 1148. Immovable goods are inalienable except for cases permitted by law, 1149 seqq., nor can they be prescribed during marriage, 1152. Marriage having been dissolved, dotal goods are to be restored to the woman and her heirs, 1156 seqq.

123. Besides these things which have been constituted by the various laws, all those agreements must be observed both by the man and by the wife, which in the contract of marriage have been entered either tacitly according to the laws of their own region, or expressly by private will; provided nevertheless that these agreed covenants are opposed neither to good morals nor to the laws. C. C. 1338; C. A. 1217; C. G. 1387; C. H. 1315.

124. What can the wife do as regards entering various contracts? - The wife cannot, without the consent and authority of the husband, give, alienate, or subject to mortgage her own immovable things, contract a loan, cede or demand capitals, become surety, transact, or act in court concerning these acts, C. I. 134; C. L. 1192, 1193; cf. C. G. 215, 217; C. A. 91; nor undertake the management of another's affairs, C. I. 1743; cf. C. G. 1990. - But the woman needs no consent or authority of the husband or of another when the man is a minor, interdicted, absent, or expiating a punishment longer than a year, or absent, or when she is juridically separated by fault of the husband, or when she exercises trade, C. I. 135; cf. C. G. 220, 222. - He who contracts with a wife, without the consent and authority of the husband, when there is need of this, is bound to the wife both civilly and naturally, and the wife likewise is bound to him. But to the wife and her heirs, and to the husband while marriage continues, and also to those having cause, restitution in integrum is given; unless it is proved that what was paid to the wife yielded to her advantage and utility. C. I. 134, 137, 1157, 1300; C. G. 217, 225, 1304, 1312; C. L. 1200, 1201. - From C. H. 1304, the wife, when the contract has been rescinded, is not bound to restore the thing received by contract unless she has become richer by it. Cf. also art. 1163. - From C. B. 1365-1371, 1395-1400, 1405-1407, the wife can freely dispose of goods reserved to herself; but as regards goods subject to the husband's administration and usufruct, she needs the husband's approval.

125. Can a wife sometimes become surety for the husband? - R. Affirmatively, namely in order to provide for domestic necessities. But otherwise negatively. Thus commonly. The reason is that the former is sometimes required by the very good of the family, but the latter is excluded by this same good. Whence it follows that the wife is held to paying debts legitimately contracted by the husband in the name of the wife, she knowing and consenting, on account of the good and advantage of the family itself. L. 354. - From C. I. 1405; C. G. 1558, the authority of a judge is required.

126. What is the law if a man and woman have contracted an invalid marriage? - If each was conscious of the nullity, there is indeed no marriage, and thence no right can be claimed from positive law, whether as regards the dowry of the wife, or as regards the legitimacy and hereditary succession of children, C. 10, Qui fil. sint legit.; C. I. 116; C. G. 202; C. A.

The son, however, during his life can demand support from the father just as if he were legitimate. C. B. 1703. - If both were ignorant of the nullity, the marriage is just as if it truly were valid; whence rights flow from it as from a true marriage, C. 2, 8, 14, Qui fil. etc.; C. I. 116; C. G. 201; C. A. 160; C. B. 1699; L. l. 7, n. 425. If one was conscious, the other ignorant, of the nullity, the civil rights stand only for the spouse who contracted in good faith; but the children are legitimate as regards both. C. 14, Qui fil.; C. ult., sect. Si quis, l. de Cland. desp.; C. I. 116; C. G. 202; C. A. 160. Cf. art. 1265, 1266; C. B. 1701, 1702. - Schmalz. l. 4, t. 17, n. 13, 18, 57; Lugo, d. 24, n. 8; L. l. 7, n. 425, 432.