Point II. On the Dominion of Wives

548. • The goods of a wife are of three kinds, namely:

1. Dotal goods, whose fruits the husband enjoys for sustaining the burdens of marriage.

2. Paraphernal goods (παρὰ φερνὴν, besides the dowry), which the wife has besides the dowry, and which she specially reserves to herself.

3. Common goods, which by the pacts of the spouses or by determination of law are brought into a certain partnership.

Spouses can, before entering marriage, determine the conditions to which their goods are to be subjected, with certain statutes of law being preserved; if they have omitted to do these things, the law will supply.

549. • I. The wife has direct dominion of her dowry, but the husband has usufruct and administration. When the husband has died, she is preferred to all the personal creditors of the husband, and even during life she can juridically reclaim the dowry if she fears that the husband will become unable to restore it. If the dowry consists in money or in other things consumptible by use, full dominion of the dowry is indeed attributed to the husband, but with the obligation of restoring the value, dominion having been transferred for the wife into all the goods of the husband according to the rate or quota of her dowry ¹. - St. Lig., n. 489.

¹ This is valid if the dowry consists in things which are counted by weight, number, or measure, or certainly in appraised things handed over; for then the husband becomes by full right the owner of those things. But if non-appraised species are given as dowry, then the wife alone is mistress of the dowry; but to the husband only two things pertain from the right of dominion, namely vindication of the thing given, and the right of using and enjoying.

II. The wife holds full dominion and administration of paraphernal goods, so that concerning these the husband is able to dispose of nothing against her will. Hence as to these she depends in no way on her husband. - St. Lig., ibid.

III. 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. - Elbel, n. 69.

Pacts which can be entered into by spouses before marriage constitute three classes, or a threefold regime, namely: 1. the dotal regime; 2. the regime of community; 3. the regime excluding community.

550. • I. Dotal regime. Dotal goods are those which constitute the wife's dowry: the husband has full administration of these and receives the usufruct. But the wife preserves direct dominion alone (art. 1549).

If the dotal goods consist in movable goods, either partly or totally, the husband has perfect dominion of them, and is bound only concerning their value consigned in the contract preceding the marriage (art. 1554).

Dotal goods can in no way be alienated, even with the wife consenting, except certain particular cases excepted by law (art. 1551 and following).

But all goods whatever of the wife, not constituted in the dowry, remain altogether her own, or are held as paraphernal; and the woman also has the administration of them and receives the usufruct (1574, 1576). Yet she cannot alienate immovable goods, nor appear in court for them, without the express consent of the husband, or, if the husband resists, without a sentence of the tribunal of first instance (art. 1576); the same must be said if the wife is entirely separate in goods (art. 1536).

To paraphernal goods also belong those which the wife procures for herself by singular industry or extraordinary labor, with sufficient care of the family estate having been applied, or those which she accumulates by subtracting something from what is granted to her for food, clothing, recreations, etc.; and also those things which have been given to her with the express condition that they not yield to the husband.

551. • II. Regime of community. It has place when spouses establish in the matrimonial contract that certain goods will be common between them ². But community is either legal or conventional, according as it is constituted by law or by the special pact of the contracting parties.

² This perhaps is said less exactly. For even if the spouses do not establish that certain goods will be common, nevertheless, if any other pact is lacking, legal community has place by force of law. See art. 1393 and 1400.

Legal community is formed: 1. from all movable goods which the spouses possessed on the very day the marriage was begun, or which afterward come to them by title of succession or donation; 2. from all fruits and any revenues whatever of immovable goods possessed by the spouses before marriage, or coming to them during marriage; 3. from all immovable goods which have been acquired during the time of marriage from common goods (art. 1401-1402).

Conventional community consists in other pacts of the spouses, by which the legal statutes can be restricted or relaxed. When these are lacking, the community is governed by the disposition of the law alone.

552. • Under the regime of community, the husband alone has the administration and usufruct of the common goods. Indeed he can sell them, exchange them, hand them over in mortgage, even without the wife's consent. Yet he cannot donate immovable goods by gratuitous title, nor movable goods by universal title, or as to their universality, or quota, namely a half, third, or fourth part. But when the community has been dissolved, the goods and burdens are divided into two parts, unless the wife or her heirs prefer to renounce the goods and so exempt themselves from the burdens. Debts are to be paid by each spouse, or by their heirs (art. 1482).

553. • III. Regime excluding community. Spouses constitute this in a twofold way, namely: 1. by declaring that they enter marriage without community; 2. by establishing that, as to goods, each will be entirely separate as to his own. In the former case, the husband receives all revenues of the wife's goods and alone administers all things. But if they are consumed by use, he is bound to return their value. In the latter case, however, the woman has the administration and usufruct of all her goods. But each spouse contributes to the burdens of marriage by special pact; but if no convention exists, the wife must contribute up to a third part of her revenues. Wherefore in this third regime, just as also in the second, some dowry is to be furnished by the wife, by which she may in part assist with the burdens of marriage; but such a dowry can be alienated by the husband.

554. • Resolutions. 1. A wife has a strict right to support from the common goods; therefore she can procure it for herself if the husband refuses, or consents only with very great difficulty.

2. The wife does not sin by subtracting some things for food, clothing, and the other necessities of the family, which husbands often do not take care of, and which would be sought from them in vain. - St. Lig., n. 541.

3. If the husband squanders or wastes goods to the detriment of the family, the wife can hide them and reserve them for the good of the family.

4. The wife does not act unjustly if, without the husband's knowledge, she takes some things for herself which the husband would easily and certainly grant if he were asked; for presumed permission is present, and sometimes a just cause of not asking, lest she be forced to show herself as a maidservant. - Reuter, n. 47.

5. In default of the husband, the wife can spend from the common goods what is necessary for preventing grave damage threatening the family. - Lugo, disp. 16, n. 67.

Yet in these and similar things one must act cautiously, lest the reins be loosened for wives, since they are inclined to extend their rights beyond what is equitable.

555. • Questions. Q. 1. Whether a wife can make alms from common goods or from the fruits of her dowry?

Resp. Affirmatively, even if otherwise she has goods of her own, provided this is done according to the custom of other women of the same condition. The reason is that a wife is not a slave, but a companion; therefore she ought to have a certain administration in the house of the husband. Then the husband is deservedly presumed to consent to those things which are done by the wife according to the honorable custom of the region and condition; and if he shows himself unwilling, such dissent is judged irrational, because the husband cannot deprive the wife of a right granted to her by legitimate custom. - Thus commonly with Lugo, St. Lig., n. 340.

556. • Q. 2. Whether a husband is bound to restitution who prodigally or badly spends a notable part of the common goods?

Resp. It is disputed. The first probable opinion affirms. The reason is that although the husband has the administration of the goods, nevertheless the wife has dominion of half of them, and therefore that right is violated if, while she is reasonably unwilling, that part is dissipated by the husband. - Thus Antoine, p. 3, c. 5. - Collet, De Iust., p. 3, c. 4. - Pontas, see Communauté. - Conference of Angers, De Matr. ut contr. civili, q. 2. - Gousset. The second opinion, also probable, denies generally, that is, unless the husband exceeds the limits of the right granted to him by law. The reason is that the wife, from law, has a strict right only to half of the goods which will exist when the community has been dissolved ³; nor is the husband bound to render an account of his administration. Hence although he sins gravely against piety toward his wife and children, nevertheless he does not sin against justice properly so called, which induces the obligation of restitution. But the wife can forestall the dissipation of the goods through the faculty which is granted to her by law, of juridically seeking the separation of goods. - Thus Lacroix, n. 1020, De furto. - Carrière, n. 276.

³ It can indeed seem obscure what this opinion means, and even that it involves contradictory things. For it is supposed that the wife, by force of the community, has a right in half of the things existing; then this right is restricted to half of the things existing when the community is dissolved; and meanwhile a full faculty of disposing of all things is given to the husband, so that he is bound neither to render an account nor to restitution. But to what, then, does that right of the wife finally come, when the husband can so dissipate all things that nothing remains to be divided when the community is dissolved? Besides, speech about a violated office of piety toward the wife and children is introduced wrongly. For the condition of the wife and children is unlike in the case. For while the father is living, there is no strict right for the children in paternal goods; but something else is here supposed concerning the wife as to common goods.

Nevertheless this opinion will not seem so absurd if account is had, which the Author did not declare sufficiently, of the French Code, which certainly the authors of this opinion had before their eyes. Namely, there by the laws sufficient provision is made for the wife, so that of those things which she brings into community she can recover either whatever still exists, or the equivalent, and exact the indemnities decreed by the judge, and this in such a way that she is preferred both to the husband and to the creditors as regards the community itself. But if any restitution is denied in this opinion, this pertains to those things which could remain from the good administration of the revenues. Wherefore the indemnity of the wife is no less consulted here than in that mode of the dotal regime which transfers full dominion of the dotal goods to the husband.

Moreover Croix is alleged here to no purpose (lib. 3, p. 1, n. 1020): for the Authors whom he alleges as absolving the husband from the burden of restitution judge that the goods concerning which there is a question are proper to the husband alone; but those who judge the goods to be common, Croix alleges as imposing the burden of restitution. Therefore Croix would rather fight for the first opinion, not for the second.

But under French Law the husband would exceed the limits of his right, and would certainly be bound to restitution, if he gave some immovable goods by gratuitous title, or the totality or a quota of the movable goods, or if he took the goods of the community for himself.

557. • Q. 3. Whether a wife sins by accepting something from common goods or from the fruits of the dowry for relieving the necessity of parents or children who were received from a first marriage?

Resp. Negatively, if she does not have paraphernal goods, nor the husband wishes to give what is necessary, because by the law of nature the wife is bound to support the aforesaid blood relatives, and the husband ought to consent to this. - Thus St. Lig., n. 542, with others.

Q. 4. Whether the wife is bound to restore goods accepted in this way, when she has come into the husband's inheritance, or when she has recovered her dowry?

Resp. 1. Negatively, if these goods are of small importance, because then they are held as common alms, which, if made moderately, do not carry with them the burden of restitution. - Thus all.

Resp. 2. Several likewise deny, even if the goods subtracted are of greater importance, because they judge all burdens which come to one spouse while the marriage stands to be common to the other ⁴. But the affirmative opinion seems to be held with St. Lig., n. 543; Hom. apost., n. 33. - See Casus, n. 505.

⁴ Lugo reports this opinion thus (De Iust., disp. 16, n. 71): "Nevertheless Lessius thinks it probable, with Molina, that those things which are spent for supporting parents so needing, namely extremely or gravely, and the same must be conceded concerning supporting children, are to be paid from the common goods of each spouse, if the marriage was celebrated by a contract of halves of goods; but if by a contract of earnest-money and dowry, they are to be paid from superadded gains, if there are any; but if there are none, they ought to be taken by the wife in part of those things which she should have had when the marriage was dissolved."

Yet this last little clause does not seem to have pleased Lugo. For after he said (ibid., n. 72) that when the wife does not have other free goods, but nevertheless has half of the goods with the husband, or brought a good dowry, or other goods which the husband administers, or there are gains common with the husband, she can assist needy parents or children, and perhaps also brothers; and he added that he did not see why, if those expenses are moderate, she ought, when the marriage is dissolved, to count them into her own part; he soon adds: "Indeed this also seems probable, even if she married without a dowry, with the husband consenting, and does not have half of the goods or common gains. The reason is that the husband could also assist from common goods his own parents, or children of a prior marriage who are in need: why therefore will the wife not be able to do the same, since the burdens of each ought to be common? For although under the name of support, if they are taken precisely, those things do not come which the wife would give to her parents, nevertheless the wife does not seem only to have a right to bare support; because she seems to be a participant in the goods and family estate in some way; nor is she like one of the family, so that she ought only to be fed, but she has a part in the government of the family: and although she is under the power of the man, nevertheless she is a companion and participant of dignity; wherefore just as the man is called lord of such a city or town, so the wife is called lady of the same place. Hence although as to administration the wife is subordinated to the man, nevertheless it is equitable that he permit his spouse, with due moderation, the use of goods for relieving the grave necessities of her own people: for the use of goods is more necessary to the wife for this than for other things for which the man could not justly deny necessities to his wife."