Article II: On the Dominion of Wives

180. Notions. - Husband and wife, by contracting marriage, form a certain society of which the man is the head, but the woman is subject, not as a servant or maidservant, but as associate and helper. Whence from the nature of the thing and divine law the woman becomes subject to the man, and therefore she does not retain the same liberty as to managing her goods and affairs. "For although the woman is equal to the man in the act of marriage," says St. Thomas, "nevertheless in those things which pertain to the ordering of the house, the man is the head of the woman, according to the Apostle, I Cor. XI" (II-II, q. 32, a. 8, ad 2). Indeed, by entering matrimonial society the wife retains natural rights, whence she remains capable of dominion and administration; but she has taken upon herself duties of assisting, according to a proportionate part, the burdens of marriage and common life, namely, the support of the offspring to be born, indeed even of the husband himself, in the case in which he should be deprived of his own goods. Hence, because the man generally is supposed to be more skilled in managing goods, and because he is the head, by natural law it is already fitting that the wife depend upon him, at least as to those goods which are destined for the burdens of marriage. This is to be determined by civil law, and it is done in various ways for various regions or diverse conventions.

181. Principles. - But in every matrimonial regime three genera of the wife's goods can be distinguished:

1. common goods, which by nuptial pact or by statute of law are placed into the community or are acquired for the community;

2. proper or dotal goods, which according to legal dispositions or special pact are brought for sustaining the burdens of marriage but do not become common; these therefore are entrusted to the husband in order to the burdens of marriage;

3. extradotal or paraphernal goods, which the wife has besides the dowry and which she has reserved wholly to herself; - to these there are reduced as quasi-paraphernal goods:

a) whatever the wife has acquired for herself by extraordinary industry and labor after due diligence has been given to domestic affairs;

b) whatever from frugality she subtracts from the things granted to her for food, clothing, recreation: for they are reckoned fruits of industry;

c) whatever she receives by personal title of donation, namely, under the condition that the husband have no right in the thing donated.

Hence three principles:

I. As to paraphernal goods, the wife has dominion, usufruct, and administration. Whence she can fully dispose of these goods, at least if they are movable; and even if they are immovable, unless civil law prohibits it: thus according to French and Belgian law, generally she cannot alienate immovable goods except with the husband's consent.

II. As to proper but dotal goods, the wife has direct dominion; therefore the husband cannot alienate them, at least without the wife's consent. But revenues and fruits during marriage belong, according to the diverse convention, either to the husband, or to the family community, of which nevertheless the husband is administrator.

III. As to common goods, dominion is with the community, i.e., with the man and wife together; useful dominion and administration the man has as head of the family, so that generally he can dispose of them fully. Yet the wife has from common or dotal goods a right to honorable support according to the condition of the family; but when the community is dissolved, she has a right either to half the part, or to that part which was determined by convention.

But which goods in fact are common or dotal depends upon the convention entered and upon the statute of civil law of diverse regions.

182. Practical conclusions. - 1. A wife, from common goods and the fruits of dotal goods, has a strict right to honorable support, according to her present condition and the state of the family fortune, even if she has brought no goods, nor any pact has been explicitly entered: for it is one of the burdens of marriage. Whence also, if other goods are lacking, support is strictly owed to her from the goods of the husband; just as also to the husband, if he does not have goods, support is owed from the goods of the wife. - But honorable support includes not only food and clothing, but in our regions also the faculty of spending certain things for honorable recreations, small gifts, and moderate alms, according to her condition.

2. A wife who is bound to assist her parents, or children received from a prior marriage, because they are in grave necessity, must furnish this from goods proper to herself, if she has any; but if these are lacking, from common goods, or finally from the goods of the husband, even against his will, provided that she then abstains from other alms; and the same seems to be said for assisting gravely indigent brothers and sisters. The husband as administrator and head of the family must give those things to the wife by which she can satisfy her natural obligations. And she is not bound, after the husband has died, to restore those expenses, even if they much exceed the limits of customary alms.

3. A wife, because she is not a servant or maidservant but an associate, strictly is not bound explicitly to request from the husband those things which are necessary for her own support or for the necessities of the family, but can vindicate them to herself, indeed secretly take them if the man is irrationally unwilling; and similarly, if the husband is lacking or negligent, those things which are necessary for the support of the children. Likewise those things which the husband would easily concede if he were asked: such permission then can legitimately be presumed.

4. The wife, if the husband is lacking, is set over by her nature and by positive law for caring for family affairs. Whence, in the case, generally she could spend from common goods those things which are necessary for preventing grave damage to the family;¹ and if the husband is prodigal, she probably can hide certain goods and preserve them for future necessities.

¹ See, however, civil law; for example, art. 1427.

5. The wife sins against commutative justice and of herself is bound to restitution if, against the reasonably unwilling husband, she secretly takes his goods or usurps for herself from dotal or common goods those things to which she has no right.

6. The husband also can sin against commutative justice, and is bound to restitution: by taking extradotal goods, against the wife's will (a. 1579); by taking or dissipating dotal goods or the wife's proper goods, or by caring for them negligently, or by alienating them without the wife's permission (a. 1428); by compelling her through unjust means (force, fear, fraud) to consent to the alienation or obligation of her goods; likewise by disposing of common or dotal goods against the prescription of law,² if thence he inflicts damage upon the wife; - but probably not if he has dissipated goods within the limits of the law, although he thus sins against liberality and piety.

² It is disputed whether the husband, by dissipating common goods but within the concession of law, is bound to restitution toward the wife. Many affirm: 1) because the wife has co-dominion (and therefore strict right) at least over half the part; 2) because the concession of law is not positive, but only negative, insofar as by the legal way nothing can be demanded from the husband on account of bad and prodigal administration; 3) because the concession of law ought to be for the advantage, not the detriment, of the family. - Others nevertheless deny, responding: a) the concession of law is absolute, since it says the husband has administration and usufruct of the goods, and only places certain small restrictions; b) the co-dominion of the wife expressed by law consists only in this, that, when the community has been dissolved, the wife has a right to a half part of the goods then existing; but the man's part in the common goods is stronger both by reason of the goods placed in common and by reason of administration; c) the concession of law is for the advantage of the family, yet not so that the man cannot dispose of the goods of the community except directly and immediately for the utility of the family, but according to general conventions; otherwise the concession of law would be vain and empty. Therefore, besides those things which have been established by law, the husband has perfect administration, nor is he bound to render an account concerning it.

By French and Belgian law, the husband has administration of the wife's proper or dotal goods, which nevertheless he must manage as a good father of a family, and if he is negligent, he is bound to restitution (a. 1428). But of the goods of the community he has administration such that he can sell, alienate, and pledge them without the wife's consent (a. 1421); nevertheless he cannot donate immovable goods (even secretly or under the appearance of sale), nor the totality or a determinate quota of movables except for settling children (a. 1422); yet he can donate movables by particular and gratuitous title, provided he does not reserve usufruct to himself (ibid.).

To guard against the dissipation of goods, the wife can petition for separation of goods (a. 1443), and when the community is dissolved she can vindicate her part provided by law, not only from the goods of the community, but also, if those do not sufficiently remain, from the goods of the husband (a. 1471-72). But if the wife, knowing of the dilapidation, does not reclaim her right (by petitioning separation), it is a sign that she does not dissent, nor can she demand restitution, except for the fruits which remain (a. 1539 and 1578).

7. Finally, spouses, whether husband or wife, sin against commutative justice by not bringing the part of goods or revenues owed according to law or contract.

183. Practical warning. - The rights of wives in common goods, which belong to them from usage and custom, are not to be publicly proposed in instructions, nor privately applied without discrimination, by indulgence everywhere to women, since they, from an innate desire of ruling, are very prone to extend their rights more than is equitable. Universally it must be cared for more that the wife be subject and obedient to the husband in charity, as is fitting, than that she insist upon her rights.

We place here below the more principal dispositions of civil law of the chief nations, so that the reader may be able to form for himself some idea of the matter; nevertheless, the things noted ordinarily do not suffice for solving cases, because they are often very involved. And therefore without consulting a jurist they are not easily to be solved.

184. According to French and Belgian law: 1) Spouses before marriage can enter into every and all convention, provided it is not opposed to good morals, to marital and paternal authority, and to civil law³ (a. 1387-1390). If a special convention is lacking, the marriage is judged to have been entered under the regime of legal community (a. 1400).

³ Let the contract of marriage not be confused: le mariage, l'association conjugale; de huwelijksverbintenis, de echt; with the prior convention or matrimonial contract: le contrat de mariage, la convention matrimoniale; de huwelijksche voorwaarden of overeenkomst.

2. Conventions before marriage must be entered before a notary (a. 1394); once entered they can be changed in the same form, i.e., by a similar act before a notary, before, but not after, the celebration of marriage (a. 1395-1396).

3. Under whatever regime, the wife depends upon the husband - or upon the tribunal - as to the alienation of immovable goods (a. 217-219; 1449; 1538), and in order that she present herself in civil judgment (a. 215-216); but this dependence ceases when the matrimonial bond has been dissolved (a. 1576 and 1449).

But marriage can be contracted under a multiple regime: of legal community, - or conventional, - exclusive of community, - of separation, - and dotal.

A. The regime of community (gemeenschap van goederen) is had when certain goods of the husband and wife become common. It is introduced either by matrimonial contract, or, when a contract is lacking, by law of full right. Whence there can be a twofold community of goods: legal or conventional.

Legal community is had if the spouses make no special contract or declare that they wish to contract under the regime of community (a. 1400-1490). Under this regime:

1. The following become common: a) all movables both present and future, except those which are expressly donated so that they may be proper; b) all fruits and revenues of all immovables; c) all immovables also acquired from common goods while the marriage stands (a. 1401-1403).

2. The following remain proper or personal to each spouse: a) all immovables, whether possessed before marriage, or obtained after marriage, unless they were donated with the explicit condition that they become common, or acquired by onerous title from the price of a proper good sold (remploi-wederbezetting) (a. 1404-08; 1433); b) movables donated with the explicit condition that they be proper (a. 1401).

Therefore, a) while the community stands, the wife retains bare ownership of her goods; but not the administration, which passes to the husband, nor the usufruct, which passes to the community of which the husband is head and administrator. Whence she cannot alienate her goods without the husband's consent; nor can the husband alienate the wife's proper goods without her permission (a. 1428). As to common goods, the community possesses direct dominion; useful dominion and administration the husband has as head, on which account he has the right of selling, alienating, and burdening them with mortgages, without the wife's consent (a. 1421), except for a few cases determined by law, of which above, n. 182, 6; - but the wife has from these goods a right to honorable support according to her condition.

Hence she cannot alienate nor obligate the said goods without the husband's consent, even with the authority of the judge, unless she publicly exercises commerce in her own name, with the husband's consent, and contracts by reason of commerce (a. 1426; C. Com., a. 9 and 10); - nor can she obligate herself or burden common goods, even to free the husband from prison, or to settle the children while the husband is absent, except by the authority of the judge (a. 1427).

b) When the community has been dissolved, which happens by death, divorce, separation of bodies, or of goods (a. 1441-1445): 1. the wife recovers full dominion of all goods which are proper to her (a. 1449); 2. as to common goods and burdens, she can vindicate for herself half the part of the goods (a. 1474), if she wills to pay half the part of the debts (a. 1483); or repudiate the half (a. 1453) if she does not wish to be burdened with the common burdens, in which case she can demand nothing except clothing (a. 1492); 3. if she vindicates the half for herself, she must take care that an inventory be made in order to remove frauds more efficaciously, namely, lest she be burdened with common debts beyond the proportionate part of the advantage which she receives from the common goods (a. 1483); which she will obtain provided the inventory was made in good faith and sincerely.

In the case of separation of goods, marital authority remains, and therefore the wife cannot alienate immovables (a. 1449); in the case of separation of bodies, it is suspended, so that the wife now obtains the full exercise of juridical capacity and can alienate immovables, according to the Belgian law of March 20, 1927.

B. Conventional community is when spouses by a special pact extend or restrict the legal community, so that the common goods are more or fewer according to those things which are stipulated in the matrimonial contract (a. 1401): thus, for example, if they declare that all movables and immovables, present and future, are to be common, - or only those goods which during the marriage are acquired from the revenues of both (communaute aux acquets, tot winsten of aankoopen beperkt; in which case, however, debts do not become common, since they are not acquired), - or also that common goods are to be divided not equally, but according to a given proportion, etc. (a. 1497-1528).

C. The regime exclusive of community (uitsluiting der gemeenschap van goederen) is that which is declared to be entered without community of goods, or with the simple negation of community, so that legal and conventional community is excluded.

In this regime: a) the wife preserves direct dominion of her goods or at least of their value, so that, the goods being consumed, the husband is bound to return the value; - b) the husband has usufruct and administration of the wife's goods, except those which have been specially reserved to the wife (a. 1534), but with the burden of providing for the wife's honorable support; - c) when the regime is dissolved, the wife recovers full dominion of her goods, but cannot reclaim the fruits already received by the husband (a. 1529-1535).

D. The regime of separation of goods (scheiding van goederen) is that which is declared to be entered with the positive affirmation of separation of goods. Thus a) each spouse retains not only dominion, but also usufruct and administration of his or her goods; - yet the wife cannot exercise the right of alienating immovables without the husband's consent (a. 1538); - b) each spouse must sustain the burdens of marriage according to the part established in the pact; and if such a pact is lacking, the wife must hand over to the husband for this purpose a third part of her revenues; - c) if either one falls into want, the other is bound to bear the burdens of the household (a. 1536-1539).

E. The dotal regime (rechtsverhouding met betrekking tot den bruidschat; dotaal-stelsel) essentially consists in this, that the wife's dotal goods cannot be alienated, but are specially protected. It does not consist, however, in the constitution of a dowry: for it can exist without a dowry being constituted, in which case a third part of the wife's revenues is determined for the burdens of marriage (a. 1575); and moreover in other regimes a dowry can be constituted; but it is so called because a legitimately constituted dowry enjoys certain special privileges which are denied to it in another regime. Whence the dotal regime does not exist unless the spouses expressly declare that they enter marriage under this regime (a. 1392).

In it the goods of the wife are of two genera:

1. dotal, which by nuptial pact are constituted as a dowry for sustaining the burdens of marriage (a. 1541), and which while the marriage stands cannot be constituted or increased (a. 1543); but the dowry can comprise either all the wife's present and future goods, or only present goods, or part of present and future goods, or one individual object (a. 1542);

2. paraphernal or extradotal, which are outside the dowry: all those things which in the nuptial pact are not constituted as dotal are such (a. 1574).

Now a) of dotal goods the wife retains direct dominion, and, if it has been so agreed, part of the fruits required for her personal necessities (a. 1594); but besides this, the husband has administration and usufruct, who nevertheless, when the marriage is dissolved, must restore to the heirs the value of the movables determined in the contract (a. 1551), but immovables in no way can be alienated or obligated, even with the wife's consent (a. 1554), - indeed neither prescribed (a. 1561), - except for certain cases excepted by law.

The cases are: 1st. by the permission of the husband, or if he is lacking by the permission of the judge, for giving dowries to the wife's children received from a prior marriage (a. 1555);

2nd. by the permission of the husband, for giving dowries to the children of both living spouses (a. 1556);

3rd. by stipulation of the matrimonial contract (a. 1557);

4th. by the permission of the judge in a public sale and after three public written notices (affiches, a. 1558);

5th. for redeeming the husband or wife detained in prison (a. 1558);

6th. for furnishing support to the family in cases determined in art. 203, 205, and 206 (a. 1558);

7th. for paying the debts of the wife or of those who furnished the dowry, if the debts preceded the marriage (a. 1558);

8th. for repairing grave damages which the dotal immovable goods have suffered (a. 1558);

9th. when dotal immovable goods are undivided and indivisible with others (a. 1558).

b) Of paraphernal goods the wife retains dominion, administration, and usufruct, although she cannot alienate immovables without the consent of the husband or of the tribunal (a. 1576).

185. Especially in the common regime of community, three genera of goods of the wife must be distinguished:

1st. paraphernal or extradotal goods, concerning which the Civil Code does not speak expressly (because it treats of the convention to be entered before marriage, not so much of those things which are acquired after marriage), but which it supposes when it permits freedom of convention: they are those which the wife has besides the dowry and which by special convention she has reserved to herself; - or quasi-paraphernal, obtained from extraordinary labor, frugality, or exclusively personal donation, as was said in n. 181;

2nd. proper or dotal goods, which the spouses, according to legal dispositions or a special pact, indeed bring for sustaining the burdens of marriage, but which do not become common: they are immovables;

3rd. common goods, which are brought for sustaining the burdens of marriage and which at the same time enter the community (biens qui composent l'actif de la communaute legale): they are movables.

These things being noted, it is asked what dominion belongs to the wife concerning each?

Resp. A. As to paraphernal or quasi-paraphernal goods the wife has dominion, usufruct, and administration. Whence she can fully dispose of these goods, at least if they are movable; she cannot alienate immovables without the consent of the husband.

B. As to proper goods, the wife has direct dominion; therefore the husband cannot alienate them without the wife's consent. When the community is dissolved, the wife recovers full dominion in those goods; but revenues and fruits during marriage belong not to the husband but to the family community, of which nevertheless the husband is administrator.

C. As to common goods, the man, as administrator and owner of half the part, has the right of fully disposing of them, even of alienating them without the wife's consent. Yet the wife has a right from them to honorable support according to the condition of the family. At the same time, however, the wife has direct dominion over those goods, but only radically and as bound (a. 1421), i.e., during the community that dominion cannot be exercised, yet there is had as it were a hope of dominion in half the part after dissolution of the community. Namely, when the community is dissolved, the wife can demand half the part (a. 1474); indeed the wife, whose condition while the community stood was worse, obtains various privileges, namely:

a) she can renounce the community (a. 1453 and 1457) within three months and 40 days after the death of the husband, if she does not wish to pay half the part of all common debts;

b) even if she accepts the community, she is not burdened by the debts of the community beyond the portion of the advantage received, provided that before the tribunal an entire inventory of all goods has been made (a. 1483);

c) whether she accepts or renounces, the wife can reclaim and take her personal rights, i.e., proper goods and whatever, besides fruits and revenues from those goods, were turned to the favor of the community, not only from the goods of the community but also from the husband's proper goods, if the former do not suffice (a. 1471-72).

186. Observation. - In Belgium, the right of the husband has suffered some restriction from the law of March 10, 1900 concerning the contract of labor, in which one reads, art. 33: "The instruments of labor necessary for the personal occupations of the wife and the movable goods acquired with the aid of the wage cannot, without her assistance, be alienated by the husband by onerous or gratuitous title, leased, or given on loan or in pledge.

Movable goods acquired with the aid of the wage of the married woman are not susceptible of seizure on the part of the husband's creditors, unless they prove that the debts whose payment they pursue were contracted for the needs of the household."

Yet this is valid concerning personal labor whose fruit does not exceed the value of 3,000 francs in a year (art. 39).

And from the law of July 20, 1932, goods acquired by the wife by the exercise of a separate profession, industry, or business - not, however, from things handed over by the husband - are reserved to her and are subject to her dominion and administration: the wife can, without the husband's permission, convert them into other movable and immovable goods, and subject those things thus acquired to obligation, alienate them by onerous title, indeed by gratuitous title for the utilities of the family and for settling common children. Yet these goods, when the community of goods is dissolved, are subject to common partition, unless they are at the same time the wife's proper goods.

Also by the French law of July 13, 1907 and June 8, 1923, the wife can freely manage the gains and goods which she obtained from a separate profession.

187. Italian, Spanish, and Dutch law. - These three come rather close to French law; as also Portuguese law and various codes of Latin America, but it is impossible for us to descend into the particularities of each.

A. Italian law agrees in many things with French law, and admits the dotal regime together with the regime of community, which can also coexist (a. 1425 and 1433). But there are also several differences:

1. As to dowry: after marriage has been entered, a dowry can no longer be constituted or increased (a. 1391). But in the contract, in favor of the surviving spouse, gain to be taken from the dowry can be stipulated; and this as a true credit which, if the children of the deceased spouse are lacking, passes into the property of the survivor, otherwise into usufruct: yet under the condition that it not harm reserved heirs (a. 1398).

2. As to community of goods, it does not admit another except the union of fruits (a. 1433), and this does not include credits and debts existing before the marriage (a. 1435). The husband has administration of the community, but without the wife's consent he cannot alienate or mortgage goods except by onerous title (a. 1438). When the community is dissolved, division is made according to the stipulation of the pact; and if this is lacking, proportionally to the goods of each (a. 1434 and 1440).

3. If a contract is lacking, since the law does not presume any regime, it seems that the goods of each remain separate. Likewise, if a contract is lacking, or is silent concerning the part to be brought for the burdens of marriage, the wife is bound to contribute proportionally to her goods, with the fruits of the dowry, if there is one, computed (a. 1426 and 138).

4. From the recent law of July 17, 1919, full right already belongs to the wife of disposing of her own goods, not dotal nor common, without the husband's consent.

B. Spanish law also admits the dotal regime. But it establishes that, unless there is a special antenuptial pact, it supposes a community of gain or acquisition, to which union all goods pertain unless the contrary is expressly proved (a. 1392-1431). From those common goods are to be paid all debts contracted by husband or wife during marriage, and expenses made for the education of legitimate children even of only one of the spouses; but not fines perhaps imposed upon either one. But when the community is dissolved, first the dowry and paraphernal goods must be restored, then the common debts paid.

C. Dutch law presumes community of goods, which nevertheless the spouses can limit or even totally exclude by a prior convention entered before a notary, and not to be changed after marriage has been contracted (a. 174). - The dotal regime does not obtain special mention in the law.

1. Legal community of goods is understood more strictly than in French law, and is perfect, namely, of all goods, immovable or movable, with their fruits and revenues, and of all debts, even those existing before marriage, so that they are the dominion of the community, i.e., of the man and wife together, and, when the community is dissolved, of themselves are to be divided equally or for a half part (a. 174-177); - nevertheless those goods are excepted which are given under the express restriction that they not pertain to the community (a. 175).

Full administration of the common goods belongs to the husband, who nevertheless, after the likeness of French law, cannot, without the wife's consent, donate immovables, nor the totality or quota of movables, except to donate by condition to the common offspring, nor a movable thing by reserving usufruct to himself (a. 179).

Nevertheless the wife can, without the husband's consent, place acts necessary a) for the exercise of a separate public business undertaken with the husband's consent (a. 168); b) for a contract of leasing work, but for the advantage of the family estate (a. 164), and likewise for the hiring out of her labor (a. 1637); c) for the handing over of money to a public bank (law of July 20, 1895). Likewise, when the husband is absent or not able to manifest his will, in the case of urgent necessity, by permission of the judge (a. 180).

2. Limited community. With great liberty the spouses can in the nuptial pact limit the community of goods (a. 194), and also restrict the husband's administration (a. 195). Thus there can be established only a community of gain and loss (van winsten en verlies, a. 210-212), namely, from the fruit of goods and from industry and labor; or also only a community of fruits and revenues (van vruchten en inkomsten, a. 219), namely, losses being excluded.

3. Exclusion of community can also be established. In which case, the part of the wife's revenues must be determined which must be handed over to the husband for the burdens of marriage; otherwise all fruits and revenues from the wife's proper goods are presumed to belong to the husband (a. 200-201).

The administration of the wife's proper goods, unless the contrary is expressly stipulated, belongs to the husband (a. 160 and 195), who then is liable for damages (a. 160).

188. Austrian, English, and American law. - To this threefold law it is proper that the law supposes separation of goods, unless it has been agreed otherwise.

A. Austrian law presumes separation of goods, unless the contrary has been established by authentic pact (a. 1237). But, unless the wife contradicts, the husband is presumed to have administration and usufruct of all the wife's goods (a. 1238); whence he can freely dispose of the fruits, but is bound to preserve the substance of the goods, otherwise he is obligated to restitution. In doubt, the gain is judged to have been made by the husband (a. 1237).

Before nuptials he can demand a dowry, but can also renounce this right; if a dowry is constituted, the husband has the usufruct of the dowry and its increase (a. 1227-1228), but is obligated to return the substance or an equivalent value, in the case of death, divorce, or cession of goods; whence the one constituting the dowry can from the beginning demand security for this (a. 1425).

If a special pact is entered, one must stand by it: thus community of goods can be established either before or after marriage (a. 1233); in which case dominion belongs to both, usufruct remains with the one to whom it pertained before the pact, but administration of the common goods belongs to the man alone; yet when the marriage is dissolved, half the part of them belongs to the surviving spouse.

The wife has a strict right to fitting support from the husband's goods according to the condition of his state (a. 91); but those things which she receives from the husband, such as ornaments, jewels, etc., pass into her full dominion, unless the contrary is expressly stipulated (a. 1247).

B. By English law, a twofold regime of marriage exists: legal and conventional.

1. The legal system. According to the law of Jan. 1, 1883, a woman who has married preserves her goods, which all are paraphernal, so that she can dispose of them fully, and as to possessing, acquiring, and administering goods she remains of full right, like an unmarried woman. Yet:

a) during marriage, the wife has a right to the fitting support of herself and of the children from the goods of the husband; and, if the husband is constituted in necessity, the wife is bound to support him insofar as possible;

b) when the husband is deceased, the wife has a right during her life to a third part.

2. The conventional system of goods can be entered with full liberty, before and after marriage, according to the spouses' decisions.

Yet from the law of Aug. 9, 1870, the wife can by full right, without the husband's consent, make her own the goods which she acquires by separate industry, so that the usufruct and administration belong to her alone.

C. Law in the United States of North America is not uniform, but diverse in the diverse States. Yet generally there exists a perfect separation of goods, so that all goods of the wife are paraphernal, and the wife has free administration and use of them. But common goods can be constituted with perfect liberty.

But as dotal there can be considered the third part of the immovable goods which the husband possessed during marriage, and which cannot be alienated without the wife's consent; whence concerning this third part neither can the husband make a valid testament. - In certain States a similar right belongs to the husband in the goods of the wife.

189. German law. - It distinguishes a twofold regime in marriage: legal and conventional (gesetzliches- und vertragsmassiges Guterrecht).

A. The legal regime is presumed, unless it is certainly established concerning a conventional regime. In it there are distinguished (a. 1363 sq.):

1. Reserved goods (Vorbehaltsgut), namely, a) things destined for the wife's use alone, such as clothes, instruments, ornaments of the woman (a. 1366); b) things acquired by the wife in a business wholly independent, for example, by exercising the office of midwife (a. 1367); c) things indicated in the conjugal pact, or accepted by inheritance or donation, with the express stipulation that they be reserved goods (a. 1368-69); d) and the fruits of all these reserved things (a. 1370). Concerning these the wife has free disposition, namely, dominion, usufruct, and administration; but if it is necessary, from these she must contribute to the family estate (a. 1360 and 1371).

2. Brought goods (eingebrachtes Gut), namely, all things which are not reserved. Concerning these the husband has usufruct and administration (a. 1373); but he cannot alienate or pledge them (at least immovables) without the wife's consent, and he must administer them diligently and expend the fruits first of all on the suitable support of the family.

But if the wife fears damage from the imprudent administration of the husband, there belongs to her the right of demanding security (a. 1319) or separation of goods (a. 1418).

B. A conventional regime can be constituted according to a fourfold pact; which the spouses can enter before a judge or notary concerning proper goods, and also after marriage they can in the same way dissolve or change it (a. 1432 sq.):

1. Universal community of goods (allgemeine Gutergemeinschaft, a. 1437-1518), by which from all the goods of the husband and wife, both those previously possessed and those to be acquired, one common good (Gesamtgut) coalesces; yet each can exclude certain goods and reserve them to himself or herself. The husband has administration of the common good (a. 1443), but nevertheless in several cases he needs the wife's consent (a. 1444).

2. Community of gain or profit or acquisition (Errungenschaftsgemeinschaft, a. 1519-1557) is a certain composition of the legal regime and of universal community of goods: namely, movable or immovable goods previously possessed remain proper; - there become common both gains made by the spouses and the revenues of the brought goods, whence, when the union is dissolved, the fruits obtained are divided equally between man and woman⁴ (a. 1476). The husband has administration and usufruct; but certain goods can be reserved to the wife, not to the husband, and those things are reserved which in the legal regime are reserved.

⁴ The system can be recommended in second nuptials, lest the offspring of the prior marriage suffer damage.

3. Community of movables (Fahrnisgemeinschaft) is broader, and adds to the community of gain the community of movables possessed by each before marriage, whence almost the same system is present as legal community in French law. Hence the administration of common goods belongs to the husband, who nevertheless cannot dispose of immovables, nor of the universality of movables, nor of a quota of them, without the wife's consent.

4. Separation of goods (Gutertrennung) established before or after marriage according to legal form renders all the goods of the wife paraphernal, but the wife can according to her pleasure concede administration or use to the husband (a. 1430). He is bound to bear the burdens of marriage, but the wife also must contribute something from her own goods (a. 1427).

Let it be noted that universal community, when the man has died, of itself is not dissolved if common offspring are present, but is continued in it (a. 1483); but community of acquisition is dissolved by that very fact (a. 1544), likewise community of movables unless otherwise established in the pact (a. 1557).

190. Swiss law presumes the regime of legal union of goods, unless otherwise expressly stipulated (a. 178) by public act, before or even after marriage (a. 179), but then the permission of the tribunal is required (a. 181), and goods burdened by debts cannot be withdrawn from the payment of debts (a. 188).

1. In the legal union of goods there are distinguished: 1st. reserved goods (Sondergut), namely, a) those which pertain to personal use, such as clothes and ornaments (a. 191); b) the wife's revenues from independent labor, which nevertheless must be employed for the support of the family insofar as is necessary (a. 192); c) those things which are designated as such in the contract (a. 190); 2nd. brought goods, which are all non-reserved goods. These goods of both spouses are united into one whole, of which the husband has administration and usufruct, and also dominion (a. 194-214); but some administration of the family goods is conceded to the wife (a. 203).

The wife is bound to pay from reserved goods the debts which she contracted without the husband's consent (a. 208); but in the case of a collapse of fortune she can reclaim proper goods and demand compensation for those consumed, which compensation, if she cannot recover half the part of the goods, is owed to her before the demands of other creditors are paid (a. 210 sq.).

These things are also valid in the following system.

2. Conventional community of goods, total or partial, is also permitted, which effects not only a union of goods, but also community, so that they become the common dominion of the man and wife (a. 215); whence, when the community is dissolved, common goods are divided into two equal parts (a. 225), unless otherwise established in the nuptial pact (a. 226). The administrator of the goods is the husband; sometimes also the wife, but only as acting in the husband's place (a. 216).

3. Separation of goods can also exist, so that both have full dominion and administration of their own goods (a. 242): the husband is bound to support the family, but can demand that the wife fittingly assist him from her own goods (a. 246). This system arises:

a) either from a nuptial pact;

b) or from law, and indeed by the fact itself of a collapse of fortune (a. 182) or of the death of either spouse;

c) or from the sentence of a judge, in several cases according to art. 183-185.