§ 2. On The Dominion Of Spouses According To French Law

19. General Rules:

1. Before marriage, the betrothed (if they are minors, the assistance of the father or guardian is required), as to their goods, have the faculty of entering into all pacts which they wish, provided that these be made before a public notary and are not opposed to good morals or laws.²⁴ If a special pact is lacking, the marriage is considered to have been entered under the regime of community.²⁵

2. After the marriage has been celebrated, pacts previously entered can in no way be changed, unless nevertheless in the case of divorce or through the sentence of a judge.²⁶ This determination is hard, and therefore those about to marry must be very cautious in making matrimonial pacts.

3. Under any regime whatever, the wife cannot without the express consent of the husband: a) give her immovable goods between the living, alienate them, burden them with mortgage, or acquire another's goods (the husband's consent can be supplied by the authority of the judge);²⁷ b) appear in civil judgment.²⁸ Nevertheless, exceptions are given, especially those introduced by the law of 13 July 1907.

A twofold regime of goods is in force: a) legal (communauté légale), b) conventional (régime conventionnel), of which nevertheless the second is again subdivided, so that there are five systems of the regime of goods according to French law.

A. Regime Of Legal Community.

1. This legal community is always presumed unless the contrary is expressly established.²⁹

2. This community coalesces: a) from all movable goods, both present and future; b) from all revenues of immovable goods; c) from immovable goods which, while the marriage stands, have been acquired from common goods. But to each spouse there remain as his or her own: a) immovable goods possessed before marriage; b) immovable or movable goods acquired after marriage by donation or inheritance under the explicit condition that they be one's own.³⁰

3. The wife indeed retains ownership of her own goods, but she has neither administration nor usufruct over them, nor (a fortiori) over common goods (nevertheless she can make a testament concerning her own goods).³¹ But the husband has administration and usufruct over all these goods, and he is held to furnish suitable support to the wife and family. He cannot alienate immovable goods without the wife's consent.

4. This community of goods can be dissolved, not indeed by the consent alone of each spouse, but a) by the death of either spouse, b) by a sentence of divorce or separation of bodies, c) by a sentence of separation of goods.³²

5. When the union has been dissolved, the common goods and debts are divided into two parts between the spouses or their heirs. The proper goods of each spouse remain intact, as is clear of itself. In this separation of goods the wife enjoys certain privileges: a) besides her own goods, she can claim for herself an indemnity to be taken not only from the common goods, but also from the husband's goods; b) she can repudiate the half of the common goods falling to her. The effect of this repudiation is that from the goods left behind the wife can demand nothing except her garments, and her heirs nothing at all; but, conversely, she is not held to pay the debts of the community.

B. Conventional Regime.

This regime is divided into four parts: a) conventional community (communauté conventionnelle); b) regime without community (régime sans communauté); c) regime of separation (clause de séparation des biens); d) dotal regime (régime dotal).

a) Conventional community.

1. Future spouses can by an express pact extend or restrict the legal community just as they wish, provided nevertheless that they stipulate nothing against laws or good morals. "The principal modifications are those which occur by stipulating in one or the other of the following ways, namely: 1) That the community will embrace only the acquisitions [acquisitions which the spouses make by onerous title during marriage. This clause of community reduced to acquisitions is very frequent]. 2) That the present or future movable property will not enter into community, or will enter into it only for a part. 3) That all or part of the present and future immovables will be comprised in it by way of rendering movable. [To render an immovable movable is, in the proper sense, to make it movable. The clause of rendering movable is that which has the effect of making an immovable fall into conventional community in the same way that movables fall into legal community. But under all other respects, the immovable rendered movable remains immovable.] 4) That the spouses will pay separately their debts prior to marriage. [This clause is often to be advised.] 5) That in case of renunciation, the woman will be able to take back her brought-in goods free and quit. [In this case the woman must have the value of the things which she brings at the time of her marriage established.] 6) That the survivor will have a preciput. [The word preciput comes from the Latin praecapere, signifying: to take beforehand. The preciput is the portion of common goods which a spouse, having already exercised his or her prior takings, takes by force of a convention before the division of the community, that is to say, before the composition of the lots.] 7) That the spouses will have unequal shares. 8) That between them there will be community by universal title."³³

2. For the confessor, difficulties cannot easily arise from all these forms of conventions. If some doubt occurs, the words of the contract and the intentions of the contracting parties must be attended to.

b) Regime without community.

1. This regime is very similar to the regime of legal community, concerning which above. In this regime all the wife's goods are dotal.

2. The wife has and retains radical dominion of all her own goods, but the husband has full administration and usufruct of them and is held to the support of the wife and family. In one word: the husband is as it were the wife's steward.³⁴

3. When the marital union has been dissolved, all the wife's goods return under her full dominion.

c) Regime of separation of goods.

1. In this regime all the wife's goods are paraphernal, and therefore the wife has full dominion and administration of them, with this sole exception: the wife cannot alienate an immovable good without the consent of the husband or of the judge.

2. Each spouse, according to the proportion freely established, is held to concur in the support of the family. If a fixed quantity is lacking, the wife is obliged up to a third part of her proceeds.³⁵ "The woman can therefore keep two-thirds of her revenues."

3. But if either spouse is reduced to want, the other must bear the expenses of the family estate.³⁶

d) Dotal regime.

1. This regime agrees with the regime of separation of goods in this, that all the wife's goods are considered paraphernal, unless a) they are expressly determined by the wife as dotal, and b) they are given to the wife in the matrimonial contract.³⁷

2. The husband has usufruct and administration of dotal goods; but he cannot alienate immovable goods constituted as dowry or burden them with mortgages, unless this has been established in the matrimonial contract and in certain other cases designated by law.³⁸

3. While marriage stands, a dowry can neither be constituted nor increased.³⁹

4. The wife has full dominion over her own paraphernal goods. Nevertheless she cannot alienate immovable goods, nor appear for them in civil judgment, without the consent of the husband or of the judge.⁴⁰

Scholion. From what has been said, it follows that in none of the five regimes of French law is the wife altogether independent from the husband; for she can never alienate immovable goods or appear in civil judgment without the husband's consent or the authority of the judge. Nevertheless, she can make a testament against the husband's will. This dependence of the wife upon the husband is fitting to the nature of marriage, because thus many damages are avoided which could arise for the whole family from a bad alienation of immovable goods made by the wife. Nevertheless to some this dependence seems exaggerated, especially if the husband is endowed with bad morals. Hence in almost all the codes of other nations greater liberty is conceded to wives.

In order that the rights of children from a prior marriage be preserved whole, French law provides that from the goods of a spouse married a second time, who has children from a prior marriage, too great a part should not fall to the new spouse. Hence it establishes that a widowed spouse can never give to the new spouse beyond a fourth part of his or her goods. But if he or she has had more (than three) children from the prior marriage, then he or she can concede to that spouse the same part which one legitimate child has.⁴¹

²⁴ Cod. civ. Gall. a. 1387-1390, 1394, 1398.

²⁵ Art. 1400, concerning which below.

²⁶ Art. 1395 and 1443.

²⁷ Art. 217, 219, 1449, 1538.

²⁸ Art. 215, 216.

²⁹ Art. 1400.

³⁰ Art. 1401-1408.

³¹ Art. 226.

³² Art. 1441.

³³ Art. 1497-1527. Cf. C. Picot, Code Napoléon expliqué II, 172 sqq.

³⁴ Art. 1530-1535.

³⁵ Art. 1537.

³⁶ Art. 1448.

³⁷ Art. 1541.

³⁸ Art. 1554, 1557-1559.

³⁹ Art. 1543.

⁴⁰ Art. 1576.

⁴¹ Art. 1098 sqq.