Section — Prümmer, Manuale Theologiae Moralis
§ 8. On The Dominion Of Spouses According To Swiss Law
25. General Rules.
According to the new Swiss law obliging in all Switzerland from the day 1 Jan. 1912, a conjunction of goods is in force between spouses (Güterverbindung), unless something else has been expressly stipulated.58
If spouses do not wish to adopt the legal conjunction of goods, they must before or after marriage59 choose one of the two other systems, which are called: unity or participation of goods (Gütergemeinschaft), and separation of goods (Gütertrennung); nevertheless it is licit to stipulate certain modifications concerning the individual systems.60
In order that these stipulations and their modifications and introduced changes be valid for the contracting parties themselves and their heirs, it is required that they be signed by the contracting parties themselves (or their legitimate curators) and made by public instrument. In order, moreover, that they have value with respect to external persons who are not heirs of the contracting parties,61 it is necessary that they be inscribed in the register (Güterrechtsregister) of the husband's domicile, and if the husband changes domicile, that this inscription be made within three months in the register of the new domicile.
Stipulations which are made after marriage has been entered are not valid unless the permission of the tutelary tribunal has first been had ("without permission of the guardianship authority").62 Moreover, by no stipulations can any goods already burdened by debts be withdrawn from the payment of those debts.63
The new civil code distinguishes: a) the wife's goods (Frauengut) and the husband's goods (Mannesgut), b) reserved goods (Sondergut) and brought-in goods (eingebrachtes Gut). As reserved goods there are considered:
a) those which are designated as such in the matrimonial contract;64
b) goods pertaining to an altogether personal use (garments, ornament);65
c) revenues had by the wife from independent labor (for example, the art of midwifery, a wage obtained outside the home, etc.).66 All other goods are brought-in goods. Revenues had by the wife must be used for the support of the family insofar as this is necessary.67
A. Legal System Of Conjunction Of Goods.
This system, as is already indicated from the words themselves, conjoins the goods of each spouse into one whole, whose administration and usufruct pertain to the husband.68
The husband not only has administration and usufruct of the wife's goods (excepting fruits from reserved goods), but also full dominion of them;69 nevertheless some administration of the goods of the family is conceded to the wife.70
The wife is held from reserved goods to pay debts which she contracted without the husband's consent.71
In case of collapse of fortune (im Konkurs und bei der Pfändung), the wife can reclaim her own proper goods, if they still exist intact, and for others already consumed demand compensation. Indeed, if she cannot recover at least one half part of her own goods, the compensation owed to her must be made before the demands of other creditors are paid.72
B. Conventional System Of Unity Of Goods.
This system produces a much stricter union of goods than the preceding system, since through it there is effected a perfect union both of the goods themselves and of the revenues, so that both spouses have altogether the same dominion over the united goods.73 ("In the system of general community of goods, a separate ownership of the man and of the wife is no longer to be distinguished. The assets and liabilities of the property-complexes on each side, all that is brought in, inherited, acquired, given, earnings and increase become one common mass, and the owners of this total mass are the spouses.")74
The administrator of the united goods is the husband, and sometimes the wife, but only as taking the husband's place.75
The wife is held from reserved goods (if she still has any) to pay debts which she contracted without the husband's consent.76
In case of collapse of fortune, the same things are valid which were said above in the prior system, n. 4.77
When this union of goods is dissolved (by death or another legitimate cause), the goods are divided into two equal parts,78 unless nevertheless something else has been established by the nuptial pact.79 But in no case is it licit to withdraw from the heirs of the deceased spouse a fourth part (1/4) of all the united goods.80
In this system difficulties can arise for the confessor if the wife has made debts without the husband's consent. These debts must be paid from the wife's reserved goods, or otherwise from savings or extraordinary labors made by her.
C. System Of Separation Of Goods.
- This system among the goods of spouses arises either from pact, or from law, or from the sentence of a judge.81
Separation of goods arises by law by the fact itself: a) by collapse of fortune ("when the creditors in the bankruptcy of one spouse come to loss"),82 and b) by the death of either spouse.
Separation of goods arises from the sentence of a judge in several cases, which you may see in art. 183-185.
In this system each spouse has full dominion and administration of his or her own goods. The husband is held to support the family; nevertheless he can demand that the wife suitably assist him from her own goods.83
In this system no difficulty can arise for the confessor.84
58 Cod. civ. Helv. n. 178.
59 Art. 179.
60 Cf. a. 214, 226, 239, 247.
61 Art. 181, 248, 250.
62 Art. 181.
63 Art. 188. Certainly a very good law, forestalling deceitful attempts!
64 Art. 190.
65 Art. 191.
66 Ibid.
67 Art. 192.
68 Art. 194-214.
69 Art. 195.
70 Art. 203.
71 Art. 208.
72 Art. 210 sq.
73 Art. 215.
74 Cf. Huber, System und Geschichte des schweiz. Privatrechts I, 258 sq.
75 Art. 216.
76 Art. 221.
77 Art. 210 sq.
78 Art. 225.
79 Art. 226.
80 Ibid.
81 Art. 241.
82 Art. 182.
83 Art. 246.
84 For a fuller explanation of the dominion of spouses according to Swiss law, see P. Tuor, Das neue Recht, eine Einführung in das schweizerische Zivilgesetz (Zürich 1912) 147-185.