Section — Vermeersch, Theologia Moralis
§ 2. On Wives
I. Principles. 1. From the very nature of marriage, rather than a spoiler of goods, the wife obtains the husband as a helper of administration, and the husband assumes the burden of supporting the wife insofar as she is in need. At the same time, however, it is consonant with the wishes of nature that a certain society of goods be entered between each spouse.
But because the wife is not a maidservant but the companion of the husband, she can easily presume the consent of the husband in order to make expenses from common goods which the wife is accustomed to care for; she is permitted to give modest and daily alms; if the husband squanders goods, she can, in order to avert grave damage to the family, or to preserve the right which the family has of being supported from the common goods, withdraw those goods, hide them, or place them safely. But hallucination must be guarded against.
Often among the common burdens of marriage are the supports which must be given to needy parents of the wife or to offspring received beforehand. Indeed, where the goods of the wife do not suffice, the husband himself will be held according to his powers to furnish these supports.
With these things set aside, they permit the wife, even beyond what she can give to other poor, moderately and with attention to the condition of the husband, to succor parents or offspring who live miserably according to their state. If, however, she must greatly exceed the limits of customary alms, she ought to take from her own goods whence she may furnish these things. If these are lacking, she should ask the consent of the husband. If he were not reasonably unwilling, the wife could compute what she gives into the part of the goods which will fall to her after the dissolution of the marriage.
- Thus far those things which already have force of themselves without consideration of positive law. But the positive regime itself of goods, which is introduced variously according to various laws and private agreements, affects obligations of conscience not a little. Since they are many and sufficiently complex, the exposition of them exceeds the province of the moral theologian. Indeed care must be taken lest, by an exposition which could be regarded as sufficiently complete, those ignorant of law be deceived. Wherefore we shall recall those laws by certain summary heads, so that at least an occasion may be given of prudently doubting and interrogating experts.
Moreover, for the utility of conscience, each one ought chiefly to see these things in his own region: 1. from what goods the burdens of marriage must be satisfied; - 2. what goods are freely administered by the wife, or at least pertain fully to her as to dominion and usufruct; - 3. what rights belong to each spouse in common goods. For it happens that, during marriage, the husband himself is the sole arbiter and master of the community, only certain acts being prohibited to him. And then, as long as he has contained himself within the limits of the law, he cannot be accused of injustice. But if he were merely the administrator of the society, he will not be able to injure the wife's part.
II. An Adumbration of Positive Laws. 1. Various beginnings of positive law. a) The assumption of a woman as wife can be considered as an acquisition which procures for the man useful work for managing the domestic matter and necessary work for begetting children: then the bride will have to be redeemed for a certain price from those in whose hand or power she was detained; which custom belonged to the ancient Romans, for a long time represented by the symbolic ceremony of coemption (cf. Vidal, Institutiones iuris civilis Romani, n. 317), and of the Orientals; and it still perseveres among the barbarians of Africa today. b) It can also, and better, be conceived as the reception of a companion who will share the offices and burdens of common life and of supporting offspring. Then she herself, or those who hand her over, will strive to bring to the husband that whereby the matrimonial burdens may be lightened for him. This can be done in two ways, either by a certain society of goods, or by a dowry constituted, i.e. by a stable deputation of certain goods to compensating the common burdens. - c) Finally, the causes of persons and of goods can remain separated, so that the logical consequences of common matrimonial life seem to be ignored by positive statutes.
Omitting the first way, which today has become antiquated among cultivated peoples, the second has become most common, so that the third can be called proper to the law (common law) of England and the U.S.A.
- Nuptial pacts. Everywhere it is permitted to the parties to order by private agreements the regime of goods which will be in force through the marriage. And because of their importance, those agreements for the most part must be drawn up by an authentic act before a competent official (notary).
In Latin law, these agreements can no longer be made or changed after marriage. Nevertheless, except the Swiss, Costa Rican, Guatemalan, and Mexican republics (1979), whose laws permit change even after the marriage has been celebrated.
But by Germanic, American, and English law, agreements can be made or changed even after the nuptials have been entered. But in England there is no use of agreements of this kind.
Furthermore, the Latin laws and the Code of Germany are accustomed to foresee and order the chief forms concerning which the parties may easily agree.
Thus by the Code of France and of Belgium the regime of community is distinguished, which for the most part comes into use in Belgium and in the northern part of France, and the dotal regime, which prevails in southern France. In the dotal regime, by the law itself there are distinguished dotal goods, which the woman brought as dowry or which were given to her in the matrimonial contract, and the other goods of the wife, which are called paraphernal. The man administers the dotal goods, enjoys them, but ought to provide for the expenses of common life. During marriage, dotal goods, at least immovable goods, certain cases excepted, cannot be alienated. The wife administers the paraphernal goods and freely disposes of the revenues. If, however, the wife should have no goods except paraphernal goods, she will furnish the common expenses according to the proportionate part which agrees; and if nothing agrees, she will expend a third part of the revenues for this (art. 1575).
Community is distinguished by this mark, that not only (which is common to every regime) is a certain common mass constituted for bearing the burdens of marriage, but besides this, a certain society of goods is effected, whose passive obligations are also determined both by agreement and by law.
N. B. The burdens of marriage are properly the expenses of common life, and the obligations which flow to the spouses from marriage itself; among these, for the husband, the obligation of supporting the wife is placed. Hence, for example, the education of children of a preceding marriage does not come under this name either properly or always.
Concerning common goods, the wife can do certain things as companion of the husband; certain things from the presumed will of the husband, certain things by reason of the destination of the common goods. Cf. Lugo, Iust., d. 16, n. 63.
Community can be constituted with unequal amplitude. For there is distinguished universal community, community of movable things and of things acquired through marriage, community merely of things acquired (di acquisti, communauté réduite aux acquêts). Community can also simply be excluded or the regime of separation positively established. The regime of excluded community indeed takes away usufruct from the husband, but not administration of the goods. The regime of separation of goods takes even this away from him.
The regime to be advised will vary according to the dangers to which the business affairs of the husband are exposed; according to the equal or unequal possession of the family property; according to the condition of the spouses, who either both marry for the first time, or have children from a prior union; according to confidence in the prudent administration of the husband. Negotiations concerning these pacts are accustomed to take place between the parents of each party.
Observe that, in the nuptial pacts of Belgium and France, certain things can be established concerning a future inheritance, although, outside those pacts, clauses of this kind are altogether prohibited and invalid. Nevertheless that faculty is not conceded in every Latin law.
- If no nuptial pacts have been made, the law itself is accustomed to define the regime; and:
a) In Latin law there is established the regime of some kind of community, whether universal, as in Holland, Lusitania, and the Brazilian republic; or of union of goods, as in Switzerland 1; or of movable things and things acquired through marriage, as in the Code of France and in several Codes of Latin America and in the Canadian Code Q.; or only of things to be acquired through marriage, as in the Code of Spain; - b) By the Code of Germany there is established a community of administration in the possession of the husband, and there is attributed to the husband the usufruct of the goods of the wife with the burden of bearing the expenses of marriage; - c) in England and the U.S.A. goods remain separated. Nevertheless, a few States of North America render common the goods which are acquired through marriage.
1 In Switzerland there is distinguished, besides the regime of separation of goods, the regime of union of goods and the regime of universal community. In both, one patrimony is effected from the goods of the spouses, pertaining to each; but universal community embraces more, indeed all, goods.
I. On Dowry. By the name of dowry there is generally understood a certain sum of goods which are donated either to the wife, or even to the husband, for compensating the burdens of marriage. In every regime a dowry of this kind can be brought; and, according to the chosen regime itself, it will remain the property of one or the other or will become common, nor is it ruled by a special law. - In the dotal regime, the dowry brought by the woman has a peculiar statute, in the manner sketched above. - But in England and the U.S.A. (from common law) and also in the Canadian Code Q., by the name of dowry they understand goods by which provision is made rather for the support of the wife and children. For dower, dowry (from the ancient word douaire), in North America and in England, is the life usufruct which the widow obtains in part of the goods of the deceased husband. In the Canadian region, dowry, which can be legal or conventional, falls to the surviving wife; or if she herself dies first, to the children born from that marriage. - Besides, while other laws, e.g. those of Belgium and France, create no obligation of dowering, the Code of Spain (1340, 1341) obliges the father or mother or surviving parent to give to a legitimate daughter in dowry half the part of the presumed legitimate portion, unless, as a minor, she married without the consent of the parents, or unless the daughter already has equivalent goods of her own.
For the security of the dowry, when the dowry must be restored, laws either themselves constitute a legal hypothec in the goods of the husband, or permit a constitution of this kind.