A married woman's property

The fact that a woman marries does not of itself take away or lessen her natural capacity to possess property. Her husband is indeed the head of the family, and is presumed to be better able to administer family affairs than his wife. Moreover, the law of England used to give the husband very extensive rights over his wife’s property. For in general any freehold estate of which the wife was seized at the time of the marriage, or of which she became seized afterwards, became vested in her husband and herself during the coverture, and the husband was entitled to the profits, and had the sole control and management. By marriage a husband became possessed of his wife’s leaseholds in her right. He was not only entitled to the profits and management of them during the joint lives, but he could dispose of them as he pleased by any act during the coverture. The personal chattels of the wife became in general the absolute property of the husband.¹

By degrees inroads were made on the rigour of the common law, and means were found to secure separate property to a married woman. By the Married Women’s Property Acts of 1870 and 1882 great changes were introduced, so that now a woman married after the first day of January, 1883, possesses as her separate estate all her property, whether acquired before or after the marriage. All women who were married before the above date similarly possess as their separate estate all property which comes to them after that date. Practically, therefore, during her life and that of her husband a married woman has rights of property as if she were single.

Furthermore, she has a right to support for herself and her children, even those of a previous marriage, at her husband’s expense, according to her condition in life, and she may effect an insurance on her own or on her husband’s life for her separate use.

¹ Stephen’s Commentaries, 2, p. 277.

A married woman can now make a will and leave her separate property according to law to whom she pleases. In conscience she must of course take account of the needs of her surviving relatives and of other legitimate claims on her remembrance. If she dies intestate, all her personalty goes to her husband; her realty also goes to him for life, afterwards to the only child, or to the eldest son or his issue if he be dead, or to the daughters equally.

766. • 1. A wife cannot contract or dispose concerning her dowry and its fruits, nor concerning the goods of the family, when the husband is present and able to administer these goods, when he is reasonably unwilling. It is otherwise if the husband is absent, insane, or foolish, or if he consents expressly or tacitly, or if he is not reasonably unwilling.

2. A wife can, as she pleases, contract or dispose, even when the husband is unwilling, concerning paraphernal goods, that is, concerning goods which she brought besides the dowry and reserved to herself. - Recall the things said concerning the dominion of wives, n. 548 and following. - See Billuart, Reuter, etc.

767. • 1. A wife generally cannot contract without the special consent of the husband, and in the absence of this without the authority of the judge, as was said in the Treatise on Justice, ibid. - (C.C. 217, 219). And therefore the acts which she placed without such authority must be rescinded if the wife herself, or her husband, or their heirs, but not others, oppose the nullity.

I said, 1. without the special consent of the husband; because a general consent given in the contract of marriage is not sufficient, but it is required that it be special for the individual acts of the wife, and indeed given in writing.

I said, 2. or without the authority of the judge; because the wife can have recourse to the judge if the husband is unwilling to consent, or even cannot consent, e.g. if he is absent, if he is interdicted, etc.

2. Nevertheless a wife can contract without the special consent of the man: 1. when she is engaged in public and separate commerce, because then the husband is judged to consent, except for the alienation of immovables; 2. when she purchases those things which are necessary for the support of the family.

3. According to the general laws, a wife can, as she pleases, dispose of her goods by testament without any intervention of the husband. The reason is that it matters little to the husband, insofar as lord of the woman, what the future testamentary disposition of the wife will be, since a testament obtains its effect only after the dissolution of the marriage.

768. • It is asked: Whether the nullity which affects the contracts of wives is of full law, or ipso facto, or has force only after the sentence of the judge?

I reply. The nullity is not to be held as of full law, since the sentence of the judge is required to declare it. Nor is it absolute, but only relative, or it can be pronounced only in favor of certain persons who alone can invoke it, namely in favor of the wife, the husband, and his children.

769. You will resolve from Gallic Law. - 1. If a wife contracts without the consent of the husband with lesion of his rights or goods, e.g. with respect to the goods of the community, or the revenues to be received by the man, the contract is wholly void. But a wife of bad faith, although in that case she cannot oblige either the husband or the goods of the community, nevertheless is bound to repair the damage inflicted on the other. - Carriere, n. 203, and others commonly, against others who say that the other contracting party ought to impute it to himself that he contracted with her and was thus deceived.

2. The nullity of the contract of a wife can be invoked by the man in conscience, even if he has not suffered lesion properly so called, because the nullity was sanctioned chiefly for his sake.

3. The wife herself also can invoke the nullity of the contract, as it seems, although the law does not precisely intend to favor her; because there does not seem a sufficient motive for excluding her from the benefit of the law, provided she has not deceived the other party. - Carriere, ibid., against others. But she must return all that in which she has become richer, and things must be restored into the same state as they were before the contract, provided she herself was not injured and deceived. Often, however, by reason of fraud she must be excluded from the benefit of the law.

4. A wife who asks another for money as a loan for her husband, obliging herself to restore it in default of the husband, is bound to restore it if the man cannot or will not make restitution; for she was the absolutely determining cause of the contract. Therefore she ought to fulfill the obligation freely undertaken, especially after the man has died; otherwise she would turn out to be of bad faith. A fortiori a wife must restore money borrowed by herself for her own utility, without the husband's knowledge. For thus natural equity cries out. - See Cases, n. 773 and following.

151. I. Preliminary remarks. Husband and wife, by contracting marriage, form a certain society, of which the husband is the head. By natural right the wife remains capable of full dominion, and could not only possess her own goods, but also administer them, yet with the duty of helping to bear the burdens of marriage. But since the husband is supposed to be more skilled in administering economic affairs, and generally is, it is fitting, even when natural right alone is inspected, that the wife effect nothing of any moment in managing goods without consulting her husband. - But in practice what the rights and duties of the wife are has been defined by civil law among the various Nations; perhaps in certain regions it has granted more than is equitable to the man, but in these last times the laws have been changed somewhat, and probably will also be changed, to this end, that the rights of the wife may become more secure.²

¹ Lugo, disp. XVI, n. 64-74; Lessius, l. II, c. 12, n. 82-89; St. Alphonsus, n. 489; Carriere, n. 246-282; Marres, l. I, n. 44-96; Ball. P., n. 51-52 and n. 322-327; Genicot, n. 473-474; Lehmkuhl, n. 892-897.

² Cf. A. Boistel, Des limites a apporter aux pouvoirs du mari, in La Reforme Sociale, Jan. 1902, p. 48-60; Turgeon, Le Feminisme francais, Paris, 1902, t. II, p. 125-172.

152. 1. General prescriptions.³ (A) Spouses can enter any agreement whatever, provided it is not opposed to good morals, to marital and paternal authority, or to civil law. If a special pact is lacking, the marriage is judged to have been entered under the regime of community.

³ Civil Code, a. 1387-1398; Planiol, n. 762-845, Supplement, p. 24*.

(B) Agreements must be entered before the celebration of marriage, before a notary; once entered they can be changed in the same form before, but not after, the celebration of marriage.

(C) Under whatever regime, the wife depends upon the husband with regard to the alienation of immovable goods, and in order to appear in a civil trial; yet that dependence ceases when the matrimonial bond has been dissolved, - or through separation as to bed, according to the law of February 6, 1893.

153. 2. On the principal regimes under which marriage can be contracted. There are three: the regime of community; the regime excluding community; the dotal regime.

(A) The regime of community¹ can be twofold: community is legal or conventional.

¹ In France five marriages out of seven are contracted under the regime of legal community. In the year 1898, 287,179 marriages were celebrated, of which 204,833 were without a special pact, and therefore under the regime of legal community; 68,412 under some regime of community; 10,112 under the dotal regime. - Cf. Bulletin de la Societe de legislation comparee, 1900, p. 562. - Planiol discusses wisely the advantages and disadvantages of community, III, n. 907.

(a) Legal community is had whenever no special contract is entered, or the spouses declare that they wish to contract under the regime of community.

Now under this regime,² there remain proper to each spouse: 1) all immovable goods which were possessed before marriage, or afterward came to him or her from donation or succession, except those which are given under the explicit condition that they ought to be common; or were acquired by onerous title, from the price of a proper good sold; 2) movable goods given with the explicit condition that they be proper.

² Civil Code, a. 1401-1496; Planiol, III, n. 901-1425.

But the following become common: 1) all movable goods, both present and future, except those which are expressly given as proper; 2) the fruits of all immovable goods; 3) all immovable goods bought from common goods during the marriage.

154. These things being posited, while the community remains, the wife retains ownership, but not the administration of her goods, which passes to the husband; nor usufruct, which passes to the community, of which the husband is the head and administrator. And so she cannot alienate her own goods without the consent of the husband; likewise the husband cannot alienate the goods proper to the wife without her permission. - With regard to common goods, the wife enjoys neither administration nor fruition, but has a right to honorable support, according to her condition. But the husband, as administrator of all these and owner of one half part, has the right of selling, alienating, or burdening them with mortgages, without the consent of the wife, according to the limits fixed by law.

155. When the community has been dissolved (by death, divorce, separation of bodies or goods, or the very long absence of one spouse): 1) the wife recovers full dominion over all goods which are proper to her; 2) with regard to common goods, she can either vindicate for herself one half part, if she wishes to pay one half part of the debts; or repudiate this half, if she does not wish to be burdened by the common obligations: in which case she can demand nothing besides clothing. - When she vindicates the half for herself, she ought to take care that an inventory be made, so that frauds may be removed more efficaciously, and that she not be burdened by common debts beyond the proportionate part of the profit which she receives from the common goods; this indeed she obtains, provided that this inventory has been made in good faith.

156. (b) Conventional community is had when the spouses by a special pact extend the legal community, e.g., by declaring that all movable and immovable goods, present and future, will be common; or restrict it, e.g., by establishing that only those goods are common which during marriage were acquired from the revenues of each (communaute reduite aux acquets),¹ or that common goods are to be divided not equally, but according to a given proportion.²

¹ Concerning this regime see Civil Code, a. 1498-1499, Supplement, p. 35*.

² Concerning these see Civil Code, a. 1497-1528; Planiol, III, n. 977-1014.

157. (B) The regime excluding community³ can be had in two ways: (a) without community of goods; (b) with separation of goods.

³ Civil Code, a. 1529-1539; Planiol, n. 1416-1462.

(a) Without community of goods: then the wife preserves direct dominion over her goods, or at least over their value; but the husband has the usufruct and administration of the same, excepting those which have been specially reserved to the wife, and with the burden of providing for the honorable support of the wife. - When the regime has been dissolved, the wife recovers full dominion over her goods, but cannot reclaim the fruits already received by the husband.

(b) With separation of goods: each spouse retains not only ownership, but also the usufruct and administration of his or her goods; nevertheless the wife cannot exercise the right of alienating immovable goods without the husband's consent. Each spouse ought to sustain the burdens of marriage according to a proportionate part; if a pact is lacking, the wife ought to hand over a third part of her revenues to the husband. If either falls into poverty, the other ought to bear the burdens of the domestic matter.

158. (C) The dotal regime is especially situated in this, that the dotal goods of the wife, at least immovable ones, cannot be alienated. This regime is not had unless the spouses expressly declare that they enter marriage under this regime. Then the goods of the wife are of a double kind: dotal, which by the nuptial pact are constituted as dowry (during marriage they can neither be constituted nor increased); and paraphernal, which are outside the dowry; for the general rule is that all goods are paraphernal which are not explicitly constituted as dotal in the nuptial pact itself.

(a) The wife retains direct dominion of the dowry, but its administration and usufruct are in the hands of the husband. - Immovable dotal goods can neither be alienated, nor obligated, nor prescribed, even if the wife consents, except in a few cases excepted by law. But movable dotal goods can more probably be alienated, yet with the burden of restoring their value when the marriage has been dissolved.

(b) With regard to paraphernal goods, the wife retains administration and usufruct, but without being able to alienate immovable goods without the consent of the husband.

The dotal regime or separation of goods protects the rights of the bride better, but imports a certain distrust toward the husband; moreover, in a case, money which is often required for commerce is borrowed with greater difficulty. Hence, in practice it is often expedient to embrace a mixed regime, especially that which is called communaute reduite aux acquets.

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.

2. 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.

3. 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.

4. 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.

2. 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.

3. 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.

20. 1. Just as French law and German law, so also English law recognizes two regimes of goods, namely legal and conventional.

2. The legal system now in force must be taken from the Married Women's Property Act, 1882, which law indeed is in force from the day 1 Jan. 1883.

3. During marriage the husband retains scarcely any right in the wife's goods, and therefore all the wife's goods are paraphernal in the most perfect sense, so that the wife can freely dispose of all her own goods.

4. During marriage the wife has a right to the suitable support of herself and her children from the husband's goods. If nevertheless the husband himself is constituted in necessity, the wife is held to support him insofar as it is possible.

5. When the husband has died, the wife has a right, during her own life, to the third part "of all the lands and tenements of which her husband was seized or possessed in fee simple or fee tail at any time during the coverture, and of which any issue that she might have had could have been heir."

6. A conventional system of goods can be entered most freely, both before and after marriage, between spouses according to their own wishes.⁴²

⁴² Cf. Slater, Princ. theol. mor., de iust. c. 7, § 3.

21. 1. The United States of America does not, even today, have a uniform law concerning the goods of spouses, but diverse laws are in force in diverse states.

2. Nevertheless, generally there exists between spouses a perfect separation of goods, so that all the wife's goods are not only paraphernal, but also so that the wife has free administration and use of her own goods. Nevertheless common goods can also be constituted.

3. The wife is not held to pay the husband's debts, nor the husband the wife's debts, unless nevertheless it is a question of debts contracted on account of the family.

4. As dotal goods there can be considered the third part of the immovable goods which the husband possessed during marriage and which therefore cannot be alienated without the wife's consent. These dotal goods the wife can claim for herself after the husband's death, and therefore concerning this third part the husband cannot make a valid testament. In some states this right also belongs to the husband in the wife's immovable goods. "So in Maryland according to the new law of 1898 every husband shall acquire by virtue of his marriage an estate for his life in one third of the lands held or owned by his wife at any time during the marriage whether by legal or equitable title."⁴³

5. Since so great a liberty of disposing has been conceded to spouses in the United States, a difficulty will not easily occur for the confessor. If some nuptial pact exists, its clauses must be attended to.

⁴³ Cf. Tanquerey, Suppl. pro Mai. Britannia p. 11, and Sabetti, Compend. theol. mor. n. 358.

Positive law, for the good both common and private, has restricted the capacity of possessing that belongs to every intellectual nature. The capacity of ownership has been restricted in children under paternal power and minors, in wives, in moral persons (for example municipalities, convents, etc.), in those civilly dead and interdicted, in religious and beneficed clerics.

There will be discussion of those civilly dead and interdicted in n. 1042, of religious and clerics in n. 2156, 2245.

The goods and rights of children under paternal power (and of other minors) vary greatly among various peoples. We shall here relate the principal laws that exist concerning this matter (recall the things said concerning distinction of persons, n. 698). Since these various laws establish rights for the common good, they oblige in conscience (cf. 838, 1).

858. From Roman Law, in the goods of children under paternal power there are distinguished: 1. camp goods, which the son or ward acquires for himself from military service, or on the occasion of military service; to which quasi-camp goods come nearest, which he acquires from civil service or from public offices, for example of judge, advocate, lector, physician, cleric, etc.; - 2. adventitious goods, which come to a son under paternal power either from his mother, or from the maternal line, or in consideration of his mother, or by another way, for example inheritance, donation, fortune (as if he finds a treasure), business with non-paternal goods, or in his own name, etc.; - 3. profectitious goods, which a son receives from his father, or in consideration of his father, or which he gains from the things of his father by doing business in his name (Doveri, Instit. di Diritto rom., l. 1, § 134).

859. From the new Codes, the goods of children are generally divided into a double class. The former comprehends goods obtained by children by labor and separate industry, or those that are given to them with the express condition that their usufruct not come to the parents. The latter embraces all other goods that come to children, for example by donation or by another similar title.

860. Moreover, as regards both these kinds of goods, one must diligently distinguish between direct ownership, administration, and usufruct. - 1. Direct ownership of all goods that come to children by just title pertains to them, although they are minors and not emancipated, since they are capable of such ownership. Just title is donation, inheritance, separate industry, etc. - 2. Administration of all goods is in the possession of the father or guardian, who must supply the incapacity or inexperience of the children, until they themselves are of age or emancipated. Those of age obtain full administration of their goods, but emancipated persons restricted administration. - 3. Usufruct belongs either to the children or to the parents, according as positive law establishes.

861. In France. Usufruct, generally, pertains to the father (or, he being dead, to the mother remaining in widowhood), until the emancipation of the children or the completed eighteenth year. From the proceeds, however, the offspring must be fed and educated according to their condition. - We said generally, because there are excepted: 1. goods that children obtain for themselves by their own labor and separate industry; - 2. goods that are given to them under the express condition that their usufruct not come to the parents. Civil Code, 384-387.

In Italy. Usufruct is conceded to the father or mother having paternal authority, until the children are of age or emancipated. It is lost by either parent who, after the death of the spouse, contracts new nuptials. Fructuary parents are held to procure for the offspring such education as is consonant with his fortune and condition. - There are excepted: 1. goods that children acquire for themselves by their own labor and separate industry; - 2. goods that are given to them with the condition annexed that the parents not perceive usufruct; - 3. goods that come to them, according to the disposition of law, while the father dissents. Code, 228-239.

In Spain. Usufruct is generally conceded to the father (or mother having paternal power). There are excepted a) goods that are given to children so that they may serve for their education; - b) goods that children acquire by separate industry, if with the father's consent they live at their own expense outside the paternal home; - c) goods of children who have been recognized or adopted; indeed the father cannot even administer the goods of these unless security has been given (Gury-Ferreres, n. 545). Code, 160-162, 166.

In Austria. Usufruct belongs to children even minors and not emancipated, the expenses of education nevertheless being deducted. And although a son not yet emancipated does not have the administration of his goods, nevertheless he can freely (and therefore also validly, if nothing else opposes from another source) dispose: 1. of goods acquired by his own industry, provided he himself does not receive support from his parents; 2. of goods that are attributed to his use, provided he is pubescent (Delama, n. 37). Code, 149 seqq.

In Germany. The new law distinguishes the goods of children under paternal power into free and not free. - Those are called free: 1. which children have obtained for themselves by their own labor and separate industry; - 2. which they have received by gift, the parents being excluded from usufruct; - 3. which, by living sparingly, they have set aside from goods that had been conceded to them in full power for living, while they lived outside the paternal home. - All the rest are called not free. The father has the usufruct of these with administration, until the time at which the son passes out of paternal power. The usufruct of free goods belongs to the son, but administration to the father or to the third person to whom the author of the goods committed it (Pelt, o.c., p. 34 seqq.). Code, 1617 seqq.; 1649 seqq.

In England. Usufruct pertains to the children. But whether the expenses of education must be refunded from the goods of the father, or from the goods of the children, the tribunals are accustomed to decide according to the circumstances of the case (Crolly, n. 456-465).

862. Special Questions. It will not be beside the matter here to institute discussion both concerning the right to wages that children acquire when laboring for their father, and concerning the right in small and movable goods that they receive from parents or kinsmen.

I. Concerning Labor in the Paternal Home. 1. A minor son does not have a strict right to wages for ordinary labor that he performs for the advantage of the family; but he possesses that right for extraordinary labor. Reason for the first: parents can by right require that he labor for conserving and increasing the domestic estate; this labor of minors is owed from piety. - Civil law also agrees, for example German Law, § 1617. Reason for the second: extraordinary labor (i.e. that which exceeds the expenses of living, or by reason of age or condition is not owed) is equated with labor undertaken by strangers, and therefore it merits wages. Cf. St. Alphonsus, III, n. 488, 544, 810; Lugo, o.c., disp. 5, n. 42; Delama, n. 34, q. 1.

2. A son of age, for labor even ordinary, of itself merits wages: for they are owed to a stranger; hence, by parity, to a son of age. But it must be considered that a son of age is sustained by his father, that by his labor he also amplifies the father's estate. From this it follows that the wage owed to the son often must be diminished, namely with expenses for food, clothing, and habitation deducted, and with attention given to the hope of inheritance.

Note. Some authors attribute to the son, even a minor, a strict right to wages; others deny that a son of age possesses a right to salary for ordinary labor. Cf. the diverse opinions apud Tanquerey, II, n. 149; Noldin, II, n. 354; Lehmkuhl, in Theol. mor. and in Cas. Consc.; Delama, l.c. ad 1. Besides, some civil Laws (for example German Law, n. 1617) in general deny children a right to wages. - From this it follows: parents do not act unjustly if they do not increase the inheritance for laborious children; but children who, before the separation of goods, have set something aside for their labor, after the fact are not to be compelled to restitution, especially if other children contributed nothing toward increasing the domestic estate. But since the right to wages for ordinary labor, on the part of children of age, is not altogether certain, before the fact there is not securely present a right of compensation (n. 917).

II. Concerning Labor Outside the Paternal Home. 1. A minor son laboring outside the home, and hired out by the father, labors in the name of the father. Therefore the profit that he acquires seems to be a profectitious good, pertaining to the father. Reason: the same debt of piety, which we indicated above, flourishes here. Nevertheless, he does not certainly sin against justice if he retains something. Cf. German Law, 1651.

2. A son hiring out his own labors makes the profit his own. He would be held from justice to pay something to his parents if he were living at the expense of the family; from piety if the necessity of the parents were present.

3. A son doing business in the name of his father makes his own only that which he has gained from special industry, even if by theft he had procured his father's money for himself. Indeed, in this last case, if namely he intends to do business in his own name, the whole profit is to be ascribed to the son (Lehmkuhl, I, n. 565).

III. Concerning the Right in Goods Received. 1. In goods that are not immediately consumable by use, as garments, books, etc., a child under paternal power possesses only useful ownership; for, from common sense, the child, as regards those things, does not receive property, but only use. Therefore he cannot without the consent of parents or kinsmen, at least reasonably presumed, sell, give, or alienate them.

2. In goods that are consumable by first use, as foods or money, if they have been given without any condition, a child under paternal power has perfect ownership: therefore he can dispose of them at will. - But if they have been given under some condition, for example of buying books, paying board, etc., he sins against justice by spending them for other uses.

Whether, and when, a child under paternal power is held to restitution, see n. 907.

863. Things to be noted beforehand. 1. Goods serving in marriage can be ordered in many ways; hence it is necessary to know the diverse regimes of goods, so that the ownership of each spouse may be rightly delimited. - 2. The goods of wives can be either dotal, or paraphernal, or common (III, 489; H. Ap., tr. X, n. 5). This depends either on the will of those about to marry, or on law.

Dotal goods are those that are handed over by the wife, or by parents, or by another to the husband, for sustaining the burdens of marriage, i.e. for providing for the family.

Paraphernal goods (extra-dotal) are those that the wife has besides the dowry, and in which there is no right of the husband, except that which she herself has committed to him. - To paraphernal goods are to be reckoned those which a wife acquires for herself by peculiar skill, by administering the family estate more prudently and attentively, or by subtracting for herself from the goods conceded to her by her husband for food, clothing, and recreation.

Common goods are those that from the pact of the spouses (or from law supplying the place of pact) are brought into society. To these are rightly referred those things that either spouse acquires by ordinary labor and by care of the family estate.

Authors sometimes speak of goods of the family. These are those that have been given for the prosperity of the family or are acquired by common labor, although they cannot always be called common, because the husband can have ownership of them (Noldin, II, 376, c.).

864. Principle. From natural law, either spouse remains owner of his or her own goods, with the obligation of sustaining, according to a proportionate part, the burdens of marriage; but from positive law and from pact, the rights of spouses in goods can be very diverse. Therefore let us see the principal dispositions that the various Codes, or laws, of various peoples contain concerning this matter.

Roman Law. 1. It adjudicates the usufruct and administration of dotal goods to the man, but property to the wife; and therefore, when the man is dead, she is preferred to all his personal creditors for reclaiming the dowry. She can also reclaim the dowry during his life, if it is feared that the man may become unable to restore it. But if the dowry consists in money or consumable goods, or even in stable goods that are handed over to the man valued and with the intention of sale, then the man acquires full ownership, with the obligation of restoring the value when the marriage is dissolved; and therefore, if goods of this kind perish, they perish for the man. - 2. Of paraphernal goods the wife has full ownership and use. - 3. Of common goods (if they are present from a special pact) the property and use pertain to both spouses; but administration to the husband alone (III, 542; H. Ap., l.c.).

865. French Law.⁰¹ It concedes to the betrothed, before marriage, the faculty of making as regards their goods all the pacts that they wish, provided these pacts happen before a public notary, and are not opposed to good morals or laws, or to paternal or marital authority. But if the making of a pact of this kind is omitted, the betrothed are judged to enter a legal community. Now:

I. The Legal Community stands thus: 1. Immovable goods acquired before the nuptials, or afterward coming by donation or succession, remain proper to each spouse. But the proper goods of the wife become quasi-dotal, and the husband alone has their usufruct and administration; yet in such a way that without the wife's consent he cannot alienate them. - 2. Common become both movable goods possessed before marriage, and the fruits of immovables and other revenues, and also immovables acquired in marriage from the goods or by reason of the community. The husband can alienate, pledge, etc., these goods without the wife's consent. Yet concerning immovables, or concerning the totality or a quota of movables, he cannot dispose by gratuitous title. When the community is dissolved, the goods and burdens are divided into two parts, unless the wife or her heirs prefer to renounce the goods, and thus exempt themselves from the burdens.

II. By the Conjugal Pact can be constituted: 1. The regime of conventional community, by which the legal community is extended or restricted with respect to goods. - 2. A regime excluding community (but without separation), namely by which all the goods of the wife become quasi-dotal, and are handed over to the husband for use and administration, without the faculty of alienating. - 3. The regime of separation, by which all goods of the wife become quasi-paraphernal; for the wife retains the use and administration of all her goods, and contributes to the burdens of marriage only a third part of her revenues according to the norm of law, or another sum,

and this determined, whose full ownership is transferred to the husband. - 4. The dotal regime, by which dowry strictly such is constituted, nearly as in Roman Law.

It should be noted: a) There is no regime in which the wife is entirely independent from the husband;⁰¹ namely none in which she can alienate her immovable goods, or present herself in civil court, without the authority of the husband or judge. Nevertheless, even against the will of the husband, she can make a testament. - b) In the prenuptial contract, the betrothed can mutually receive certain donations from themselves or from others, which after the nuptials are prohibited by law.

866. Italian Law.⁰² It has these things proper to itself: 1. Dowry is generally constituted according to the rules of Roman Law (n. 864). This can also embrace future goods of the bride; but after the marriage has been entered, it can no longer be constituted or increased by the spouses. - 2. The betrothed before the nuptials can enter community, not indeed of goods, but of the fruits proceeding from those goods themselves, whether movable or immovable, whether present or future. But that society cannot comprehend debts and credits existing before the marriage. In other matters, Italian Law agrees sufficiently with French Law.

Spanish Law.⁰³ Dowry can be constituted, as in Roman Law; likewise paraphernal goods. But a prenuptial pact, which can be instituted, being excluded, the legal community flourishes, as in French Law. When the community is dissolved, first dowry and paraphernal goods must be restored, then common debts paid (Gury-Ferreres, n. 551, where all things are treated at length).

867. Austrian Law.⁰⁴ The goods of wives are subjected to almost the same rules as in Roman Law. - Only these things are to be noted: 1. Community of goods can be stipulated, whether before or after marriage has been entered, but under the conditions and in the form prescribed by law. Regularly, community is judged to have been entered only for the case of death; and therefore, during marriage, the property of common goods belongs to both spouses, the usufruct to the one to whom it belonged before the pact, and administration to the husband alone. When the marriage is dissolved, from the common goods that remain, half pertains to the surviving spouse. - 2. A special pact being excluded, either spouse retains the right of property of his or her own goods, and also the exclusive right to all those things that he or she acquires for himself or herself during the marriage, or that come to him or her. Yet the use and administration of the wife's goods are judged to have been handed over to the husband, as long as she has not contradicted. In doubt, because the wife must help the husband, the profit is presumed to have been made by the husband.

868. German Law. There is a legal or conventional regime (cf. Pruner, n. 609; Pelt, o.c., p. 39).

I. The Legal Regime⁰⁵ imitates the dotal law of Roman Law. Administration and usufruct of dotal goods belong to the husband, who nevertheless, if the wife requests it, is held to explain the state of the things;⁰⁶ nor can the husband alienate or pledge those goods without the consent of the wife. But that they may be placed in safety, there belongs to the wife the right of seeking security or separation of goods. But ownership of paraphernal goods and their free administration are in her possession. As regards debts, see § 1410-1426.

II. The Conventional Regime admits various pacts, which can be entered before or after marriage, and even after marriage be dissolved or changed.⁰⁷ - 1. Universal community can be instituted, by which all goods of the spouses become common, both those possessed before marriage and those acquired afterward; but it must be well noted that in this community of goods either spouse can reserve certain goods to himself or herself, which in the dotal regime and in partial community is granted to the wife alone;⁰⁸ or partial community, by which only a determined part becomes common. This community is twofold: a) community of acquisition, in which both profits made by the spouses and revenues of goods brought in become common goods; but goods, both movable and immovable, possessed by either before marriage remain proper to each. The wife (but not the husband) can reserve paraphernal goods to herself; - b) community of movable goods, which adds to community of acquisition the communion of movables possessed before marriage, and is subject to nearly the same rules as the legal community in French Law.⁰⁹ Administration of common goods belongs to the husband, who nevertheless cannot dispose either of immovables, or of the totality or quota of movables, without the consent of the wife.

2. Separation of goods can also be instituted either from the beginning, or during marriage, in which case the goods of the wife are held as paraphernal.

Under any regime, the wife can, without the consent of the husband, accept or repudiate an inheritance, legacies, and gifts offered to her.

In marriages contracted before January 1, 1900, the condition of goods continues to subsist according to the laws that flourished up to this time.¹⁰

869. English Law. From the year 1870 (August 9), a wife can by full right make her own, without the consent of the man, those goods that she has acquired by separate industry (by separate art or trade), so that both usufruct and administration pertain to her alone. - By the more recent law also (January 1, 1883), a woman who has married remains of full right, like an unmarried woman, concerning possessing, acquiring, and administering her goods. Wherefore, as regards the right of the husband, one must see what goods perhaps were conferred on the husband in the marriage contract.¹¹ - Concerning the inheritance of the husband or wife, see n. 1076-1078.

870. From the things said conclude: 1. Before marriage justice is violated: a) by either spouse, when one deceives the other concerning goods, by amplifying them, or concerning debts, by concealing them; - b) by both, when in the prenuptial pact they express what is false (for example if the bridegroom declares that a dotal good was given to him, which in fact was not given), so that a third party is deceived thereby.

2. After marriage injustice is committed: a) by the wife, if from goods either common or personal to the husband she takes away anything that is necessary neither for her own support nor for the support of her own people (father, mother, or offspring received from a prior marriage); or if in alms and gifts she exceeds the custom that other wives of the same condition observe; if, when the marriage has been dissolved, she renounces the community, or does not make an accurate inventory, in fraud of creditors; - b) by the husband, if he dissipates the dowry of the wife, or her paraphernal goods, or common goods, by juridic acts against the tenor of law, for example by giving by gratuitous title some immovables, or the totality or quota of movables; and in all these cases he is held to restitution.¹²

The question is whether a husband who dissipates common goods unworthily, by living lavishly, yet not against the tenor of civil law, besides the sin against piety that he certainly commits, also sins against justice? It is controverted: authors commonly affirm, in the case in which the wife has handed over all her goods, or the greater part of them, into community; otherwise, if she has handed over only the fruits, as happens from Italian Law (St. Alphonsus, III, 541, 5; Marres, de Just., n. 69).

Things to be noted as regards the wife. The wife is not a maidservant, but a companion, a helper of the man. Therefore it is equitable that there be conceded to her a certain liberty in administering the domestic estate, in making ordinary alms, and this even if the man does not know it, or, from hardness or avarice, is altogether unwilling. Cf. Ami du Cl., 1913, p. 377.

Therefore a wife can, if the man squanders goods to the detriment of the family, hide them and reserve them for the good of the family; or subtract something for the necessary expenses of the family. - She can also, if she does not have paraphernal goods, nor the man wish to give what is necessary, take something from the common goods, provided it is not very notable, for relieving the necessity of parents or children received from a prior marriage (probably, also brothers and sisters). - Finally she can employ means so that, according to her condition, after the man's death necessary things not be lacking to her: understand, if law has not sufficiently foreseen all things (cf. German Law, 2303).

605. • By English and American common law, the goods of a wife can be said to be of three kinds, namely dotal, paraphernal, and common.

Under the name of dotal goods (Dowry or Dower) among us comes that which, according to the laws of each State, must be left from the goods of the husband to the surviving wife, namely, by common law, the usufruct of the third part of immovables during her life.

In Louisiana dowry "means the effects which the wife brings to the husband to support the expenses of marriage."¹

That which is termed by the civilians vidualitia, though we call it also dowry or dower, in the legal sense of the word is not a dower, but only that part of the goods of which the wife, after her husband's death, is heiress ad intestato, which, according to the common law, is the third of the personalty of the husband leaving issue, or a moiety, if he dies without issue.

606. • Paraphernalia are called those things which have been wholly reserved in the full dominion of the wife.

What these are from common law would be said almost uselessly, since the dispositions of common law concerning this matter have been changed in almost most States. Consult, if you please, Wells's Every Man, etc.² - But see the dispositions of common law, if you please, apud Kent.³ - For the law of Louisiana see Civil Code of Louis.⁴

Everywhere the following can be held as paraphernalia: both 1° paraphernalia strictly so called, or the wife's personal apparel and ornaments, suitable to her rank and condition in life; and 2° that which is called "pin-money," i.e. a sum payable by the husband to the wife, in virtue of a particular arrangement, and to be applied by the wife in attiring her person in a manner suitable to the rank of her husband, and in defraying other personal expenses. Finally 3° those things also ought to be held as paraphernalia which either by the laws of each State, or by antenuptial agreement, are reserved to the full dominion of the wife.

607. • Common goods among us can be called immovables which are given simultaneously to husband and wife during the marriage, or which are bought by them together. Concerning these our law establishes: "They" (the husband and wife) "are both seised of the entirety, and neither can sell without the consent of the other, and the survivor takes the whole."¹

Except Louisiana, where "the partnership ... of acquets or gains ... arising during coverture" (i.e. while the marriage stands) "exists by law in every marriage contract in the State, where there is no stipulation to the contrary."¹ "The community of acquets and gains ceases on the death of either party, and the survivor takes only his or her undivided moiety of the common property."²

608. Questions. - Quaer. 1° Can a wife distribute alms from goods that are not paraphernal?

Resp. In the affirmative, even if otherwise she has paraphernalia or her own goods, provided this is done according to the custom of other women of that place and condition. The reason is that a wife is not a slave, but a partner; therefore she ought to have a certain administration in the house of the husband. - Then the husband, merely ignorant, is deservedly presumed to consent in those things which are done by the wife according to the honest custom of the region and of her condition; and if he shows himself unwilling, such dissent is judged irrational, because a husband cannot deprive his wife of a right conceded to her by legitimate custom. - So with the common sentence, Lugo, St. Alphonsus.³ - Moreover, if a wife were to acquire something by extraordinary labor after having spent due care upon the governance of the family; or if by thrift she were to subtract something from what has been conceded to her for solace, clothing, etc., she can likewise dispose of it for other uses, if nothing else stands in the way. So theologians from the rules of equity.

609. • Quaer. 2° Does a wife sin by taking something from goods that are not paraphernal in order to relieve the necessity of parents or children who were received from a prior marriage?

Resp. In the negative, if she does not have paraphernalia and the husband is unwilling to give what is necessary, because by natural right a wife is bound to feed the aforesaid blood-relations, and the husband is bound to consent to this.⁴ What is said here of parents and children certain authors also extend to brothers and sisters of the wife.⁵

610. • Quaer. 3° Is a wife bound to restitution of goods received in this way, either from paraphernalia, if she has or is going to have them, or from those things which will come to her when the husband has died?

Resp. In the negative, if these goods are of small moment, because then they are held as alms (n. 608). In the affirmative, if they are of greater moment,¹ such as those whose subtraction has brought notable detriment to domestic administration.

Note. - If the husband squanders or wastes goods to the detriment of the family, the wife will be able to hide them and reserve them for the good of the family; likewise from common goods she can disburse, or even, when the husband resists, secretly take for herself, those things by which she may procure for herself and the children from the present marriage what is suitable to their state, or avert spiritual or temporal damage from the husband or family, for example that sacred rites may be performed for the dead.²

611. • Quaer. 4° Is a husband bound to restitution who spends prodigally or badly a notable part of common goods?

Resp. Affirmatively; because in our law these goods are possessed whole by each spouse, and indeed in such a way that neither can sell them without the consent of the other, and, when either has died, the other obtains perfect dominion in them.

It is disputed as to States where community of goods is held in the meaning of French law. To us the affirmative sentence seems more probable, since the husband is only the administrator, not the sole owner of the common goods.

840. • By our law a wife can contract:

1° Concerning goods of which she has perfect dominion (see n. 605 sq.). Yet she cannot hand them over to her husband by Common Law unless a) by a written instrument she has testified her free consent, and b) while the man is not present, she has been questioned concerning it.¹

2° As to those things which are necessary for her condition and decent support, except nevertheless the case in which either with an adulterer, or otherwise without grave cause, she has departed spontaneously from the home of her husband (n. 445. 3°).

3° Where, as is permitted to her in certain States, she attends to public and separate commerce.

841. Resolutions. - 1° If a wife contracts without the consent of the husband with injury to his rights or goods, the contract is altogether void. But a wife of bad faith, although in that case she cannot obligate the husband, is nevertheless bound to repair damage inflicted upon another.

2° Nullity of the wife's contract can be invoked by the man in conscience, even if he has not suffered injury properly so called, because the nullity is sanctioned chiefly for his favor.

3° The wife herself can also invoke the nullity of the contract, as it seems, although the law does not intend precisely to favor her; because there does not seem a sufficient motive for excluding her from the benefit of the law, provided she did not deceive the other party. - But she must return everything in which she has become richer, and things must be restored into the same state as they were before the contract, provided she herself was not injured and deceived. But often by reason of deceit she must be excluded from the benefit of the law.

4° A wife who asks money from another as a loan for consumption for her husband, obligating herself to restore it in default of the husband, is bound to restore if the man cannot or will not make restitution; for she was the cause absolutely determining the contract. Therefore she must fulfill the obligation freely taken up, especially when the man is dead; otherwise she would become of bad faith. A fortiori a wife must restore money borrowed by herself for her own utility, without the husband's knowledge. For thus natural equity cries out.

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).