Property Rights of Married Women

376. Declarations. 1. In order that it can be judged whether the way of acting of spouses concerning temporal goods is just or unjust, one must first investigate which goods are common to them, which are proper, and what rights in both proper and common goods belong to the spouses. Moreover, these rights of spouses depend on the contract which they enter into before marriage (by an authentic act before a notary), or on the regime (system), as they call it, under which they contracted marriage. For those about to marry can freely choose the system according to which disposition is to be made concerning their goods, and to the chosen system add whatever agreements they wish, provided these are not opposed to good morals and are not prohibited by law. Now there are three chief systems according to which spouses are accustomed to enter marriage with respect to ownership of temporal goods: a. the system of community; b. the system of separation of goods; c. the dotal system. But if spouses contract without a special agreement, they are judged to follow that system which commonly prevails in that region. The rights which belong to spouses concerning temporal goods in the individual systems are contained in the civil codes.¹

2. The goods of spouses are distinguished in this way:

a. Dotal goods (eingebrachtes Gut), which are handed over by the wife or by another to the husband for sustaining the burdens of marriage.

Dotal goods occur not only in the dotal system but also in other systems, since in any system a dowry is brought by the wife. It rarely happens that ownership of dotal goods is transferred to the husband; ordinarily their ownership remains with the wife, but administration and usufruct pertain to the husband.²

b. Goods besides the dowry or proper goods, which the wife has besides the dowry, whether she acquired them by inheritance or by donation or by her own and extraordinary industry.

alpha. Ownership of those things which the wife acquires for herself by her own labor distinct from the care which is owed to the domestic estate, for example, by painting or by trading with her own goods, belongs by strict right to her until she contributes them into common.³

beta. The wife retains ownership and usufruct of these goods, but ordinarily the husband has administration.

c. Common goods, which spouses contribute into common either from pact or from disposition of law. Each spouse exercises ownership (common ownership) or co-ownership of these goods, but their administration is with the husband.

From common goods there are to be distinguished goods of the family, which sometimes are also called common. They are those which are acquired from the undivided custom of life and from the common labor of each spouse, whose ownership nevertheless belongs to the man alone by force of law.

¹ C. A., Section 1217-1266; C. G., Section 1363-1563.

² C. A., Section 1227 ss.; C. G., Section 1363.

³ Ballerini-Palmieri, III, n. 52.

377. Rights and obligations of the husband. 1. In administering common goods, wide power is granted by law to the husband, so that by law (at least before a judge) nothing can be demanded from him on account of bad and prodigal administration.

But in conscience the husband must be obligated to restitution, because the wife preserves ownership of goods strictly common, although the husband alone has administration. Wherefore the husband, by dissipating them, injures the strict right of the wife. Nevertheless on account of bad administration the husband is not to be obligated to restitution if community of goods is so determined by law that the wife has a strict right only in half the goods extant after the death of the husband.¹

2. A husband who badly administers or even dissipates goods of the family, of which he alone is owner, offends against charity or piety, but not against justice.

3. If a husband, against the will of the wife, dissipates anything from goods of which he has only administration or only usufruct with administration, he injures her strict right and is bound to restitution. The same must be said where, in administering goods strictly common, he exceeds the limits granted by law.

4. From common goods or goods of the family the husband is bound to supply to the wife those things which are necessary for procuring the family estate according to the state and condition of the family, for her sustenance, and for fulfilling her obligations (at least if she does not have proper goods).

¹ Cf. Lacroix, l. 3, pr. 1, n. 1020; Lehmkuhl, I, n. 897; Gury-Ballerini, n. 556; Dalama, n. 40.

378. Rights and obligations of the wife.¹ 1. If the wife takes something from goods of the family, of which the husband is owner, while the husband is reasonably unwilling, she injures his strict right and of herself is bound to restitution unless the injury is condoned.

2. Of herself the wife can licitly spend nothing without the husband's knowledge: for administration of goods, even common goods, belongs to the husband. Besides, the subjection by which the wife is subordinated to the man as head of the family demands that she take nothing without the husband's knowledge and without having consulted him. Yet since the wife is not a maidservant, but the husband's companion and helper, from universal custom that liberty in the use of goods which the decency of state requires is to be granted to her. Therefore several things, especially when a just cause exists, are licit to the wife even without the husband's knowledge, indeed even against his will.

From custom wives have free administration of poultry and their fruits, such as eggs.

a. The wife can spend certain goods, even rather notable ones, without the husband's knowledge for the good of the family if the husband would not give the things necessary for the honest sustenance of herself and the offspring, or if the necessities of the family would be set forth to him in vain. Yet in this case the wife ought to beware lest she make expenses excessive for the condition of the family.

b. She can give customary alms which are usually given by women of the same condition; greater ones indeed if the husband neglects this obligation; some, but lesser ones, even if the husband satisfies his obligation according to the condition of the family. For the wife would appear too hard against decency if she could give no alms.

c. She can assist parents or children received from another marriage if they are constituted in grave necessity.

If she has proper goods, she ought to assist needy blood relatives from them. Yet she can give customary alms to blood relatives even if she has proper goods. If she does not have proper goods and customary alms do not suffice, she can take from common goods or from the goods of the husband to relieve the grave necessity of parents and children. Nor is she bound, after the husband has died, to restore those expenses from that part of the dowry or common goods which she receives, unless those expenses greatly exceed the limits of customary alms. The reason of the first is that the husband, as administrator of the family, ought to furnish to the wife those things by which she can satisfy her obligations; but the laws of piety demand from the wife that she assist parents and needy children. The reason of the second is that the man is not bound to suffer extraordinary expenses from his own goods if the wife has goods whose ownership is with her.

d. She can reserve certain goods without the husband's knowledge so that she may provide for the necessities of the family and of the husband himself and so that she may preserve her rights intact, if the husband dissipates the goods.

e. She can take care that prayers and Masses be said for averting spiritual or temporal damage of the husband or of the family.

f. She can bestow small gifts and spend certain things on honest recreation, according as these things are licit for other women of the same condition and therefore cannot be omitted without some mark of reproach.

Note. The rights of wives in common goods which belong to them from use and custom are not to be proposed publicly in instructions, and ordinarily neither privately in the confessional should too much indulgence be given to women, since they themselves, from an implanted desire of ruling, are very prone to extending their rights more than is equitable. Universally, greater care must be taken that the wife be subject and obedient to the husband in charity, as is fitting, than that she insist upon her rights.

¹ Lugo, disp. 16, n. 64 ss.; Lehmkuhl, I, n. 895.

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.

The goods of spouses are distinguished into common and proper, according as they belong to both or to either one. It depends on the law what kind the goods of spouses are: whether common, or proper, or partly common and partly proper. In many kingdoms legal community is in force; in other words, the goods of spouses are common unless before marriage something else is agreed. Now:

I. As regards common goods, ownership of them belongs to both; the right of administration is in the husband's hands; the right of the fruits falls to both. It is said:

1. Ownership of them belongs to both; this is the same as asserting co-ownership, as it is called.

A twofold co-ownership of spouses can be distinguished: one by which spouses are not distinct subjects of right but one owner; according to many, though undeservedly as it seems, co-ownership of this kind is constituted by Dutch law. The other co-ownership is that by which the spouses are two distinct subjects of rights. And this co-ownership is again twofold, Roman and Germanic. Moreover, the chief difference between them consists in this, that the Romans divided common goods mentally, and then considered the undivided part of the thing as a separated whole, which any co-owner could alienate or burden. But the Germans did not divide common goods mentally, but continued to consider them as one whole, and therefore left to all co-owners the right of disposing of the common goods.

2. The right of administration is in the husband's hands; the right of the fruits falls to both.

Corollary I. Spouses who seize common goods for themselves alone or squander them sin against commutative justice if, with the law considered, the co-ownership is Roman or Germanic. The reason is that they violate the strict right of the other spouse. The contrary is to be said with sufficient probability if the co-ownership is of the former kind explained above, because deservedly it is doubted whether the alterity required for commutative justice is present if one person, although one is not the same as two, with another becomes one subject of rights or one owner. In a word: the matter depends on whether the two are to be regarded as a moral person or not; if the former, the required alterity is certainly had. For the rest, not only the husband, but also the wife, can subtract those things which otherwise will be squandered by the husband. This is clear if Roman or Germanic co-ownership is had, because squandering is opposed to strict justice, as we have said; and the wife can certainly forestall that injustice. If co-ownership is of the former kind explained above, the squandering to be feared is a sufficient reason for withdrawing common goods from the husband's disposition and acquiring for herself the administration of those goods (St. Alphonsus, III, 541).

Corollary II. If the husband refuses necessities or grants them with great difficulty, the wife can, even if Roman or Germanic co-ownership is had, from the common goods:

1. Give out what is necessary for suitable support of herself and the offspring, for decent adornment and suitable recreation, for alms to be given according to condition; likewise for guarding herself in the future and procuring a suitable state for the offspring, or for averting grave spiritual or temporal damage from the family. The reason is that the intimate conjunction between wife and husband, between children and parents, brings it about that common goods, if the proper good or the good of the offspring demands it, can be treated as proper goods (St. Alphonsus, III, 540, 541).

2. Spend those things by which she may consult the necessary support of her parents or of offspring received from another marriage; for what is lawful for her in order to her own advantage also seems lawful in order to the good of those who are in some way one with her; all the more because in the case the husband is also bound from piety to consult the parents and offspring of his wife (St. Alphonsus, III, 542).

II. As regards proper goods, each spouse has direct and useful ownership of them, that is, of proper goods; but to whom administration belongs is to be drawn from the law.

Corollary I. Those about to marry sin against justice, and in themselves are bound to restitution, by deceiving the other party, for example by exaggerating goods, lessening debts, and thus bringing it about that a nuptial agreement is omitted by which community of goods would be excluded wholly or in part.

Corollary II. A wife can freely dispose of those things which she has gathered by extraordinary labor or parsimony, or has saved from what was granted for food or pleasure (St. Alphonsus, III, 541).

Corollary III. If the husband refuses, or grants with great difficulty, the things which are necessary for suitable support of the wife or offspring, for decent adornment and suitable recreation, for alms to be given according to condition, for guarding the wife in the future and procuring a suitable state for the offspring, or for averting grave damage from the family, if, I say, the husband refuses these things or grants them with great difficulty, the wife, in defect of proper and common goods, can also use the husband's proper goods, because the intimate conjunction between wife and husband, between children and parents, brings it about that the proper goods of one are in some way also those of the other, so that things owed to the other spouse or to the children, if they are denied, can be seized (St. Alphonsus, III, 540-541).

In general, however, the confessor should not easily indulge the complaints of wives, lest the reins be loosened too much.

105. The goods of the wife are some dotal, the fruits of which the man enjoys for sustaining the burdens of marriage; others are paraphernal, namely besides the dowry, which the wife has besides the dowry, and which she specially reserves to herself; others common, which by the agreements of the spouses or the determination of law are brought into a certain society. - Before entering marriage spouses can determine under what conditions their goods are to be subject, with certain statutes of law observed. If they have omitted to do these things, the law will supply.

106. Of dotal goods, generally and speaking per se, direct ownership remains in the power of the wife. But the husband has their administration and usufruct. Dotal goods, during marriage, cannot be alienated, nevertheless speaking regularly or ordinarily; for they can be alienated from a grave cause of necessity or utility of the family, and with the consent of each spouse. If the dowry during marriage is increased or perishes, it is increased or perishes for the wife; when marriage has been dissolved, it is to be restored.

Extra-dotal goods are the wife's by full right. Common goods belong by equal right to each; nevertheless the husband has their administration, and receives their fruits for the necessities of the family. - Finally the wife has no ownership of the goods of the husband.

113. Paraphernal or extra-dotal goods are those which outside the dowry the wife reserves to herself. C. H. 1381. - These are by full right the wife's, and thus she administers them and enjoys their usufruct, C. I. 1427; C. G. 1576; C. H. 1382. Yet she cannot alienate immovables, nor appear in court for them, without the express consent of the husband, or, if the husband resists, without the sentence of the tribunal. C. I. 134, 136; C. G. 215, 217, 1576, 1538; C. H. 1387; cf. C. A. 91. The same must be said from C. G. 1536, if the wife is wholly separate in goods. - But if the husband administers these goods by express or tacit mandate of the wife and receives the fruits, he must restore only the fruits which then exist, when the woman asks, or dies; but he must restore all the fruits which he received if a condition was added to the mandate that he render accounts of the fruits, or if the woman at least by an extrajudicial act opposed him. C. I. 1427 seqq.; C. G. 1576 seqq. But from C. H. 1384, 1389 seqq., if paraphernal goods are handed over by the wife to the husband to be administered, they are then equated with dotal goods, whose ownership remains in the power of the wife. From C. A. 1238, 1239, unless the wife opposes, by a presumption of law the administration of the free patrimony of the wife is deemed entrusted to the husband as legitimate procurator. But he is responsible only for the substance of the thing, or for the capital; but he is not bound to give an account of fruits received, unless this has been expressly agreed upon. - To paraphernal goods belong, and are the wife's, those goods which, during marriage, she acquires from her own goods, or from her singular industry, or from her extraordinary labor, especially if she exercises trade in her own name, or also something by subtracting from those things granted to her for food, clothing, recreation, etc.; then also those things which have been given to her with the express condition that they not yield to the husband. C. A. 1237. - L. l. 3, n. 541.

548. • The goods of a wife are of three kinds, namely:

1. Dotal goods, whose fruits the husband enjoys for sustaining the burdens of marriage.

2. Paraphernal goods (παρὰ φερνὴν, besides the dowry), which the wife has besides the dowry, and which she specially reserves to herself.

3. Common goods, which by the pacts of the spouses or by determination of law are brought into a certain partnership.

Spouses can, before entering marriage, determine the conditions to which their goods are to be subjected, with certain statutes of law being preserved; if they have omitted to do these things, the law will supply.

549. • I. The wife has direct dominion of her dowry, but the husband has usufruct and administration. When the husband has died, she is preferred to all the personal creditors of the husband, and even during life she can juridically reclaim the dowry if she fears that the husband will become unable to restore it. If the dowry consists in money or in other things consumptible by use, full dominion of the dowry is indeed attributed to the husband, but with the obligation of restoring the value, dominion having been transferred for the wife into all the goods of the husband according to the rate or quota of her dowry ¹. - St. Lig., n. 489.

¹ This is valid if the dowry consists in things which are counted by weight, number, or measure, or certainly in appraised things handed over; for then the husband becomes by full right the owner of those things. But if non-appraised species are given as dowry, then the wife alone is mistress of the dowry; but to the husband only two things pertain from the right of dominion, namely vindication of the thing given, and the right of using and enjoying.

II. The wife holds full dominion and administration of paraphernal goods, so that concerning these the husband is able to dispose of nothing against her will. Hence as to these she depends in no way on her husband. - St. Lig., ibid.

III. The property and utility of common goods belong to each spouse; but the administration of the same belongs to the husband alone. But this community of goods can admit various conditions or restrictions, and therefore attention must be paid to the various dispositions of places. - Elbel, n. 69.

Pacts which can be entered into by spouses before marriage constitute three classes, or a threefold regime, namely: 1. the dotal regime; 2. the regime of community; 3. the regime excluding community.

550. • I. Dotal regime. Dotal goods are those which constitute the wife's dowry: the husband has full administration of these and receives the usufruct. But the wife preserves direct dominion alone (art. 1549).

If the dotal goods consist in movable goods, either partly or totally, the husband has perfect dominion of them, and is bound only concerning their value consigned in the contract preceding the marriage (art. 1554).

Dotal goods can in no way be alienated, even with the wife consenting, except certain particular cases excepted by law (art. 1551 and following).

But all goods whatever of the wife, not constituted in the dowry, remain altogether her own, or are held as paraphernal; and the woman also has the administration of them and receives the usufruct (1574, 1576). Yet she cannot alienate immovable goods, nor appear in court for them, without the express consent of the husband, or, if the husband resists, without a sentence of the tribunal of first instance (art. 1576); the same must be said if the wife is entirely separate in goods (art. 1536).

To paraphernal goods also belong those which the wife procures for herself by singular industry or extraordinary labor, with sufficient care of the family estate having been applied, or those which she accumulates by subtracting something from what is granted to her for food, clothing, recreations, etc.; and also those things which have been given to her with the express condition that they not yield to the husband.

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.

159. Whatever the civil law may be, certain principles must be established, by which it can be discerned when spouses inflict injury on one another.

1. Generally the civil law determining the various rights and duties of spouses in this matter must be observed in conscience, because there is question of a law determinative of property, and also of a contract freely entered between the parties. - Nevertheless, since rights and obligations proceed with equal step, if one of the spouses does not fulfill his or her obligations, he or she cannot vindicate for himself or herself the rights corresponding to them. - Moreover if deceit and fraud intervened in the contract itself, the injured party is not morally bound to fulfill those obligations which were unjustly imposed upon him or her.

160. These things being posited, the wife (A) has a right to honorable support according to her condition, even if she has brought no goods, nor any pact was explicitly entered: for natural right demands this.

This honorable support embraces not only food and clothing, but also honorable recreations, according to her condition; and the faculty of bestowing moderate alms, since the wife remains bound by the law of charity.

161. (B) If the woman is bound to succor her own parents, or children received from a preceding marriage, she ought to furnish this from her own goods, if she has any; - but if these are lacking, she can relieve their grave necessity from common goods or from the goods of the husband; and indeed without the consent of the husband, if the donations can be regarded as alms; but if they are more ample, with the consent of the husband, since he is administrator of the common goods and owner of his own. - Certain persons probably say the same concerning brothers and sisters who are in grave necessity.

162. (C) Since the wife is not a servant, but an associate, she is not bound explicitly to ask from the husband those things which are necessary for her own support, but can vindicate them for herself, - indeed secretly subtract them, if the husband is irrationally unwilling.

Likewise, if the husband is prodigal, the wife can hide certain goods and preserve them for future necessities. - Likewise, if he culpably neglects to furnish necessities to a son studying or laboring outside the house, she can supply these from common goods or from goods proper to the husband. - Yet in these matters care must be taken that she not indulge too much either herself or her children, since not rarely wives are prone to extending their rights beyond what is equitable.

163. 2. When full separation of goods flourishes, each spouse sins against justice if, while the other is reasonably unwilling, he or she diverts part from the other's revenues. Yet a greater quantity is required for constituting grave sin for spouses than for strangers, because they are judged less unwilling.

164. 3. The husband sins against justice:

(A) By dissipating the goods proper to the wife: (a) either by alienating them against the wife's will or against civil laws; or by extorting the wife's consent by moral violence or fraud: for he is not the owner of these goods, but only the administrator; - (b) by managing them badly and negligently; for he ought to administer the wife's thing as a good father of a family; otherwise he inflicts harm, and as a damager is bound to restitution.

165. (B) By alienating common goods in a manner prohibited by civil law, e.g., by giving immovable goods, or by hiding a donation under the appearance of a sale; for one half part of these goods belongs to the wife, and the husband cannot dispose of this part except by concession of law; therefore he usurps the rights of the wife by alienating common goods against the prescriptions of the law. - But if the husband has dissipated these goods within the limits of the law, by selling or exchanging them, more probably indeed he sins against justice, because he violates the wife's right of co-ownership in those goods;¹ but, according to some,² in this case charity indeed is violated, but not justice. - In practice, the former opinion is to be advised before the fact; after the fact, that which has been done according to the latter can be tolerated. - But to prevent the dissipation of goods, the wife can request separation.

¹ Marres, I, n. 69.

² Carriere, n. 276.

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.

15. General Principles. A man and a woman contracting marriage enter into an undivided companionship of life, of which the man is the head. Nevertheless each one in the matrimonial society retains natural rights, as is clear of itself. Therefore each one remains capable of dominion. Both spouses must strive strongly for the suitable support of offspring; one must also suitably support the other. From these things it follows (however civil laws have been established and although the wife has contributed nothing to the material good of the family), nevertheless she has a strict right to suitable support according to her condition, or just as other women of the same condition.

16. The honorable support of a spouse comprises: a) suitable food and clothing (and probably also after the death of the other spouse).⁷ For the wife is not a maidservant but the companion of the husband. b) The faculty of spending certain things for honorable recreation, of giving small gifts, of giving alms, just as other spouses of the same condition are accustomed to do. Hence the wife does not sin against justice if she does all these things without consulting the husband or against his will. Nevertheless, in practice it is not expedient that a wife, against the husband's will, dispose thus of common goods (the matter stands otherwise if the wife disposes of her own peculiar goods), unless true necessity, at least moral, demands it; because otherwise great abuses and very many quarrels can easily arise between spouses. This indeed is especially valid if it is a matter of alms and gifts; for it is better to abstain from these than to procure discord. There is a greater difficulty if the wife is held to help her parents or sons perhaps had from a prior marriage. In which case, if the parents or those sons are in grave necessity, the wife is held to help them from her own goods, if she has any; but if she has no goods of her own, she can help them from common goods, but she must not notably exceed the quantity concerning which she can dispose as alms. Certain theologians⁸ permit the same toward brothers and sisters if they are very poor. In practice wives are to be exhorted first to make the husband more certain about extraordinary alms to be given; but if this cannot be done, then wives are to be induced to acquire for themselves, by special industry or extraordinary labor, certain goods from which they can licitly give those alms; or also, from those things which are granted to them by the husband for clothing, amusements, etc., to save money for giving these alms.

If the husband is too prodigal and dissipates the goods of the family, then the wife can laudably hide certain goods, lest they be dissipated. Generally speaking, since the wife is not the servant but the companion of the man, she can prudently dispose of small goods of the family, because the husband cannot reasonably be unwilling concerning such a manner of acting.

The administration of common goods pertains to the husband, since he is the head of the family; but if the husband by gravely bad administration, dissipation, gambling, drinking, etc., has brought grave damage upon the wife, he is held to restitution. Nevertheless, in practice it must be seen what system of goods has been established in the matrimonial contract; whence also in the forum of conscience those things must be attended to which will be said below concerning the diverse statutes of civil laws.

As to practice, let the confessor strongly insist that both spouses administer material goods with united strength and minds. Although sometimes the wife does not commit injustice strictly so called if she disposes of common goods, and therefore is not held to restitution, nevertheless such clandestine dispositions are accustomed to produce many inconveniences, as was already said. Since these things are so, in this matter not only the virtue of justice must be observed, but also the virtue of prudence and charity.

These are the things which are valid in general concerning the dominion of spouses. Older moralists in this matter attended only to Roman civil law. But since in our times Roman law has almost everywhere been removed by other civil laws, we touch only briefly upon the statutes of Roman law and insist more on modern laws.

⁷ Cf. Lehmkuhl, Theol. mor. I, n. 1068.

⁸ Lessius, Lugo, St. Alphonsus (Theol. mor. l. 3, n. 542), Aertnys, etc.

17. Roman law distinguished the wife's goods of three kinds, for example: 1. paraphernal, 2. dotal, 3. common.

1. Paraphernal goods (so called from the Greek words παρά, that is, besides, and φερνή, that is, dowry) are goods handed over to the husband besides the dowry,⁹ and which the wife is accustomed to receive from gifts, inheritance, her own industry, etc. But in order that those goods be regarded as paraphernal, the wife must reserve them for herself explicitly or implicitly; otherwise they are considered dotal, since by marrying the wife is thought to give herself and all her things to the husband.

2. Dotal goods are those which the woman hands over to the husband for the relief of the burdens of matrimony and for the support of the family.

3. But common goods are those which are acquired by the labor of each spouse during matrimony.

With these distinctions established, the following principles are valid:

1. The wife has perfect dominion (that is, direct and useful) and also administration of paraphernal goods.¹⁰

2. The wife indeed has direct dominion of dotal goods, but neither their administration nor useful dominion, both of which pertain to the husband.¹¹

3. The wife has direct dominion of one half of the common goods, so that when the husband dies this half of the goods falls to the wife; but useful dominion and the administration of all common goods pertain to the husband.

⁹ In the German and Swiss civil Code paraphernal goods are called Vorbehaltsgut, Sondergut.

¹⁰ Cod. lib. 5, tit. 14, l. 8.

¹¹ Dig. lib. 23, tit. 4, l. 7.

Preliminary Note. The civil codes of diverse nations, in almost the same way as Roman law, distinguish between dotal, paraphernal, and common goods, and also, just as Roman law, attribute to the husband the administration and use of all goods, excepting only paraphernal goods, although sometimes they limit the husband's faculty somewhat. Therefore this must be kept before the eyes as a general rule: The husband has the use and administration of all the goods of the wife. Paraphernal goods are excepted.

Very briefly there are added the civil statutes of certain nations, which the confessor must know and according to which he can judge occurring cases. But if greater difficulties occur, let the confessor not omit to seek counsel from one skilled in law.

18. 1. German law obliges, in the whole German Empire from the day 1 Jan. 1900, all citizens of that kingdom contracting marriage within the borders of Germany. If a German man contracts marriage outside Germany, he is still bound by German law; but not if a woman does this same thing.

2. A twofold regime of goods in marriage is distinguished, namely: a) legal regime (gesetzliches Güterrecht) and b) conventional regime (vertragsmäßiges Güterrecht), which nevertheless is subdivided into four species.

A. Legal Regime.

1. This regime is presumed unless it is certainly established concerning a conventional regime.

2. In this regime there are distinguished: the wife's brought-in goods (eingebrachtes Gut) and reserved goods (Vorbehaltsgut).

Reserved goods are considered to be:¹²

a) Things destined for the wife's use alone, for example garments, feminine ornament, etc.

b) Things acquired by the wife in an altogether independent business, for example by exercising the office of midwife.

c) Things received by inheritance or by donation between the living, provided nevertheless that the testator or donor expressly established that things of this kind constitute the wife's reserved goods.

d) Fruits of reserved goods.

All other goods are brought-in goods, if the legal regime is in force.

3. Over reserved goods the wife has completely free disposition; nevertheless from their proceeds, if this is necessary, she must contribute to the family estate.¹³

4. Over brought-in goods the husband indeed has usufruct and administration,¹⁴ but he cannot alienate them (at least if they are immovable) without the wife's consent; he must administer them diligently, otherwise he is held to restitution; their fruits he must spend first of all upon the suitable support of the family.

5. The wife can petition in court that the administration and usufruct of her goods be taken away from the husband, if a true danger of bad administration is present, or if the husband does not provide suitable support to the wife and children.¹⁵

B. Conventional Regime.

Those about to marry can enter into a pact concerning their own goods before a judge or notary; and this pact, after marriage has been entered, can again be dissolved or changed by them before a judge or notary.

Moreover, a pact of this kind is fourfold, namely: a) universal community of goods (Allgemeine Gütergemeinschaft); b) community of gain (Errungenschaftsgemeinschaft); c) community of movable goods (Fahrnisgemeinschaft); d) separation of goods (Gütertrennung).

a) Universal community of goods.

1. This universal community of goods causes that from the goods of the man and woman there coalesces one common good (Gesamtgut),¹⁶ whose administration pertains to the husband, who nevertheless in several cases needs the wife's consent.

2. It is also licit to exclude certain goods from this union (Vorbehaltsgut), according as it may please the contracting parties themselves.

3. This universal union of goods seems rarely to be advised from the beginning of marriage. But it could be fitting for avoiding inconveniences on account of an inheritance to be taken.

b) Community of gain.

1. In this regime, which is as it were a composition of the legal regime and the universal community of goods, there are the wife's reserved goods, as in the legal regime. Moreover, still other goods can be designated as reserved. But the husband does not have reserved goods.¹⁷

2. Reserved goods excepted, the administration and usufruct of the remaining goods pertain to the husband.

3. The brought-in goods of each spouse remain under his or her direct dominion, but the fruits of those goods become a common good.¹⁸

4. If this union of fruits is legitimately dissolved, then the obtained fruits are divided equally between the man and the woman.¹⁹

5. A union of fruits of this kind can especially have place in second marriages of either spouse, namely lest the offspring of the first or second marriage suffer damage.

c) Community of movable goods.

1. In this regime there exists a broader union of goods than in the union of gain. For to the union of all gain perceived from the brought-in goods there is added the union of all movable goods.

2. The wife, but not the husband, can have reserved goods.²⁰

3. From this union of goods there are excluded (as is clear of itself) immovable goods, which must be treated just like brought-in goods.

But what goods are considered immovable was said in n. 12.

d) Separation of goods.

1. If by pact before or after the nuptials separation of goods has been stipulated, then the husband has no right to the use and administration of the wife's goods. Nevertheless, the wife can according to her own judgment concede to him the administration or use of those goods.²¹

2. The husband is indeed held to bear the burdens of matrimony, but the wife also must contribute something from her own fortune.²²

3. The pact of separation of goods must be made according to legal form, otherwise it produces no effect.²³

4. A pact of this kind seems advised if the goods of either spouse are in great danger, for example on account of commerce.

¹² Cod. civ. Germ. §§ 1366-1370.

¹³ § 1371.

¹⁴ §§ 1373-1374.

¹⁵ § 1418.

¹⁶ § 1438.

¹⁷ § 1526.

¹⁸ § 1519.

¹⁹ § 1546.

²⁰ § 1555.

²¹ § 1430.

²² § 1427.

²³ § 1431.

19. General Rules:

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

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

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

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

A. Regime Of Legal Community.

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

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

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

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

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

B. Conventional Regime.

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

a) Conventional community.

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

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

b) Regime without community.

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

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

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

c) Regime of separation of goods.

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

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

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

d) Dotal regime.

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

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

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

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

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

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

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

²⁵ Art. 1400, concerning which below.

²⁶ Art. 1395 and 1443.

²⁷ Art. 217, 219, 1449, 1538.

²⁸ Art. 215, 216.

²⁹ Art. 1400.

³⁰ Art. 1401-1408.

³¹ Art. 226.

³² Art. 1441.

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

³⁴ Art. 1530-1535.

³⁵ Art. 1537.

³⁶ Art. 1448.

³⁷ Art. 1541.

³⁸ Art. 1554, 1557-1559.

³⁹ Art. 1543.

⁴⁰ Art. 1576.

⁴¹ Art. 1098 sqq.

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.

22. 1. Austrian law presumes separation of goods, unless the contrary has been established by an authentic pact. "If spouses have made no special agreement concerning the use of their property, then each spouse retains his or her previous right of ownership, and upon that which each party acquires during the marriage and in whatever way obtains, the other has no claim. In doubt it is presumed that the acquisition comes from the man."⁴⁴

2. Unless the wife has contradicted, it is presumed that the husband has administration and usufruct of all the wife's goods.⁴⁵ The husband is held to preserve the very substance of these goods; otherwise he is obliged to restitution. But he can dispose freely of the fruits.

3. The husband can before the nuptials demand a dowry, but he can also yield his right. The husband, during conjugal life, has usufruct of the dowry and its increase, but he is obliged to return the substance or an equivalent value of the dowry in case of death or divorce or cession of goods. Indeed those who hand over the dowry can from the beginning demand assurance of it.⁴⁶

4. The wife has a strict right to suitable support from the husband's goods according to the condition of his state.⁴⁷ Those things which the wife receives from her husband, for example ornaments, jewels, etc., pass into the wife's full dominion, unless the contrary has been expressly stipulated.⁴⁸

5. From Austrian law no difficulties can arise for the practice of the confessor. Liberty between spouses is very great. If a nuptial pact has been entered, its clauses must be observed, just as those of any legitimate contract.

⁴⁴ Cod. civ. Austr. § 1237.

⁴⁵ § 1238.

⁴⁶ § 1245.

⁴⁷ § 91.

⁴⁸ § 1247.

23. 1. In many things Italian law agrees with French law set forth above, and especially in the clause of the immutation of a contract entered after marriage. ("Matrimonial conventions of whatever species cannot be changed in any way after the celebration of marriage.")⁴⁹

2. The determination of the dowry can be made from the wife's present or future goods, but once the dowry has been determined it cannot be increased during marriage.⁵⁰

3. The husband indeed has administration and usufruct of the dowry, but not direct dominion over it, just as it has been established in French and Roman law.

4. For making changes concerning the dowry, alienation of goods, and the nuptial pact itself, the authority of the judge is required.⁵¹

5. In case of the dissolution of marriage, whether by the death of either spouse or by divorce, restitution of the dowry must be made according to the norms of art. 1409-1418. But the sentence of a judge is always required ("every extrajudicial separation is null").⁵²

6. The wife indeed retains full dominion and administration of paraphernal goods,⁵³ but she cannot alienate her own immovable goods without the authority of the husband.⁵⁴

7. Italian law does not admit another union of goods except the union of fruits (communione degli utili);⁵⁵ it is almost the same as Errungenschaftsgemeinschaft in German law and communauté des acquêts in French law.

8. For the confessor according to Italian law, difficulties can more easily arise on the part of the husband, whose rights are rather limited, than on the part of the wife, whose rights are broader.

⁴⁹ Cod. civ. Ital. a. 1385.

⁵⁰ Art. 1389 and 1391.

⁵¹ Art. 1405.

⁵² Art. 1418.

⁵³ Art. 1427.

⁵⁴ Art. 134.

⁵⁵ Art. 1433.

24. 1. In Spain Roman law still is in force, with a few modifications applied. Thus, for example, in Roman law dotal goods are greatly distinguished from paraphernal goods; but in Spanish law dotal and paraphernal goods are indeed distinguished verbally, but in fact there is a small difference between them. Hence Larraga-Saralegui⁵⁶ says: "According to our Code, paraphernal goods are scarcely distinguished from dotal goods."

2. Unless there is a special antenuptial pact, the community of gain (sociedad legal de gananciales)⁵⁷ is supposed by the Spanish code, and all goods pertain to this union unless the contrary has been expressly proved.

3. From these common goods there must be paid not only all debts contracted by both the husband and the wife during marriage, but also expenses for the education of common children and even legitimate children of either spouse. This last rule seems to be altogether particular to Spanish law, just as also the other rule, namely that from these common goods fines perhaps imposed upon either spouse are not paid.

4. For the confessor, difficulties do not seem able easily to arise from these norms of Spanish law.

⁵⁶ Comentarios al P. Larraga n. 697.

⁵⁷ Cod. civ. Hisp. a. 1315; Errungenschaftsgemeinschaft, communauté des acquêts.

25. General Rules.

1. 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

2. 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

3. 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.

4. 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

5. 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.

1. 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

2. 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

3. The wife is held from reserved goods to pay debts which she contracted without the husband's consent.⁷¹

4. 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.

1. 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

2. The administrator of the united goods is the husband, and sometimes the wife, but only as taking the husband's place.⁷⁵

3. The wife is held from reserved goods (if she still has any) to pay debts which she contracted without the husband's consent.⁷⁶

4. In case of collapse of fortune, the same things are valid which were said above in the prior system, n. 4.⁷⁷

5. 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

6. 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.

1. 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.

2. 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

3. 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.

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).

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.

I say. Every man, and only man, is capable of dominion. The reason is that, according to St. Thomas, the foundation of dominion is rational nature. And indeed, every man, and only man, can know the utility of things, will to apply them to himself if they belong to no one, and dispose of them thus applied to himself for his own end and his own advantage. Besides, he alone is capable of right or dominion who is capable of injury; but he alone suffers injury who suffers it against his will: however, he must be unwilling not indeed through the will by which he wills his own thing, but through the will by which he wills to retain the right to the thing itself, or to oblige others not to take it away. But brute animals cannot have such a will, since they can know neither moral obligation nor turpitude. Therefore.

Hence neither little children nor the insane themselves are incapable of dominion, as is clear from the practice of all peoples and from the reason just given; for, as was said, dominion is founded in the rational nature of men and its powers, but not in the actual exercise of those powers. Cf. St. Thomas, 2-2, q. 66, art. 1. - Lugo, disp. 3, n. 1.

Children of the family here are properly called those who, born from legitimate marriage or legitimated, of whatever sex they may be, are still subject to paternal power. - I said 1st. born from legitimate marriage or legitimated, because concerning the dominion of those who are spurious, judgment must be made only according to the equity of the right of nature, but not according to the special dispositions of the law. - I said 2nd. still subject to paternal power, because since only children not yet emancipated are reputed by law as infants, limitations are given only concerning their dominion, and therefore the question can be raised concerning them alone.

But emancipation can take place either by general law or by privilege and special declaration, and at a diverse age of children of the family, according to the diversity of regions. - Among us, with two or three States excepted, emancipation takes place in the twenty-first year both for males and for females. Cf. Wells, Every Man His Own Lawyer, p. 240.

You Will Ask. What can be the diverse goods of children of the family, and what dominion can they exercise?

Response 1st. From Roman Law the goods of children are: 1st. castrensia, that is, acquired on occasion of military service; 2nd. quasi-castrensia, or acquired from some public office, e.g., of judge, physician, etc.; 3rd. adventitia, which come from inheritance or donation, yet not made by the father or with a view to the father; 4th. profectitia, which the son gains from paternal goods, e.g., by carrying on business with the father's money, or which are given to him with a view to the father. - Moreover, of castrensia or quasi-castrensia goods the son has both dominion of property and usufruct; he also has administration if he has attained puberty. But the property of adventitia belongs to the son, but usufruct and administration to the father; finally profectitia in all respects belong to the father. Cf. St. Alphonsus, n. 488.

Response 2nd. Since, as Kenrick says, "these distinctions are not in force in the law which we use," the proposed question must be answered by distinguishing between the case in which the child of the family receives goods by title of donation or inheritance, and the case in which he acquires them by virtue of labor or industry. - In the first case, administration belongs to the father, but dominion of property and usufruct to the son. In the other, there is need of a new distinction; for either 1st. the son labors outside the paternal house and is not fed by the father, and then he will be able to make the goods which he gains his own, because he has been dismissed or is reputed dismissed; or 2nd. the son labors in the paternal house or outside it and is fed by the father, and then all things which he gains belong to the father.

But in that last case a threefold exception must be made in favor of the son, namely: 1st. if the father remits from his right, and he is considered to remit if he permits the son to contract marriage; 2nd. if the son by reason of his condition is not held to labor; 3rd. if he has evidently and undoubtedly labored more than the others of the family. - Although this last opinion can sometimes be held in practice, at least after the fact, nevertheless it is not to be taught publicly everywhere on account of the inconveniences which would follow through abuse. - Cf. St. Alphonsus, nn. 488 and 544. - Lessius, lib. 2, cap. 12, n. 81. - Kenrick, tract. 10, part. 1, n. 41. - Kent, Comment., vol. 2, nn. 191 and seq.

See Bouvier, Law Dictionary, 8th Edit., Parent and Child. Cf. Right to earnings of the child.

From Roman Law the goods of a wife are of three kinds, namely:

1st. Dotal goods, or goods which the wife already possessed, or which her father conceded to her for contracting marriage: the administration and usufruct of these are in the possession of the husband, but direct dominion is in the possession of the wife.

2nd. Paraphernal goods, or goods which the wife reserved to herself besides the dowry: these belong to her by full right.

3rd. Common goods, or goods which, by agreement had between the spouses or by determination of law, are brought into a certain partnership: of these, both direct and useful dominion belong to both spouses. - Cf. St. Alphonsus, n. 489. - Elbel, n. 69.

But in this region the three aforesaid names are taken otherwise, and the dominion of wives is different in it. For:

1st. "The dotal goods of a wife, according to our customs," says Kenrick, "are the third part of the immovable goods which the husband has possessed during marriage, which therefore he cannot alienate to the prejudice of the wife, unless she herself, questioned separately by a magistrate, has freely consented, and by her signature has renounced her right. If the husband by testament has left certain goods to the wife, that her dowry be excluded, it is in her power to reject them so that she may enjoy her right. Moreover, only during her life does her right remain, and when she has died, it passes to the heirs of the husband." Cf. Kenrick, n. 45. - Bouvier, Law Dictionary, under the word Dower.

2nd. Paraphernal goods among us mean all goods which pertain to the clothing or ornament of a woman, according to her condition, and which she used during marriage: these after the death of the husband belong altogether to the wife. - Cf. Kenrick, n. 42. - Bouvier, Law Dictionary, under the word Paraphernalia. - Wells, Every Man, etc., p. 82.

3rd. Common goods are those which are acquired by husband and wife together by title of purchase or of donation had during marriage. Each spouse possesses these goods as if the two spouses were one person, so that neither can sell them without the consent of the other. Cf. Kenrick, n. 44. - Kent, Comment., vol. 4, part 6, lect. 55. - Bouvier, Law Dictionary, §§ Dower, Husband and Wife.

Question 1. Can a wife give alms from common goods?

Response. Affirmatively, even if otherwise she has her own goods, provided that it is done according to the custom of other women of the same condition. The reason is that a wife is not a servant but a partner; therefore she must have a certain administration in the house of the husband. Besides, the husband is deservedly presumed to consent to those things which are done by the wife according to the respectable custom of condition and region; and if he shows himself unwilling, such dissent is considered irrational, because the husband cannot deprive the wife of a right conceded to her by legitimate custom. - Cf. St. Alphonsus, n. 540. - Kenrick, n. 46.

Question 2. Does a wife sin by giving something from common goods for relieving the necessity of parents or children whom she has had from a prior marriage?

Response. Negatively, if she does not have her own goods, and through this necessary things are not lacking to the husband and his family. The reason is that by the right of nature the wife is held to relieve the aforesaid blood relatives, and therefore the husband is reasonably presumed to consent to this. Cf. St. Alphonsus, n. 542. - Kenrick, n. 46.

Question 3. Is the wife held to restore goods given in this manner when, the husband having died, she comes into the inheritance of dotal goods, or before his death she has acquired paraphernal goods?

Response. Negatively, if the goods given are of small moment, because then they are held as common alms, which, if they are made moderately, do not carry with themselves the burden of restitution. Indeed, the response must also be negative, at least probably, if the goods withdrawn are of greater moment; because all burdens which, while marriage stands, naturally befall one of the spouses are considered common to the other, and therefore the husband cannot be reasonably unwilling.

The goods of clerics are distinguished into four kinds, namely: 1st. Patrimonial goods, which come from paternal inheritance or from any other profane cause, for instance from donation, succession, etc.; 2nd. Quasi-patrimonial goods, which are also called quasi-ecclesiastical or casual, and these are those which are acquired on occasion and in view of functions, e.g., by celebrating Mass, preaching, etc.; 3rd. Ecclesiastical goods, which are received from benefices of the Church, e.g., from revenues of benefices, etc.; 4th. Parcimonial goods, which a cleric sets aside by living sparingly from the fruits of a benefice, and which he could consume by living honorably.

I say. Clerics have perfect dominion in patrimonial, quasi-patrimonial, and parcimonial goods, so that they can dispose of them at will. The reason is both that that dominion is nowhere found restricted, and that in this all theologians, even the stricter ones, agree.

Although a benefice-holder may have other non-beneficial goods, he can freely use and enjoy benefice fruits which are necessary for his honorable support; but he is held by the obligation of expending superfluous fruits for the poor or for pious causes, with the prescription of can. 239, § 1, n. 19 being saved (Can. 1473).

§ 1. Unless the contrary is proved, those things which are donated to rectors of churches, even of religious, are to be presumed to have been donated to the church.

§ 2. A donation made to the church cannot be repudiated by its rector or Superior without the license of the Ordinary.

§ 3. If a donation has been illegitimately repudiated, on account of the damages which have arisen thence an action is given for restitution in full or for indemnity.

§ 4. A donation made to a church and legitimately accepted by the same cannot be revoked on account of the ungrateful disposition of the Prelate or rector (Can. 1536).

Question 1. Are clerics badly expending the surplus of ecclesiastical goods held to restitution?

Response. Certain strict theologians, such as Collet and Antoine, respond affirmatively, because they say: clerics are only administrators and stewards of ecclesiastical goods. But the opinion denying is probable, because although it is established concerning the precept of giving these superfluous goods, nevertheless it is not established concerning the origin of this obligation, namely whether it proceeds from justice. This opinion is also called probable by St. Alphonsus in his reformed propositions, especially on account of the authority of St. Thomas. Observe moreover that for the gravity of fault in the violation of this ecclesiastical precept there is required a quantity much greater than in theft, namely, according to the truer opinion, about a twentieth part of the superfluous goods. - Cf. St. Thomas, 2-2, q. 185, art. 7. - St. Alphonsus, n. 491; and QQ. Reform., n. 10.

Question 2. Whether the annual pension which is given to our Missionaries from the renting of pews is to be assimilated to ecclesiastical goods?

Response. According to the Constitution Romanos Pontifices, this annual pension is to be held as ecclesiastical goods.

§ 1. Temporal goods, whether corporeal, both immovable and movable, or incorporeal, which belong either to the universal Church and to the Apostolic See or to another moral person in the Church, are ecclesiastical goods (Can. 1497).

I say. Any man from natural right has a right in the fruit of his own ingenuity or industry. For if a thing bears fruit for its owner, a fortiori this must be true concerning internal faculties, since nothing can be more proper to a man. Wherefore the inventor of some art has a strict right that his secret not be stolen and, against his will, divulged to the public; but if this is done, the one causing damage will be held to restitution according to the measure of the injury inflicted. - Cf. Wells, Every Man, etc.; qq. 243 and seq.

Question 1. Does he violate another's right who publishes in type a manuscript work without the consent of the author?

Response. Affirmatively; and the reason is that it is established among all that a manuscript work is not in the public domain, but lies under the dominion of the author. The same must be said of one who would publish in type the public lectures of some professor or the sermon of an orator; for to teach publicly or to preach is not to hand over one's work to another for publishing and selling. - Yet except the case if someone delivers again from the pulpit a sermon already heard as if composed by himself, both because through this he does not properly claim the thing of another for himself, and because he does not necessarily and of itself harm the prior orator. - Cf. Carrière, n. 61.

Question 2. Does he who has published a book in type have the right of preventing anyone from committing it to the press and selling it with damage to the author or to the bookseller to whom the author has transmitted his right?

Response. Affirmatively, by positive right prevailing in most places, just as in these States, provided nevertheless that the conditions or formalities required by law have been fulfilled. But if there is question of natural right, it is controverted, and to some the denying opinion seems probable, because the author has a right in his work as long as it remains his own, namely is not handed over to the community, and thus as it were becomes of common right. Wherefore according to these, if someone in this region committed to type a book published in Europe without the permission of the author, strictly speaking and looking only to the right of nature, he does not seem to be accused of the temporal pecuniary damage which the author would suffer thence. I said 1st. strictly speaking, because by such a manner of acting, if not a right properly so called, public uprightness and natural decency seem to be injured. - I said 2nd. looking only to the right of nature, because if the contrary has been provided through international stipulation, the violator certainly would be held to paying the fine and congruous compensation. I said 3rd. concerning temporal pecuniary damage, for if the same or almost the same book were published under another name, then the true author would be damaged in the goods of reputation, which can never be lawful, and a sin of this kind is designated by a special name among all nations. - Cf. Carrière, ibid. - Kenrick, tract. 10, part. 1, nn. 13 and 14. - Bouvier, Law Dictionary, Ed. 8th. Cf. Copyright, De lege lata among us (March 4, 1909).

I say, 1st. By Roman law a wife cannot contract or dispose concerning the 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 expressly or tacitly consents, or if he is not reasonably unwilling. But she can, at her pleasure, contract or dispose, even when the husband is unwilling, concerning paraphernal goods.

I say, 2nd. By our law she can contract concerning all those things which are required for her nourishment and decent sustenance, even if the husband contradicts, provided nevertheless that she does not live with an adulterer or has not departed of her own accord from the house of her husband. But in those States where wives are permitted to be engaged in separate commerce, they can contract in all those things which are directed to this commerce. - Cf. Kenrick, tract. 11, n. 4. - Kent, Comment. vol. 2, part 4, lect. 28, n. 154.

You Will Resolve. - 1st. 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 oblige the husband, is nevertheless held to repair the damage inflicted upon another.

2nd. The nullity of a wife's contract can be invoked by the husband in conscience, even if he has not suffered injury properly so called, because the nullity was sanctioned chiefly in his favor.