Economic aspects of family law

The property of married couples

The comparative legal history of marital property, viewed in broad perspective,
covers a period of about 4,000 years, during most of which a husband was generally
regarded as a quasi-guardian of his wife, who was dependent upon him economically
and legally. The English common law, for example, removed the separate legal
personality of a woman when she married and merged it in that of her husband,
though she regained it if she became a widow. Her husband acquired extensive rights
to the administration and ownership of her property, including full ownership of any
moneys she received from employment or business, with no obligation even to give
an accounting.

The emancipation of women, which occurred in many countries during the late 19th
and early 20th centuries, profoundly affected family law and marital property.
The Scandinavian countries made radical reforms in their marital property laws in
the 1920s, introducing a new type of matrimonial regime in which the spouses retain
independent control of their property except for some items for the disposal of which
the consent of the other spouse is required. This arrangement was influential in the
reforms of other countries.

In the 1970s, laws governing marital property came under increasing scrutiny in
England, Belgium, Israel, Canada, and other countries. In the United States, the right
of cohabitating but unmarried couples to property settlements and even
to monetary support from each other at the termination of their relationships was
established in a series of court cases. Property settlements also now typically take
into account the non-monetary contributions of the woman as homemaker and
mother, the emotional support she provides to her husband, as well as the
professional or educational sacrifices her role in the marriage may entail.
Maintenance and support
The law of maintenance and support has differed from that of marital property in
most countries. A widow, for example, normally receives some share in her
husband’s estate upon his death. Some systems of law require that dependents
receive a compulsory share in the estate or dependent’s relief or family provision
(that is, financial support out of the estate for a dependent in straitened
circumstances). Most systems of law have traditionally regarded financial support as
the responsibility of the husband and father, though this is no longer automatically
the case.

Social welfare legislation and the principle that a child’s welfare is paramount have
added a dimension and an inconsistency to the traditional principle of paternal
responsibility. The new dimension is a public one and implies that society has an
ultimate responsibility to see that children receive at least a minimum standard of
maintenance. In some countries—for example, the United States, Canada, and
various European countries—attempts have been made to combine parental and
public responsibility for the child’s welfare.
The enforcement of the legal obligation of a parent to maintain a child runs into a
number of difficulties in law and practice. The non-custodial parent may be too poor
to support his child, or he may be impossible to locate, or he may be in prison
(perhaps for his refusal to pay). The custodial parent may be reluctant to sue for child
support. Where there are social welfare programs supported by taxes, efforts may be
made to protect the tax revenues by, for example, requiring the custodial parent to
sue as a condition of receiving welfare payments. Sometimes the authorities institute
criminal or contempt proceedings against the delinquent parent. In the United
States, state laws passed in the 1980s aimed to crack down on so-called “deadbeat
dads” by providing for the garnishment of wages of parents who were delinquent in
their child-support payments. Other measures included the imposition of liens on
property and the withholding of unpaid support from federal and state income
tax refunds.
Separation of marital property
Reforms in marital property laws have tended to reflect the wishes of spouses and
their families, rather than traditional customs, religious attitudes,
and dogmatic formulas. The French civil code of 1804 began a European pattern of
giving spouses a choice of matrimonial regime: the codifiers were confronted with a
variety of customary laws in different parts of the country, and, not wishing to
impose one of them, they included alternatives in the code, designating one,
the Custom of Paris, as the legal regime that would apply if the parties did not select
another in a marriage contract. In common-law countries, the tendency has been to
favour separation of property—a tendency resulting more by accident than by
intention. This has come about because most of these countries adopted married
women’s property legislation that removed the incapacity of a married woman to
make contracts and deal with her property, thus destroying the existing system by
which the wife’s property passed into the control of the husband. No new
matrimonial system was constructed, so that the spouses were placed in the position
of separate individuals so far as property was concerned. They can, of course, draw
up marriage contracts or settlements to express their own wishes. Beginning in the
late 20th century, it became common for couples in the United States to use
contracts known as prenuptial agreements to protect their individual property or to
ensure themselves of support in case their marriages dissolved.

Community property
A marital property system should try to balance two sets of interests: the interests of
the spouses and the interests of third parties such as purchasers, creditors, and
business partners. Community-property regimes emphasize the first but are less
attractive in terms of the second, because the property is tied up in
the community and is subject to the interests of both spouses, whereas the third
party may be dealing with only one of them. Separation of property gives property
independence to each spouse, but it does not provide for sharing unless the spouses
place items of property under joint ownership. Consequently, there has been a trend
in many countries toward new regimes giving the husband and wife independence in
dealing with property but also providing rules for a division of net assets on
liquidation of the marriage.
Tort actions between spouses
In English common law, as amended by the property legislation of the 19th century, a
husband could not sue his wife in tort (that is, for a wrongful civil act not arising
from contract), and she could sue him only in respect of damage to her separate
property. This has been variously explained as stemming from the doctrine of the
unity of the legal personalities of husband and wife (so that the plaintiff and the
defendant are the same legal person) or from the belief that it would be disruptive to
the family to allow damage suits between spouses. The modern tendency is to permit
delict or tort action between spouses. This seems consistent with the fact that many
damage suits, such as automobile accident claims, are covered by insurance, and the
litigation in such cases is therefore between two insurance companies with the
spouses as nominal parties. Movements exist in North America and Europe
favouring the recognition of a “no-fault” basis for certain delict or tort proceedings;
this would transfer the emphasis in such actions to securing compensation for the
person who suffered the damage, rather than determining whether the plaintiff can
establish a cause of action (which usually means proving fault).
Co-ownership
Some marital property systems that are basically separation of property have
modifications for the situation in which, for example, an asset has been acquired by
contributions from both spouses with the intention that both will benefit from its
purchase—as with a home, furnishings, an automobile, a joint bank account, or joint
investments. But the attitudes of the spouses as to their property after a marriage has
broken down may be quite different from their intentions when an asset was
acquired. There are decisions of the English courts that imply that in some of these
circumstances, at least, the net value of the asset should be divided equally on the
maxim that “equality is equity.” The boundaries of this principle, however, are not at
all certain.

Japanese marital property law was revised in 1947, and the present legal regime is a
modified form of separation of property. Under this regime, property to which only
one spouse has title, but in the acquisition of which both have really cooperated
during their marriage, is considered substantially co-owned. The civil code has been
interpreted to the effect that substantially co-owned property is attributed to the title
holder in a question involving third parties and to both spouses in a question
between the spouses themselves.
Divorce
A marriage can terminate as a human relationship before it is dissolved by law. Quite
often the court rulings as to property and the custody of children will merely confirm
arrangements that have already been made by the parties concerned. Before a union
can be dissolved by divorce, there must have been a valid marriage. If a marriage has
been imperfectly constituted in law, it may be annulled; grounds
for annulment include lack of capacity, no reality of consent by the parties, a vitiating
defect in the marriage ceremony, or the subsequent discovery of a “defect” such as
inability to consummate the marriage.
In old legal systems, marriage was conceived as the transfer of a woman from the
power of her family to that of her husband under terms usually specified in the
marriage contract. The standard method of dissolving a marriage if both parties were
alive was repudiation, resulting usually in the return of the woman to the power of
her family. Repudiation has had a considerable history; it has strongly
influenced marriage law in Muslim, Jewish, Chinese, and Japanese law. In Islamic
law, repudiation can occur without proof of legally designated fault or a breakdown
of the marriage. In practice, of course, there are checks on the too facile use of this
power by a husband, such as objection from the wife’s family, the obligation to repay
the value of a dowry, or religious disapproval. In Roman marriage law, unilateral
repudiation at will was permitted, and this freedom existed for some time in the early
Christian era. The concern of the Roman law was for solemnity rather than grounds,
and unilateral divorce was by a notification of repudiation before seven witnesses.

At the other extreme from repudiation at will is the view of marriage as a sacrament
(as in the teaching of certain Christian churches) that may not be dissolved during
the joint lives of the spouses. Formerly, a Hindu marriage was indissoluble except by
caste custom; remarriage, for instance, might be tolerated only for women of lower-
ranking castes.

Between the extremes of repudiation at will and indissoluble marriage, there are
various divorce formulas: divorce for fault, such as adultery, desertion, cruelty,
alcoholism, or imprisonment; divorce on grounds analogous to frustration of
contract, such as incurable insanity subsequent to the marriage or disappearance of
the spouse; and, more recently, “no-fault” divorce, on grounds such as
incompatibility, irreconcilable differences, and irretrievable breakdown of the
marriage.

A complicating factor in divorce law is the question of giving recognition

to foreign divorces. The divorce laws of countries and states differ, and so do their
rules for recognition of divorces elsewhere. A person living in a jurisdiction in which
divorce is difficult to obtain may be able to go to another in which divorce laws are
more liberal and obtain a dissolution of the marriage that will be recognized in the
first jurisdiction. A feature of private international family law is the “limping”
relationship—when a person is regarded as married by one country and as single by
another, or when a child is regarded as legitimate by one country and
as illegitimate by another. One reason why a country may restrict the recognition of
divorces is that there are a number of jurisdictions in which divorce is granted on
liberal grounds and with only nominal connections between the spouses and the
divorce-granting jurisdiction (sometimes giving the impression of “divorce mills”
that are operated for commercial reasons).

Divorce stems from the desire to end an intimate human relationship that may have
existed for some years. It is not an ordinary dispute at law; it has little in common
with the interpretation of a business deal, a tax claim, a criminal charge, or other
legal questions that can be presented fairly precisely. In a divorce, only the spouses
can really know the differences between them, and neglect of this distinction can
produce reasoning by false analogy.