Law Commission: Published Working Paper No. 42: Family Property Law 1971
| Date | 01 July 1972 |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb02356.x |
| Published date | 01 July 1972 |
REPOiRT
OF
COMMITTEIE
LAW
COMMISSION:
PUBLISHED
WORKING
PAPER
NO.
42:
FAMILY
PROPERTY
LAW
1971
WHATEVER may be the practical result
it
will produce, the publica-
tion of the Law Commission’s Working Paper
No.
42
will be a
landmark and possibly a turning-point in the development of family
property law. Its influence is likely to be felt far beyond these
Islands. The present writer had recent opportunity of observing
the role
it
is beginning to play in the debates on matrimonial
property law in some
of
the common law provinces of Canada.
The Paper eschews the dangerous distortion which is inherent
in the simplistic question:
‘‘
Separation
or
community
of
property
between husband and wife?
”
This way of putting the problem
ignores the elementary point that family property is not the same
as matrimonial property,
i.e.
that the property rights
of
the children
are inextricably linked with those of their parents.
It
also ignores
the mutual impact of matrimonial property
inter
vivos
and the right
of
a surviving spouse in the estate and against the estate of the
predeceasing spouse. But even if one disregarded all this, and
concentrated one’s attention entirely on the property relations
between the spouses, the question as put above would still be mis-
leading because the choice open
to
the lawmaker is not capable
of
being defined in terms
of
a simple antithesis of two possibilities.
There are many different variants of matrimonial communities
:
community of all assets, community of property acquired during
marriage through work
or
thrift, community of these
“
acquests
”
coupled with community of pre-marital movable property, and
innumerable hybrids. Much more important however, in addition
to community and separation there is a third option: this has been
and is being called by the Law Commission
“
deferred community
”
or
(which is preferable)
“
participation.” Under this system the
property of husband and wife remains separate as long as the
marriage continues to exist as a real union,
i.e.
as long as
it
has not
been terminated by death
or
divorce
or
has (divorce
or
no divorce)
irretrievably broken down. Even at that moment no single asset
becomes the joint property of the spouses. There
is
no transfer of
property. Instead there is an accounting operation
:
a calculation
is
made of the surplus of the value of the net assets each spouse had
at the moment of termination
or
breakdown over what he
or
she had
at the time of the marriage. These surpluses are aggregated, and
then equally divided between the spouses
or
their estates. The
crucial point is that out of the larger .surplus (normally the
husband’s) a balancing payment is made to the spouse having the
408
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