Matrimonial Property Law In Denmark
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01051.x |
| Published date | 01 March 1965 |
| Author | Inger Margrete Pedersen |
| Date | 01 March 1965 |
THE
MODERN
LAW
REVIEW
Volume
28
March
1965
No.
2
MATRIMONIAL PROPERTY LAW
IN
DENMARK
THE system of communal property has in Denmark-as in a
number of other continental countries-a long history as the system
by which matrimonial property is held. Until
1880
the husband,
however, was solely entitled to administer and dispose of com-
munity property. The wife was legally a minor, which meant that
if she had separate property under a marriage settlement the
husband had to administer it. In
1880
the wife obtained the right
to administer income earned by her outside the matrimonial home,
and in
1899
she lost her status
as
a
minor,
but she was allowed no
direct part in the administration of communal property, although
the husband in some cases had to obtain her consent.
The reason
for
the reforms in
1880
and
1899
of course was the
change in the position of women that was taking place in this
country as in many other countries in the nineteenth century-
the same development that resulted in the Married Women's
Property Act,
1882,
in
England. As early as
1875
the question
was dealt with at a Scandinavian level, at the Second General
Scandinavian Lawyers' Conference. On this occasion an eminent
Danish lawyer stressed that the legal establishment of separate
property would give the wife the advantage of the right to adminis-
ter her own property. But he also emphasised that this rCgime
would mean that the wife lost her half share of the communal
property, and that wives who worked in the matrimonial home
only might thus be put in an inequitable position.
Discussions continued at a Scandinavian level and the present
Danish Matrimonial Property Act of
1925
is
based upon the work
of
a
committee which co-operated very closely with
the
similar
committees set up in the other Nordic countries at the beginning
of this century. In
fact,
the matrimonial property law system in
Denmark is in its main principles the same as those in Finland,
Iceland, Norway and Sweden
:
these countries all have legal
rkgimes giving the spouses
during
mam'age
an equal right to
1
Act concerning
the
Legal Effecta
of
Marriage,
no.
66,
March
18,
1925.
137
VOL
28
6
188
THE
MODERN
LAW
REVIEW
VOL.
28
administer and dispose of property and
at
its
dissolution
(either by
death
or
divorce) a half share of any property owned by them.
That the five countries have used three different types of termino-
logy does not alter this fact, although
it
must be rather bewildering
for the foreign student that Denmark, for example, calls its system
a communal property system, whereas Sweden has used the term
"
matrimonial property
)'
(giftorcittsgods).
The purpose of this article is
to
describe how the present Danish
system has solved some fundamental problems concerning the
financial relationship between spouses. To illustrate some
of
the
more important aspects, comparisons will frequently be made with
the two most modern matrimonial property systems in the western
world: the Dutch system, introduced in
1956,*
and the system of
the German Federal Republic, introduced in
1957.*
But a full
description of these two systems
will
not be attempted.
FUNDAMENTAL
P~CIPLES
As
mentioned above, Danish lawyers at a very early stage were
well aware that there was one aspect of the old-fashioned communal
property system which offered great advantages to the wife with
no
work outside the matrimonial home: the fact that
all
property
acquired by the spouses belongs
to
both means that at its dissolution
she obtains a half share.
On
the other hand a system of separate
property will mean to the housewife that her position of equality
is freely admitted and stressed, but that the husband
(or
his estate)
keeps the whble estate when the marriage is dissolved.
As
it
is
nowadays widely,
if
not universally, admitted that
a
wife who takes
care of the home and the children is contributing her share to the
family finances and that her work has an economic value, this
was not thought a satisfactory 'solution.
Neither would it be a satisfactory solution in the frequent cases
where a wife assists the husband
in
his trade, profession, etc., and
it must also be kept in mind that there may
be
many instances
where a system under which there
is
no
sharing of property may
be unfair to the husband,
e.g.,
when he has assisted the wife in a
business undertaking
run
by her
or
where both of them earn inde-
pendent incomes, but he has defrayed more than his share
of
the
household and other family expenses.
The fact that
in
case of death the surviving spouse is entitled
to a compulsory share of the inheritance has never been felt to offer
sufficient protection. Moreover, the inheritance law does not solve
the most difficult problems-those arising in case of divorce and
separation.
oroulo).
auf
dem Gebiete des burgerlichen Rechts).
2
Act
of
June
14,
1956
(Wet tot ophefling
o4n
de hondeZsonbekooamheid
om
de
8
Act
of
June
18,
1967
(Gesetz 4ber die Gleichberechtigung
oon Mann
und
Frau
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