Matrimonial Property–‐Some Recent Developments
| Published date | 01 May 1959 |
| DOI | http://doi.org/10.1111/j.1468-2230.1959.tb00525.x |
| Date | 01 May 1959 |
| Author | O. Kahn‐Freund |
THE
MODERN LAW REVIEW
Volume
22
May
1959
No.
3
MATRIMONIAL PROPERTY-SOME RECENT
DEVELOPMENTS
ALMOST
a quarter of a century has elapsed since the passing of the
Law Reform (Married Women and Tortfeasors) Act of
1935.
One
of its purposes was to get rid
of
a number of anomalies in the law
of married women’s property which had survived previous legisla-
tion,’ and in eliminating these, Parliament gave expression to the
principle of the separation of property between husband and wife.
That neither spouse acquires by marriage any right in the other
spouse’s property had been the policy and the broad effect of the
Married Women’s Property Act,
1882,
but owing to the imperfect
legislative technique adopted in that statute
it
was not until
1935
that the principle of separation clearly emerged as the dominating
rule of the English law
of
matrimonial property. The rule of separa-
tion of property appeared
on
the scene linked with the principle that
in
matters of private law and of civil procedure married women have
the same status and capacity as unmarried women and as men. The
conjunction between these two principles is, however, entirely the
outcome of the history of English law. Logically they are distinct.
Husband and wife may have the same capacity to contract, to
acquire and dispose of property, to sue and be sued in court, etc.,
and nevertheless they may by marriage acquire rights
in
each
other’s property, although for practical (not for logical) reasons
to be discussed presently
it
is difficult to reconcile community
of investment property with the rule of equality. That rule is today
in
this country and elsewhere in Western Europe and in North
America beyond controversy, but recent developments both here
and abroad have shown that a rigid principle
of
separation such as
that which is enshrined in the Act
of
1935
is unlikely to remain the
last word.
That
it
may be not only unrealistic but unjust to insist
on
an
uncompromising enforcement
of
the property norm between husband
1
See the Terms
of
Reference
of
the Law Revision Committee, dated Jan.
10,
1934.
and its Fourth Interim Report, Cmd.
4770.
The anomalies mentioned in
the Terms
of
Reference were those associated with the cases of
Scott
V.
Morley
(1887)
20
Q.B.D.
120.
C.A., and
of
Edwards
v.
Porter
[1925]
A.C.
1.
241
VOL.
a2
16
242
THE
MODERN
LAW
REVIEW
VOL.
n
and wife has clearly been the experience of the English courts.a
Husband and wife normally enjoy and use much
of
their property
together and very frequently their money and goods are mingled
so
inextricably that an appropriation of assets to one spouse
or
the other becomes a game in which the element of hazard exceeds
that of arithmetical skill. Law reformers, legislators and judges are
facing the problem of how to take account of these facts without
encroaching on the rule of equality
of
husband and wife.
Is
it pos-
sible to find a compromise between the principles of separation and
of
community while at the same time preserving the equality
of
the
spouses in matters of property, contract, and procedure? The
present paper
is
intended to discuss some recent attempts to answer
this question.
It
will be necessary
in
the first place
(1)
to say a
word about community and separation in general, before
(2)
touch-
ing upon the question
of
a "community
of
surplus
"
and
(3)
surveying some special problems connected with
"
family assets,"
i.e.,
with the matrimonial home and its contents.
1.
SEPARATION
OR
COMMUNITY
?
The Royal Commission on Marriage and Divorce was, by its Terms
of Reference, charged with the duty,
inter
alia,
"
to consider
whether any changes should be made in
.
.
.
the law relating to the
property rights
of
husband and wife, both during marriage and after
its termination (except by death)."
It
was thus incumbent on the
Commission to examine proposals to introduce community
of
pro-
perty as a general principle of matrimonial law. The majority
of
the Commission rejected these proposals," and this decision is to be
welcomed, though not entirely and not exclusively on the grounds
on which
it
was made.
There are,
it
is submitted, strong arguments against a general
system of community of property
in
this country. One
of
these
appears in the Report
of
the Royal Commission
5:
it
is that, as
shown,
e.g.,
by French 1awY6 community
of
goods
is
in practice
2
In at least three types
of
cases,
~iz.
(1) those connected with the position of
the deserted wife occupying the matrimonial home,
e.g.,
Bcndafl
v.
McWhirter
[1952]
2
Q.B.
466,
C.A.,
and many others, the most recent example at the
time
of
writing being
Chuscher
V.
Street
[19591 2
W.L.R.
66,
(2)
those in
which the wife asserted as against the husband her property in the mat,rirnonial
home,
such
as
Shipman
V.
Shipman
[1924]
2
Ch. 140, C.A., Boyt
V.
Boyt
[1948] 2
All
E.R.
436, C.A.,
or
Gorulntck
V.
Gorulnick
[1968]
P.
47, C.A.,
or
in which she asserted her matrimonial right against his property right
ns
in
Silcewtone
v.
Siloerstone
119531
P.
147, and (3) those in which the court had
to divide between the spouses the proceeds of the
sale
of some asset. such
a8
Rimmer
v.
Rimtner
[1953]
1
Ch. 363,
C.A.,
and other cases disciissed below.
3
Cmd. 9678 (1956).
4
Cmd. 9678,
Para.
651, pp. 176177.
5 Para. 651 (iii), p. 177.
6
Code Civil, Art. 1421:
"
Le
mari administre
seul
lea
hiens de
la
commiinaut6.
I1
peut
lea
vendre, alibner et hypothbquer .sans le concours de
sa
femme."
There are certain limitations on his power in
Art.
1422, and in amending
legis-
lation
of
1938 and 1942, but these are not very significant.
See
Marc Ancel, in
MAY
1959
MATRIMONIAL PROPERTY
243
incompatible with equality of the sexes. Someone must administer
the community property, and there seems to be only one exception
‘
to the general rule that in those legal systems in which a community
of goods between husband and wife arises by operation of law,” the
common property is administered by the husband. The law may
restrict his powers,
e.g.,
with regard to gifts
or
to transactions con-
cerning land, but the ultimate decision,
e.g.,
on
&
choice of
investments, rests with him. To this extent the community rCgime
entails
a
“
subjection of women,” a point which was perhaps dimly
perceived by the delegate to the Nevada Constitutional Congress of
1864
who justified his vote in favour of a community rCgime with
the lapidary pronouncement that
“
he did not like
‘
he-women.’
”
The rights of the wife under
a
community system may be
so
attenuated as
to
be mere expectations
lo
or
they may be legally
protected property rights
l1
:
her powers of disposition and manage-
ment are of necessity suspended. Of necessity, because the alter-
native would be joint administration as envisaged by the minority
of the Royal Commission who argued that the community
c6
should
be administered by husband and wife acting together.”
l2
This
fcrmula however is no answer to the question raised by the majority
:
what would happen if either spouse ran a business and the other
objected
to
the ploughing back of profits
or
insisted in sharing in
the management?
If
the husband wants to speculate in oil shares
and the wife in real estate, who is going to decide
?
Joint adminis-
tration would involve the frequent intervention of a court in
situations in which the marital relations themselves do not call
for
such intervention. One may envisage situations in which a healthy
marriage may be undermined, not
SO
much by the difference of
opinion itself as by the need for, and the possibility of resorting to,
court proceedings for its settlement. This applies to all forms of
community which comprise investment property, including the more
Friedmann (ed.),
Matrimonial Property Law
(19.55), p. 13; Deshois, in Ronast
(ed.)
,
Le RCgime Matrimonial dans les Ldgislations Contemporakes
(1957),
pp. 191
et seq.
7
The exception is the law
of
Soviet Russia:
EM
Hazard, in Friedmann,
Matri-
monial Property Law, supra,
pp. 212
et
seq.;
Fridieff, in
Rouast,
Le
RCgime
Matrimonial, supra,
pp. 329
et seq.,
esp. p. 331.
8
Flirther
examples
are
the
hws
of Quebec
(see
H.
Turgeon,
in Friedmann,
Matrinzoniol Property Law,
pp. 139
et seq.,
esp. p. 147); of t.he Union
of
South
‘Africa, formerly also
of
Southern Rhodesia (see
T.
W.
Price,
ibid.,
pp. 188
et scq.,
esp. p. 191); of Louisiana (see
C.
J.
Morrow,
ibid.,
pp. 29
et
seq.,
esp. p. 48); and
of
Arizona, California, Idaho, Nevada, New Mexico,
Texas, and Washington (see
R.
E.
Clark,
ibid.,
pp. 39
et
seq.,
esp. p. 101,
and
M.
R. Kirkwood.
Historical Background and Objectives
of
the Law
of
Community Properly in
the
Pacific Coast States
(1936)
11
Washington Law
Review 1, reprinted in
Selectcd Essays on Family Law,
1950, pp. 514
et seq.).
10
See,
e.g.,
the
law
of
California
a8
analgsed in Rirhard R.
B.
Powell,
Community
Property-A Critique
of
its
Regulation of Intra-Family Relations
(1936) 11
Was11.L.R.
10,
reprinted in
Selected Essays on Family Law,
1950,
pp.
525
et
snq.,
at pp.
510
et seq.
9
Kirkwood,
ibid.,
p.
533.
11
See
the
analysis
of
the law
of
Washington,
ibid.,
pp. 516
et seq.
12
Cmd. 9G78, Para. 652 (ii), p. 178.
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