RECENT LEGISLATION ON MATRIMONIAL PROPERTY*
| Published date | 01 November 1970 |
| Date | 01 November 1970 |
| Author | O. Kahn‐Freund |
| DOI | http://doi.org/10.1111/j.1468-2230.1970.tb01300.x |
THE
MODERN
LAW
REVIEW
~~
Volume
33
November
$1
970
No.
6
RJECENT
LEGISLATION ON MATRIMONIAL
PROPERTY
*
I
THOSE interested
in
the reform
of
matrimonial property law have
the occasion this year
of
celebrating an important centenary:
it
was
in
1870
that Parliament passed the
fir&
Married Women's
Pre
perty Act. The AcGfollowing in the wake of
John
Stuart
Mill's
pamphlet
on
the Subjection
of
Women published
in
1869-was a
limited measure
:
it
was mainly-though not exclusively-concerned
w5th
a
woman's
own
''
wages and earnings,"
l
and
it
was destined
to
be
short lived.
In
1882
it
was replaced by the Married Women's
Property Act
of
that year, a more far-reaching and
a
more deter-
mined step in the reform of matrimonial property law.
Nevertheless the statute
of
1870 is important, not only as a
piece
of
legal history, but also
for
its symptomatic significance. At
the time when
it
was passed nobody in this country considered as
yet the problem
of
khe effect of marriage
on
property in its entirety.
What was going to happen to the husband's property was
not
yet
seen as a subject
of
legislation at all, neither was the general prob-
lem of who should
own
what the spouses acquired during marriage
through their joint efforts. Legislation was considered principally
as a means
of
protecting against the effect of the
common
law those
married women who were gainfully employed
or
enjoying some
inherited wealth.a
In
shont,
no
one even reflected upon the effect
*
The author
is
very grateful
to
Mr. Stephen
M.
Cretney
of
Exeter
College,
Oxford, who
red
B
draft manuscript
and
saved
the author from a number
of
midaka
1
"
The
wage#
and
earnings
of
any
married woman acquired
or
gained
by
her.
.
.
in
any employmen$,
occupation
or trade
in
which she
is
engaged or which
she
carries on separately
from
her husband, and also any money
or
property
,80
acquired through the exerciee of any litemry, ehirutic,
or
Fientific
skill,
and
all inwwtmenk of
such
wag*,
earnings,
money or
property (8.
1).
The
reference
to
literary, arti&ic
and
scientific @kills
is5
a
reminder
of
the
d&ve
role played
in
&he sgihtion
for
the
reform of
khe
law by professional women,
arti&
and
writers. Thie was
the
generation of George Eliot.
a
See
s.
7
of
the
1870
Act.
"hose
with more
hhan
a modicum of inherited
weahh
were
normally protested
by
marriage 9ettlemab.
601
VOL.
33
21
603
THE
MODERN
LAW
REVIEW
VOL.
33
of marriage
on
property in terms of
a
systematic approach, of
a
rdgime matrimonial
such
as
had
been
part of the living law across
the Channel
for
centuries and was codified
in
the Code Napo160n.s
And the idea that
a
share in the property acquired by
or
destined to
the use of the family was due to
a
woman in view
of
her work or
her
thrift
was nowhere near the horizon
a
century ago. Today this
is one of the central problems
of
matrimonial property law.
Much has happened since the passing of the Married Women's
Property
Act
of
1t182
'
and by
far
the most important series of
events was the sequence of statutes regulating the law of intestacy
which revoluitionised
the
principles governing the financial position
of
the widow or wjdower in the event of the other spouse having
died intestate.
Under
the present law
it
is
only in exceptional cases
of comparatively Iairge estates that, upon
an
intestacy, the surviving
spouse does not inhmit everything.6 Whether
this
is
a
good thing or
a
bad thing-there
is
a
case
for sayiug that the law gives insdcient
pratection to the children
of
a
marriage which has collapsed-it
overshadows the intensive discussion
on
the future
of
matrimonial
propty law which
is
now developing in this country,' and
no
comparison of the matrimonial property law
of
this country with
that
of
any foreign country has any value unless the
law
of
intestacy
and the
law
of
''
provision
''
for the
family
out of the estate in
defiance of
an
aclverse
will
are constantly borne
in
mind.
Seen
in a
comparative
context,
the English law of succession is characterised
not only by the generosity with which
it
treats the surviving spouse
in the event
of
intecitacy but
also
by its reluctance to give her
or
him
adequate protectioxi in
the
event of
the
exercise by the predeceasing
if@
des
6poux."
Tha
ntle comprised
195
articlae.
By
the lsw of.JuIy
$%65
(in
force
sinca
February
1,
1966)
it
was
rep'*
by
a
new Title:
Du
contrat
de meriege
et
dee
dgimes m&.rimoniaux which mu& be reed in the light
of
the new fundamentd
provisions
in
Arte.
9lnPaa8.
The
new
legislation is
mhorter; whether
the
law
h9e
been
eimpliiied
L
enother question.
4
In
Pettitt
v.
Pettitt
[1969]
!2
W.L.R.
.W,
980
B
Lord Mmie of Frth-y-C+e&
mentioned
and
to
mme
exten6
deumbed
the
p&em
.
.
.
7hch rdects
eocie,l
mnditione which differ from those
in
eerlier
decedee
end
which
appeared
in
M)
meny
of
the
C&BBB
under
e.
17
decided in
the
lower
courts
since
Rirnnner
v.
Rimmei
[1%3] 1
Q.B.
68
(C.A.).
with
the
Inktaka'
lhtatae
Act
1890.
The
modem.18~
dae
from
B.%
of
athe
Adminidmtion of
Ehka
A&
1926,
whch
is
in
fow
in
the
form of
&he
lriret Schedule
to
the Int-'
Act
1963,
88
emended
by
e.
1
of
the Farmily
Provieion
Aot
1966.
In
the absence
of
issue
and
of
parents,
brothers
and
sisters of the whole
blood
and
Itheir
iarma
the
-vhg
spouse
gets
,$I.
If
&bare
is hue, &he
surviving
epouae
gets
lthe
patonal
chdblm,
€8,760
(or mch larger
amount
an
lthe Lard Chancellor may fix from time
b
time)
fm
of
de&h
dntiea
and
cost%,
and
8
life inhere& in hdf
the
residue.
If
there is
no
iwue
but
a
parent
or
a
brother or sister of the whole
blood,
she
gets
B0,oOO
(or such
larger amount
BB
the
Lord
Chancdor
msy
fi;x
from time
b
time),
free
of
death duties and
olmts,
the
person&
chattels,
end
hetf the residue absolute1
.
*
I&
ie
unktood
eat
at
the
time
of
writing
the
~w
commieaion
G
mJe
caneiderable
progress wilth the
ddt
of
e
working paper
on
Fdly
Property
Law which
is
.to
cover
the problems of &he makimoniel home, famil pro-
vision
and
rig&
of
inherit.mce,
end
the
gaed
queetion,
olcom-
munity
of
property.
3
Book
m,
Vtl6.V:
"Du
oonltret
de
dage
et
dea
bib
~e8
6
Be-
Nov.
1970
RECENT
LEQIBLATION
ON
MATRIMONIAL
PROPERTY
608
spouse of
his
or
her freedom of testation in
a
manner adverse to the
interests of
his
or
her spouse and ~hildren.~ The reform of the law
of family provision
will
have to. be an integral element in the reform
of the law of family property. This may have
to
lead to
far-
reaching restrictions of the freedom of testation.
It
will
not
be
discussed in the present article which
will
be
restricted to
inter
vivos
problems, and touch the situation arising
on
death only
indirectly.
It
stands to reason that the unwillingness of the legislature to
restrict the freedom of testation gives added strength to demands
for the introduction of
a
system of community of property which,
upon the death of either spouse, automatically reserves
a
pre
determined proportion
of
the joint assets of the spouses to
the
survivor
(as
it
does in France).* Consequently, those who
are
opposed to the introduction of
a
community system are compelled
to reflect upon
a
radically improved scheme of family provision.
On
the other hand, however, the structure of the English law
of intestacy reduces the strength of the case for
a
community
system and indeed diminishes the importance of compariaona
between the law of this country and that of “community
’’
countries. Where the rights of
the
surviving spouse in the event of
intestacy are very limited (as they were in Western Germany until
1958
lo
and
as
they still are in France),’l the distribution of the
assets
between the spouses must be
a
matter of vital importance in
the normal case
of
the termination of marriage by the death of one
of the spouses.
It
is partly due to the law of intestacy that in
this
country the discussion
on
matrimonial property law (inside
and outside the courts) can be, and is being conducted
so
largely
in
terms
of divorce, annulment and judicial separation, and
of
marriage breakdown in general.
8
Even in the
form
they have now received
by
Sched.
3
to lthe Famil
Pro-
vision
Act
1M,
lthe Inheritance
(Family
Provision)
ihb
1-
and
w.
&-%A
of
the
&trimoni&.l
Causes
Aot
1965,
remain provieiom for
Q
right
to
main-
tenance
end do
not
give to the
eumving
qoue
any
right
b
a
fixed Bum or
proportion
of
the
esltrute.
10
BQB,
para.
1931:
to take the most important example: one-quarter of the
&te
where there wae issue.
Butt
under the law
of
1957
the surviving
spousa
now g0t.S
a
fmther quarter
of
+.he
&ate
to
aooounb
for
her
or
his
share in
the
Zugetoinn
ur
matrimmk.l
acqueete.
This however
b
by
virtue
of
matzi-
monjal
and
not
by
virtue of
euccmmral
right with the
not
unimportant
con-
quence Chat
the
second
quahr
i5
n~
eubject
b
legacy duty. The v
ccrmplicuted poeihion i5 euccindy explsined in Beitzke,
Famdtimrecht
(13
ed.,
1970),
pp.
88
et
seq.
11
Ad.
767
C.C.
Only
B
utsuflllct in one-quarter
of
lthe
&te.
if
+.here
ie
le@ti-
make
ieaue.
This
is
the result
of
an
amendment
of
lthe
Code
of
19%.
Since
thie
usufrucrt
can.
cut
the
option
of
6he heim,
be
oonverted
inb
a
life
annuity
(rente
ciagdre)
one
can
eay,
with some justificetion, Qh& where there is
issue,
French law
treah
the eurviving
epcmae
in
the
even6
of
inhtiacy,
in
the way English law treats
him or
her
in
the event
of
disinheritance, with
the
vital differences that the French
riglkt
is
fixed
by
law and
is
not diecretionarg
end
that it must
be
seen
in
conjmotion
with
6he
matrimonial communi6y
right.
9
Code
Civil,
Art.
1475
(in the form of
the
law of July
13, 1966).
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