KOLKMAN PL2 2014 1

Prof. dr. Wilbert D. Kolkman

Private Law 2 2014-2015
Week 2
Matrimonial property law
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Outline for today
A. Marriage
B. Matrimonial property regimes
C. Marriage contracts
D. Unmarried cohabitation

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A. Marriage
Numbers
2.2 million marriages in EU in 2010
1 million divorces in EU in 2009
16 million international couples in EU [2011]
Does marriage affect proprietary rights spouses?
Principle 4:3, each spouse has full legal capacity

England Netherlands
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Puchasing power after divorce/separation
The Netherlands, 2007
Women:
Formal relationship: - 21%
Informal relationship : - 14 %

Men:
Formal relationship : + 33%
Informal relationship : + 23 %

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Entering into marriage
Just say yes
Will you accept X as your spouse and
faithfully carry out all duties which arise by
operation of law from the marital status?
Advice?

Hole in
my
pocket
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B. Matrimonial property relations
Common structure
I. General rights and duties spouses
rgime primaire
mandatory
II. Matrimonial property regime
rgime secondaire
supplementary
III.Matrimonial property agreements


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Principles of European Family Law Regarding
Property Relations Between Spouses


In search of a common core
Inspiration for national legislatures
Chapters
1. Rights and duties
2. Marital property agreements
3. Two matrimonial property regimes
participiation in acquisitions
community of acquistions
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Uniform European matrimonial p.l.?
http://ceflonline.net
http://www.coupleseurope.eu/en/home
Guiding principles
Equality, fairness, sharing, legal certainty,
flexibility, autonomy, simplicity
Choice of law
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I. General rights and duties spouses

Spouses have equal rights and duties
Principle 4:2
Family expenses and household
Principle 4:4 Each spouse should contribute to the
needs of the family according to his or her ability
Jointly & severally liable for debts incurred by one
Disposing of rights in home: joint consent
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I. General rights and duties spouses

Duty to inform
Principle 4:8 Each spouse has the duty to inform
the other about his or her assets and debts and
about significant acts of administration in so far as
it is necessary to enable the other to exercise his or
her rights
No common core
Only regarding c.o.p? also personal prop? also
administration? before or during marriage? upon request?

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II. Matrimonial property regime
Preliminary remark
Matrimonial property, maintenance, pension
sharing, allocation (use of) marital home
Civil law: several pillars
for financial consequences of divorce
Common law: one package
clean break

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Matrimonial property systems (I)
1. No system
(separate property)
2. Limited community of property
(community of acquests)
3. Deferred community of property / claim
(participation system)
4. Universal community of property

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Based on CEFL series 33, p. 140-141
Default
matrimonial
prop systems
Separation of
prop during
marriage
Separation of prop
e.g. Austria,
Catalonia
Separation of prop
with distribution by
comp authority
e.g. England,
Ireland
Participation in
acquisitions /
community of
accrued gains
e.g. Switzerland,
Germany
Deferred
community of
property
e.g. Nordic
countries
Community of
prop during
marriage
Community of
acquisitions
(limited c.o.p.)
e.g. France, Italy,
Spain
Universal
community of prop
The Netherlands
A and B are getting married tomorrow

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A and B are married in England

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Universal community of property
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- Limited community of property
- Universal c.o.p. with exceptions
- Deferred c.o.p. upon dissolution
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Dissolution of community of property
- Divorce
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Dissolution of community of property
- Spouse A deceased, B inherits
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Dissolution of community of property
- Spouse A deceased, X and Y inherit
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Netting covenant, compensation claim






Ius in rem vs. ius in personam
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1. Seperate property
England, Wales
Redistributing as he thinks fit
Matrimonial Causes Act 1973. S. 25
1. Welfare of child under 18
2. - Income, earning capacity, property
- Financial needs
- Standard of living (before breakdown)
- Age of spouses, duration of marriage
- Contributions made to welfare of family,
including by looking after home or caring for family
Reasonable requirements, one third rule
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Hanlon v. Law Society [1981]
Lord Denning
the court takes the rights and obligations of the parties all
together and puts the pieces into a mixed bag. Such pieces are
the right to occupy the matrimonial home or have a share in it,
the obligation to maintain the wife and children, and so forth.
The court then takes out the pieces and hands them to the
two parties - some to one party and some to the other - so that
each can provide for the future with the pieces allotted to him or
to her. The court then hands them out without paying any too
nice a regard to their legal or equitable rights but simply
according to what is the fairest provision for the future, for
mother and father and the children.
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White v. White [2001] (House of Lords)
Marriage 1961-1994, 4.5 m (exceeds need)
Equal division
a judge would always be well advised to check his
tentative views against the yardstick of equality of
division. As a general guide, equality should be
departed from only if, and to the extent that, there is
good reason for doing so.
in seeking to achieve a fair outcome, there is no
place for discrimination between husband and wife in
their respective roles.
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English cases
Cowan v. Cowan [2001] (Court of Appeal)
fairness certainly permits and in some cases requires
recognition of the product of the genius with which only
one of the spouses may be endowed
F 38 %, M 62 %
Role of the homemaker
Greater than just domestic?
Just domestic?
Less than just domestic?
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Miller v. Miller; McFarlane v. McFarlane
[2006] UKHL 24
Miller: childless marriage, less than three years
Husbands assets 17 million
Equal division after short marriage?
McFarlane: three children, marriage over 16 years
Husband and wife had successful careers
They agreed wife would be homemaker
On divorce, capital was insufficient to enable clean break
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Miller v. Miller; McFarlane v. McFarlane
Requirements of fairness
Welfare of the children, and:
1. Financial needs (MCA 1973, S 25(2)b)
fairness requires that the assets of the parties should
be divided primarily so as to make provision for the
parties' housing and financial needs, taking into account
a wide range of matters such as the parties' ages, their
future earning capacity, the family's standard of living,
and any disability of either party.
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Miller v. Miller; McFarlane v. McFarlane
2. Compensation
aimed at redressing any significant
prospective economic disparity between the
parties arising from the way they conducted
their marriage.
the wife suffers a double loss

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Miller v. Miller; McFarlane v. McFarlane
3. Sharing
derives from the basic concept of equality
permeating a marriage as understood today.
Husband and wife are now for all practical
purposes equal partners in marriage
R v. R [1992] 1 AC 599, 617
The yardstick of equality is to be applied
as an aid, not a rule.
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Miller v. Miller; McFarlane v. McFarlane
Many jurisdictions distinguish
Matrimonial property = matrimonial home plus
property acquired during marriage
other than by gift or inheritance (marital acquest)
Non-matrimonial property = other property
English point of view
No such distinction
Non-marital prop and short marriage:
fairness requires no sharing

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Conclusion English law
No irrebuttable presumption of equal sharing,
but confinement of judicial discretion
Tending towards deferred community,
with wide judicial discretion?
Continent: rule-based approach
England: rule-based discretionary approach?

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2. Limited community of property
(community of acquests)
Romanic countries
France, Spain, Italy, Portugal, Belgium
Eastern Europe
E.g. Croatia
Three property categories
Usually: concurrent administration
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Limited c.o.p.
Community property or personal property?
Assets prior to marriage
Home
Income
Acquisitions by gift or inheritance
Substitution, investment, reinvestment
Pension rights, etc.
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Limited c.o.p.
Debts
To be recovered against personal prop
and community prop?
Administration
(acts related to disposal, use)
Community prop = concurrent adm
Personal prop = personal adm
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Limited c.o.p.
France
Art. 270 Cc: L'un des poux peut tre tenu de verser l'autre
une prestation destine compenser [] la disparit que la
rupture du mariage cre []. Elle prend la forme d'un capital
dont le montant est fix par le juge.
Compensatory transfers, e.g. real estate
(matrimonial property law + maintenance)
Croatia
C.o.p. consists of property acquired through any labour
during marital union, and income derived from that property
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3. Deferred c.o.p. / claim
(= participation systems)
Nordic and Germanic systems
Separate property during marriage,
equal division upon divorce
Two models
1. deferred community
2. statutory compensation clause

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Deferred c.o.p. / claim
Norway
Housewife-case (Marriage Act 1991, 31 - 3)
In assessing who has acquired items of
property that have been used by the spouses in
common and personally, such as a common
residence or ordinary household goods, due
consideration shall be given to the work of a
spouse in the home.
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Deferred c.o.p. / claim
Denmark and Sweden
Deferred equal division, unless
Short marriage
Sweden: one-fifth of matrimonial property
enters into property division for each year of
marriage
Unjust
e.g. due to difference in capital brought in

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Deferred c.o.p. / claim
Sweden
Dold samgandertt (hidden joint ownership):
1. joint intention of spouses that acquired property shall
be jointly owned;
2. non-purchasing spouse has contributed financially to
purchase; and
3. purchasing spouse was aware that contribution of
other was made to obtain share in property
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Deferred c.o.p. / claim
Germany
Comunity of accrued gains
(Zugewinngemeinschaft, par. 1363 BGB)
Final property minus initial property
Spouse with smaller acquisition entitled to half the
amount of difference between accrued gains
Unless gross inequity
Possibility to opt for
Community of property (Gtergemeinschaft)
Separation of property (Gtertrennung)
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Zugewinnausgleich
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Deferred c.o.p. / claim
Greece
Participation in acquisitions
Premarital prop, inheritances, gifts excluded
Rebuttable presumption
1/3 of property augmentation is attributed to
contribution of the other
(art. 1400 GCC)
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French-German agreement Feb 2010
Optional Matrimonial Property Regime of the
Community of Accrued Gains
Aimed at unifying substantive law
Marriage contract
Separate property
Initial assets, final assets
Art. 12 1 If the accrued gains of one spouse exceed the
accrued gains of the other spouse, the other spouse can
claim half of the surplus [].
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Deferred c.o.p. / claim
Participation in acquisitions (Principle 4:17, 19, 31)
4:17 1. Participation in acquisitions is a matrimonial property regime
during which property is owned seperately by the spouses.
4:17 2. Each spouses property comprises acquisitions and reserved
property.
4:17 3. Upon dissolution of the regime each spouse participates in the
acquistions made by the other during the regime in accordance with [].
4:31 1. If one spouses net acquisitions exceed the value of that of the
other, the latter participates in the surplus to the amount of one half.
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Deferred c.o.p. / claim
Principle 4:19 Reserved property comprises
a) assets acquired before commencement of regime
b) gifts, inheritances and bequests acquired during reg.
c) assets substituting reserved property
d) assets that are personal in nature
e) assets exclusively acquired for spouses profession
f) increases in value of property included in (a) to (e)

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4. Universal community of property


10 -2
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4. Universal community of property


4 4
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Universal c.o.p.
The Netherlands
The great sponge (estate-merging)
All assets, all debts, also premarital
Advantages
Disadvantages
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Universal c.o.p.
Exceptions
During marriage
Exclusion-clause (gift / inheritance)
Close affinity
Upon divorce
Separation agreement
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Conclusion (I)
Matrimonial solidarity during marriage
Matrimonial solidarity upon divorce
Matrimonial home
One package or pillars?
Are systems really that different?
Basic principle: sharing wealth acquired during
marriage, independently of distribution of duties

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Conclusion (II)
Differences c.o.p. participation
C.o.p. regimes
More solidarity
Suits homemaker better
Property title stronger than monetary claim
Participation
More autonomy
Suits financially independent better

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C. Marriage contracts
Motives
Freedom, flexibility, tax
Autonomy
Waiving maintenance
Italy, Portugal (Art. 1720 PCC)
Time of agreement
Prenuptial, postnuptial, divorce
France, Portugal
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Taxes, e.g. inheritance tax



200 100 100
(house 100)













100 100
200
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Marriage contracts
Formalities
Independent legal advice / notary
Par. 1410 BGB The marriage contract must be
recorded by a notary, and both parties must be present.
Art. 1394(1) CC Toutes les conventions matrimoniales
seront rdiges par acte devant notaire, en la prsence
et avec le consentement simultans de toutes les
personnes qui y sont parties ou de leurs mandataires.
Registration; public?
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Marriage contracts
Netting
Each year, the surplus of the incomes of both
parties will be netted on a 50:50 basis, after the
household costs have been deducted.
Art. 1:141 Dutch CC: When a periodical
netting obligation is not complied with, the
then present capital is presumed to have been
formed from what had to be netted
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Compare
Accrual claim
Universal c.o.p.
Income netting
Netting as if married in c.o.p.
Husband Wife
Property at
beginning
100.000 0
Property at
dissolution
500.000 1.000.000
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Radmacher v. Granatino [2010] UKSC 42
Pacta sunt servanda?
1998 German Radmacher and French Granatino
marry in London
Ante-nup in Germany
Two daughters
2007 divorce
Granatino seeks ancillary relief
First instance: 5,560,000 awarded
Court of Appeal: agreement valid
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Radmacher v. Granatino
1. Distinction between ante- and post-nuptials?
Old rule: agreements providing for future
separation are contrary to public policy
MacLeod v. MacLeod [2008] Privy Council
public policy rule does not apply to post-nuptials
Supreme Court: no general distinction between
ante- and post-nuptial agreements

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Radmacher v. Granatino
2. What weight has ante-nuptial agreement?
Before Radmacher, judge takes agreement into
account as one of the factors
The court should give effect to a nuptial agreement
that is freely entered into by each party with a full
appreciation of its implications, unless in the
circumstances prevailing it would not be fair to hold
the parties to their agreement.
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Radmacher v. Granatino
give effect freely entered unless unfair
Rebuttable presumption
1. Valid?
Usual grounds
Matrimonial grounds
2. Unfair?

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Radmacher v. Granatino
What may render agreement unfair?
1. Reasonable requirements of children not met
2. Unforeseen events
3. Spouse is left in a predicament of real need
What is need?
4. Breadwinner entitled to retain all earnings

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Radmacher v. Granatino
What may render agreement fair
(not necessarily unfair)?
1. Unequal sharing of products of marriage
2. Other spouse no claim on property acquired
before marriage, or by gift/inheritance
3. Foreign contract, enforceable in other country

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Radmacher v. Granatino
Dissenting opinion Lady Hale
Marriage as a status or
as a contract?
Gender discrimination
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Uniform European law on nuptials?
CEFL
Requirements
Party autonomy
In writing
Independent legal advice
Disclosure
Pacta sunt servanda
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D. Unmarried cohabitation
Popularity
Rising number
Partnership agreement and last wills
Reasons
Definition
Criteria
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Unmarried cohabitation
Legal consequences
Does it create common property?
Does it imply maintenance obligations?
No alimony, but palimony?