Community of property (marriage)
In the community of property is a property regime , which in many marriages and registered partnerships is applied. It is originally at home in the continental European legal system , but has recently also been found in some legal systems characterized by Anglo-American common law .
A distinction is made between the general community of property, the community of property in the event of death and various forms of the limited community of property (community of achievements , carpooling ). If only community of property is spoken of, the general one is usually meant.
What is characteristic of the community of property is that the property of the two partners is fundamentally the joint property of the partners involved. This finds its justification in the consideration that the common property is an expression of the at least theoretically exactly equal shares of both in the establishment and the further functioning of the family.
Germany
According to German family law, the community of property is a contractual property regime between spouses (cf. § 1415 BGB ). The provisions on community of property apply accordingly to life partners ( Section 7 LPartG ).
development
Before the German Civil Code (BGB) came into force , the community of goods was the legal property regime in East and West Prussia, Westphalia and many parts of northern Germany and Bavaria. From the entry into force of the BGB on January 1, 1900 to June 30, 1958, the agreement of a community of property automatically led to (from today's perspective) a special form of continued community of property . With her, the share of the spouse who dies first falls to the children of the conjugal community, so that the community of property is continued by the surviving spouse with the children. The surviving spouse - usually the wife - has administrative rights (hence: "widowhood"). If one did not want the continuation of the community of property with the children, continuation until 1958 had to be expressly excluded in the marriage contract. Since July 1, 1958, this rule-exception relationship has been reversed. Since then, the agreement of community of property automatically leads to simple community of property, in which the portion of the first deceased spouse falls into his estate and is inherited. The community of property as a purely contractual property regime has become rather rare today. You can find them mainly in southern Germany (Lake Constance area, Black Forest). The standard matrimonial property regime is now the statutory matrimonial property regime of the community of gains , which applies unless the spouses have agreed otherwise. In addition, the separation of property exists as a contractual property regime .
Reason
The property regime of community property is a notary notarized marriage contract agreed.
The different assets
What is peculiar to the community of property is that the married couple's assets are divided into up to five separate sets of assets. The common property is the property which the couple together for the entire hand due. In addition, each spouse has reserved property and special property.
As a result of the community of property, the property of the spouses becomes completely joint property of both spouses (common property). This also means that items that are intended exclusively for the personal use of a spouse, such as household items, jewelry and tools, become common property. Common property is both the property that the betrothed had before the marriage and the property that the spouse earned during the marriage. What the spouses gain through their work or through the independent operation of a commercial business thus also falls into the common property.
Reserved property are those items from the property of a spouse that are declared to be reserved property by marriage contract. Reserved property is also what is given to a spouse by death or between the living free of charge by a third party, if the testator has determined by will, the third party in the donation that the acquisition should be reserved property. What a spouse acquires as a substitute for the destruction, damage or removal of an object belonging to the reserved property (→ surrogation ) on the basis of a right belonging to his reserved property (especially material and legal fruits) or through a legal transaction that relates to the reserved property also applies his reserved property.
The items of a spouse that cannot be transferred by legal transaction ( highly personal rights , e.g. limited personal easements to which he is entitled ) count as special property .
Management of assets
The marriage contract should regulate how the common property is administered (by one of the two spouses or by both). If nothing is regulated, the spouses manage the common property jointly. Until 1953, the management of the property was the sole responsibility of the man.
The administration must be carried out properly. The managing spouse has to inform the other part and, if requested, provide information about the status of the administration. If the management of the common property is carried out by a spouse, the administrator has a right of possession with regard to the items belonging to the common property . The administrator has extensive power of disposal over the objects of the collective property. Exceptions apply, for example, to the disposal of the common property as a whole or properties that belong to the common property. The material power of disposal corresponds to the power to stand trial in legal disputes that relate to the common property. A power of representation for and against the other spouse that goes beyond the power of the keys is not granted to the administrator in matters of the common property either.
In contrast, each spouse manages their special property and property subject to retention of title independently. The management of the special goods takes place on account of the total goods, the management of the reserved goods on their own account.
Repeal
The community of property ends i. d. Usually through divorce or death, but can also be canceled through a marriage contract. After the termination, the spouses discuss the common property (Section 1471 (1) BGB), unless continued community of property has been agreed, the dispute also takes place with the heirs. If agreed, the community of property is continued with the joint descendants of the spouses (→ continued community of property ).
The agreements made within the framework of the marriage contract can generally only be asserted towards third parties after they have been entered in the property law register .
Austria
Austria knows the community of property as a contractual option (§ 1233 S. 2, §§ 1177 f. ABGB ).
Switzerland
According to the Swiss Civil Code , the community of property is a contractual property regime, i. H. the spouses must agree on it in a marriage contract. As in Germany, there are different categories of goods (estates): that of the spouse, that of the spouse and that which both belong together. Everything that is not excluded by the marriage contract becomes the common property of both spouses and, in the event of the dissolution of the community of property, is divided between them.
Other states
Belgium
Belgian law recognizes the community property ( fr. Communauté universal , NDL. Algehele gemeenschap van goederen ) as a contractual choice of marital property in different forms. A notarial marriage contract is required for their agreement.
Brazil
Brazil knows the community of property as comunhão universal de bens .
France
In France, since February 1, 1966 constitutes Community property ( communauté réduite aux acquêts ) the legal property regime (Art. 1400 to 1491 C.civ.). The French civil code recognizes other forms of the property regime with common property as contractual optional property regimes (Art. 1497–1526 CC), e.g. B. the community of property ( communauté universelle ), the community of exclusion ( communauté limitée ) and the former legal carriageway community ( communauté de meubles et acquêts ).
Guatemala
Guatemala also knows the community of property as a comunidad absoluta .
Netherlands
In the Netherlands the community of property ( gemeenschap van goederen ) is the statutory property regime . In a legislative process, a change towards a limited community of property is on the way (status 2007).
Poland
In Poland the community of acquisitions is the legal property regime. It covers all assets that are acquired by one spouse alone or jointly by both spouses during the duration of the statutory community of property (e.g. household appliances, pension entitlements). In contrast to the community of property under German law, the property already existing at the time of marriage is not recorded by the community of acquisitions.
Czech Republic
In the Czech Republic, the community of acquisitions is the statutory property regime.
Turkey
Turkish law knows the community of property in various ways as a contractual option (Articles 256–281 ZGB).
United States of America
In the United States nine states meet community property -regulations for the statutory property regime of the Community property . These are Arizona , California , Idaho , Louisiana , Nevada , New Mexico , Texas , Washington and Wisconsin . In some southern states, this American community of achievements was adopted from Mexican law (today sociedad conyugal, older sociedad de gananciales ). The community of property is unknown except in Louisiana.
References
- ↑ Overview of Belgian property and inheritance law from the Notarakademie Baden-Württemberg ( Memento of the original from September 29, 2007 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 25 kB)
- ↑ Overview of the law of property and inheritance of the Netherlands of the Notarakademie Baden-Württemberg ( Memento of the original from September 29, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 31 kB)
- ↑ Country report Netherlands 2004 - 2006 ( Memento of the original of September 28, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
literature
- Thomas Wittich: The community of property and its dispute. Luchterhand, Neuwied 2000. ISBN 3-472-03039-9
