Marriage is considered as culturally and legally recognized union. It also creates certain rights & liabilities on the spouses. It also has effect on property rights after marriage. We have already learned that capacity to enter marriage is checked through law of domicile/nationality while validity is checked through lex celebrationis.
1. Before 1880:
Husband acquired control over wife’s property. It did not matter whether she was owner of property before marriage or she inherited property after marriage.
2. Between 1880-1949:
Married women enjoyed same rights in respect of property as were enjoyed by their husband
3. In the common law jurisdictions property rights of spouses are unaffected by marriage. Each spouse retains the assets with which he or she entered into the marriage and possesses as separate property anything acquired during the course of the marriage
Applies in most Civil Law Countries & in some parts of United States like California & Louisiana
Under community property all property, movable and immovable, acquired during the marriage is a subject matter and the husband has wide powers of management over the property Community property is premised on the theory that marriage creates an economic community between the spouses
Under community property regimes, depending on the jurisdiction, property owned by one spouse before marriage, and gifts and inheritances received during marriage, are treated as that spouse’s separate property in the event of divorce. All other property acquired during the marriage is treated as community property and is subject to division between the spouses in the event of divorce. In some cases, separate property can be “transmuted” into community property, or be included in the marital estate for reasons of equity.
There is another form of community property which is community of gains which is applicable in Spain, parts of eastern Europe. In Community of gains, all property acquired during the marriage other than that acquired by gift or inheritance comes within the system and the husband has powers of management
Hague Convention on the law applicable to Matrimonial Property Rights 1978:
- This Convention determines the law applicable to matrimonial property regimes.
- 3 countries are contracting parties to this convention: France, Luxembourg, Netherlands.
- Article 3:
- Law applicable to matrimonial property rights would be the law chosen by the parties to the marriage, either expressly or by necessary implication but they can only choose the law of:
- a) any State of which either spouse is a national
- b) State in which either spouse has his habitual residence at the time of designation
- c) where one spouse establishes a new habitual residence after marriage.
- The law that is designated applies to the whole of their property
Position in INDIA
- In most of India, marriage doesn’t affect property rights.
- There has been no decision on of any Indian Court on any question relating to effect of marriage on property.
- French colony of Pondicherry: applied to those who retained French Nationality
- Portuguese Colony of Goa, Daman & Dui: applied to all persons, whatever their religion.
- There is no decision of Indian Court on any question related to effect of marriage on property. But if such a question comes before the court it may probably will apply law of domicile of parties and may also refer English Decision.