16
Matrimonial property relations

In any system of law, including English law, it may be possible for spouses to regulate their rights in their property by agreement or settlement. In other countries, but not in England where for over a century there has been, in the absence of such agreement, complete separation of the husband's and wife's property, matrimonial property regimes may be imposed by law or the law may imply an agreement between the parties. There may, for example, be full community of property, where all property is held jointly in undivided shares, or community of property acquired by the parties during marriage. Other laws may impose 'deferred' community of property, by which each is entitled to a certain share in the other spouse's property, but this share can only be claimed on termination of the marriage by death or divorce.

It is essential, though it may be difficult, to distinguish between rules concerning matrimonial property and those which are rules of succession.1 'Deferred' community rules are similar in effect to rules of law which are of the kind which were known to Roman law as legitima portio. Matrimonial property rules say in effect that half the husband's property was the wife's from the inception of the marriage, but that the wife cannot take her half until the marriage ends; succession rules say that if the husband leaves all his property to someone other than his widow, she can claim part thereof and his will is invalid to the extent of that part of the estate.2


Regimes existing by virtue of a contract or settlement

The governing law

Such contract or settlement is, like any other contract, governed by its proper law. The Rome Convention, 1980, does not apply to 'contractual

____________________
1
This is a very difficult question of characterisation, and is exemplified by the Maltese Marriage case, decided by a French court at Algiers: Anton v. Bartolo (1891) Clunet 1171.
2
As in the law of the Republic of Ireland: Succession Act 1965. The determination of this question may affect assessment to tax. The problem may not arise, however, if the doctrine of mutability (see pp. 282–4 below) is adopted by the English courts.

-277-

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Conflict of Laws
Table of contents

Table of contents

  • Title Page *
  • Contents v
  • Preface to the Third Edition vii
  • Table of Statutes viii
  • Table of Cases xxiv
  • Part I - General Principles 1
  • 1 - Introduction 3
  • 2 - Characteristics of the English 8
  • 3 - Choice of Law Rules 11
  • 4 - Proof of Foreign Law 33
  • 5 - Domicile and Residence 37
  • 6 - Substance and Procedure 60
  • Part II - Jurisdiction and Foreign Judgments 69
  • 7 - Jurisdiction of the English Courts 71
  • 8 - Staying of English Actions and Restraint of Foreign Proceedings 84
  • 9 - Foreign Judgments 109
  • 10 - Jurisdiction and Judgments in the European Union and Efta 131
  • 11 - Arbitration 179
  • Part III - Law of Obligations 187
  • 12 - Contract 189
  • 13 - Tort 220
  • Part IV - Property and Succession 241
  • 14 - Property Inter Vivos 243
  • 15 - Succession 268
  • 16 - Matrimonial Property Relations 277
  • 17 - Trusts 286
  • Part V - Family Law 293
  • 18 - Marriage 295
  • 19 - Matrimonial Causes 319
  • 20 - Children 334
  • Part VI - Exclusion of Foreign Laws 359
  • 21 - Public Policy 361
  • Part VII - Theoretical Considerations 375
  • 22 - Reasons for and Basis of the Conflict of Laws 377
  • 23 - Public International Law and the Conflict of Laws 386
  • Index 395
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