Matrimonial Regimes

Louisiana Matrimonial Regimes is designed to explore the features of the community property regime, often lauded as one of the most beautiful and significant achievements of the civil law tradition. The community property regime is widely accepted as the marital property regime of choice for an astonishing number of countries, including France, Germany, Spain, Brazil, and countless others. Even on American soil, where the common law tradition has generally been favored over that of the civil law, the community regime has gained significant sway. Nine of our states have rejected the English-inspired marital property regime in favor of the community. This book invites the reader to study the details of Louisiana's regime of patrimonial rights and duties between husband and wife, and also to consider comparisons with the matrimonial regimes of other civilian and Anglo-American systems. Andrea Beauchamp Carroll is the Donna W. Lee Professor of Family Law at the Louisiana State University Paul M. Hebert Law Center. Before joining the LSU Law faculty, Professor Carroll clerked for The Honorable W. Eugene Davis of the United States Court of Appeals for the Fifth Circuit. She subsequently worked as an associate at the Dallas law firm of Baker Botts, L.L.P., handling appellate litigation. In 2003, Professor Carroll returned home to LSU Law, where she has been teaching and writing about family law, community property, and property for the last eleven years. Professor Carroll is the author of more than a dozen books and articles in her field, and has recently been published in the Indiana, Tulane, Brooklyn, and Cardozo law reviews. Her Tulane article on civil law property was honored at the 2005 Stanford-Yale Junior Faculty Forum. Professor Carroll is also active in law reform in Louisiana, as a Member of the Council of the Louisiana State Law Institute and the Institute's Persons, Children's Code, and Adult Guardianship Committees. She led the comprehensive revision of Louisiana's community property law in the area of reimbursement rights in 2009, the first substantial revision of Louisiana's community property rules since 1979. And she led a successful reform of Louisiana's child relocation rules in 2010. As Reporter of the Law Institute's Marriage and Persons Committee, Professor Carroll continues to work to improve the law related to marriage and the family. Professor Elizabeth R. Carter is the Judge Anthony J. Graphia & Jo Ann Graphia Associate Professor of Law at the LSU Law Center, where she teaches and writes in the areas of matrimonial regimes, estates, trusts, and taxation. A graduate of Tulane University Law School and member of the Order of the Coif, Professor Carter graduated with the highest grade point average in the civil law curriculum and served as the research assistant to Professor A.N. Yiannopoulos. Her comment on Louisiana Civil Code article 466, published in Volume 80 of the Tulane Law Review, received the Dean Rufus C. Harris Award for the Best Writing on a Civil Law Subject. Professor Carter earned an LL.M. in Taxation from the University of Alabama. She also has degrees in biology and Spanish from the University of Memphis. She serves on several Louisiana State Law Institute committees and maintains a private estate-planning practice. She has two dogs and a husband, in that order.

Louisiana Matrimonial Regimes is designed to explore the features of the community property regime, often lauded as one of the most beautiful and significant achievements of the civil law tradition. The community property regime is widely accepted as the marital property regime of choice for an astonishing number of countries, including France, Germany, Spain, Brazil, and countless others. Even on American soil, where the common law tradition has generally been favored over that of the civil law, the community regime has gained significant sway. Nine of our states have rejected the English-inspired marital property regime in favor of the community. This book invites the reader to study the details of Louisiana's regime of patrimonial rights and duties between husband and wife, and also to consider comparisons with the matrimonial regimes of other civilian and Anglo-American systems. About the authors: Katherine Shaw Spaht is the Jules F. and Frances L. Landry Professor of Law (Emeritus) and former Vice Chancellor (1990-1992) at Louisiana State University's Paul M. Hebert Law Center. Since 1972, she has taught courses in the areas of family law and marital property law. In addition to overseeing the revision of Louisiana's community property law in 1978 and drafting Louisiana's covenant marriage legislation in 1997, she has worked with the Louisiana legislature on such varied topics as needs of women, rights of illegitimate children, "assisted conception," child support, no-fault divorce, and same-sex marriage. She has been the Reporter of the Louisiana State Law Institute's "Persons & Family Law" Committee since 1981 and also serves on the American Law Institute's Committee on the Principles of the Law of Family Dissolution. Through the years she has produced a significant corpus of publications pertaining to family and marital property law, including a treatise on Louisiana marital property law (co-authored with Lee Hargrave), which forms part of the Louisiana Civil Law Treatise Series, and most recently, Who's Your Momma, Who Are Your Daddies? Louisiana's New Law of Filiation, 67 LA. L. REV. 307 (2007). Andrea Beauchamp Carroll is the C.E. Laborde, Jr. Professor of Law at Louisiana State University's Paul M. Hebert Law Center. Before joining the LSU Law Center faculty in 2003, Professor Carroll earned a B.S. in Finance from LSU, where she graduated magna cum laude, and a J.D. from the LSU Law Center, where she was a member of the Louisiana Law Review and the Order of the Coif. After earning her law degree, Professor Carroll worked as an associate in the Appellate Section at the law firm of Baker Botts in Dallas, Texas, and clerked for The Honorable W. Eugene Davis of the United States Court of Appeals for the Fifth Circuit. Professor Carroll teaches and writes about the civil law, both in the context of substantive areas such as property and community property, and in the broader context of its interaction with common law systems. She has published a number of scholarly works on family law and community property, including, most recently, Incentivizing Divorce, 20 CARDOZO L. REV. 1925 (2009) and The Superior Position of the Creditor in the Community Property Regime: Has the Community Become a Mere Creditor Collection Device?, 47 SANTA CLARA L. REV. 1 (2007). Professor Carroll also led Louisiana's 2009 legislative reform on reimbursement in the community property context.

This book has the prime purpose of analysing practice through European and national case law from the entry into force of the Twin Regulations, adding hypothetical cases in some of the countries participating in enhanced cooperation that do not yet provide for the direct application of the Regulations, and resolving them by basing judgments on private international law. Th e European family today is diverse, and proof of this is the diff erent models and their evolution in recent decades, with family relationships being based not only on those constituted by marriage but also on those formed by couples living together in a stable manner.

The optional matrimonial property regime of the community of accrued gains was created to address legal difficulties that may arise from marriages between persons of different nationalities or persons not living in their country of origin. It is the result of a treaty between France and Germany that entered into force in 2013. As this regime approaches cross-border conflicts using substantive legal rules, it has a unique character and is considered to be the first step towards the harmonization of European family law. This regime is of interest beyond the borders of France and Germany because other Member States of the EU can accede to the treaty. Further, the optional matrimonial property regime is open not only to marriages between French and German nationals, but also to French or German couples living abroad, or foreign couples living in France or Germany. To make the Franco-German treaty more accessible to lawyers, this book contains the optional matrimonial property regime in five languages, namely German and French - the official languages - and English, Italian, and Spanish. Each article of the optional matrimonial property regime is accompanied by a short commentary. Moreover, to provide the reader with additional background information, translations of the memoranda and explanatory reports are also included.

The provisions of art. 312 of the Civil Code establish: a legal system that is the community property regime and two conventional regimes: separation of property regime and the regime of conventional community (the latter includes conventional exemptions from the community property regime). The legal matrimonial regime includes property acquired by both spouses during marriage, except for the goods provided by law, which are each spouse's own assets. The legal community regime will apply in all situations in which prospective spouses do not opt for the separation of property regime or for the conventional community regime. Separation of property regime is characterized in that each of the spouses is the exclusive owner of their property and of that they acquire by themselves after the marriage, at the adoption of this regime spouses are required to draw up an inventory of movable property belonging to each one at the date of the contracting of marriage. The Conventional community regime is applicable when by matrimonial agreement, they derogate from the provisions on the legal community regime, and the matrimonial convention concluded in this case may narrow or widen the community.