Community property

Community property (United States) also called Community of Property (South Africa) is a marital property regime that originated in civil law jurisdictions but is now also found in some common law jurisdictions.. Community of property regimes can be found in countries around the world including Sweden,[1] Germany,[2] Italy, [3] France, [4] South Africa[5] and parts of the United States.[6]

Under community property regimes, depending on the jurisdiction, property owned by one spouse before marriage (except for gifts or inheritances) is automatically owned by the other spouse (property gain), and will become that spouse's separate property, upon divorce (property subject to loss). All property that remain in the name of one spouse during marriage is automatically acquired by the other spouse as to 50% of its value (community property rights), subject to a loss of 50 % of all property upon divorce (separation of property).

Property owned by one spouse after the marriage is sometimes referred to as the "separate property" of that spouse. There are instances in which the community can gain an interest in inherited property and even situations in which gifts can be "transmuted" into community property.

Variations
Further information: Matrimonial regime
  • Community of Acquests and Gains: Each spouse owns an undivided half-interest in all property acquired during the marriage, except for property acquired by gift or inheritance during the marriage, which is separate property; or which traces to separate property acquired before the marriage, which remains separate property; or which is acquired during a period when the couple are permanently living separately and apart (e.g., legal separation, actual, or de facto), which is also separate property. This genre of community property is also called "ganancial community property." (Fr communauté réduite aux acquêts, Sp sociedad de gananciales, Du gemeenschap van aanwinst van goederen, gemeenschap van vruchten en inkomsten, Ger Errungenschaftsgemeinschaft, It comunione degli acquisti)
  • Community of Profit and Loss: similar to above but liabilities ("losses") are separate property. (Du gemeenschap van winst en verlies, Afrik gemeenskap van wins en verlies)
  • Community of Personal and Marital Property: Community property consists of all property, personalty and realty, acquired during the marriage; and all personalty acquired before the marriage. Realty acquired before marriage is separate property. (Fr communauté de meubles et acquêts, Du gemeenschap van inboedel, Ger Fahrnisgemeinschaft).
  • Limited Community Property: Similar to community of acquests and gains but certain marital property is separate property. (Fr communauté de biens limitée, Du beperkte gemeenschap van goederen, Swiss Ger Ausschlussgemeinschaft)
  • Universal or Absolute Community Property: All pre-marital and marital property is community property. However, if there are children from a prior marriage, the property associated with that marital community may be segregated from the community property of a subsequent marriage, to ensure the children of the prior spouse have an inheritance. (Fr communauté universelle, Sp comunidad absoluta de bienes, Du algehele gemeenschap van goederen, Ger allgemeine Gütergemeinschaft, It comunione universale dei beni)

Jurisdictions

Custom of Paris in New France

South Africa
Main article: Marriage in South Africa § Financial consequences

In South Africa, if a couple does not sign an antenuptial contract, before a notary public, which is subsequently registered at a deeds office, prior to marriage, they are married in community of property, which means that all of their assets and liabilities (even those acquired before the marriage) are merged into a joint estate during their marriage, in which each spouse has an undivided half-share. Each spouse has equal power to deal independently with the estate, except that certain major transactions require the consent of both spouses.[7] One of the consequences of community of property in South Africa is that if one spouse is declared insolvent (bankrupt) during the marriage, the other also becomes insolvent, a potentially devastating consequence.

United States
Main article: Community property in the United States
Map of the United States with community property states in red. Additionally, Alaska is an elective community property state, and of the five inhabited US territories, Puerto Rico and Guam are community property jurisdictions.

The United States has nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.[8] Alaska has also adopted a community property system, but it is optional. Spouses may create community property by entering into a community property agreement or by creating a community property trust.[9] In 2010, Tennessee adopted a law similar to Alaska's and allows residents and non-residents to opt into community property through a community property trust.[10] The commonwealth of Puerto Rico allows property to be owned as community property also[8] as do several Native American jurisdictions.

Division of community property may take place by item by splitting all items or by values. In some jurisdictions, such as California, a 50/50 division of community property is strictly mandated by statute[11] so the focus then shifts to whether particular items are to be classified as community or separate property. In other jurisdictions, such as Texas, a divorce court may decree an "equitable distribution" of community property, which may result in an unequal division of such. In non-community property states property may be divided by equitable distribution. Generally speaking, the property that each partner brings into the marriage or receives by gift, bequest or devise during marriage is called separate property (not community property). See division of property. Division of community debts may not be the same as division of community property. For example, in California, community property is required to be divided "equally" while community debt is required to be divided "equitably".[12]

Notes
  1. Morley, Jeremy. "Marrying a Swede? Or Swedish and Getting Married? Don't You Need a Prenuptial Agreement?".
  2. "Is there a statutory matrimonial property regime and if so, what does it provide? - Couples in Germany". www.coupleseurope.eu.
  3. "Is there a statutory matrimonial property regime and if so, what does it provide? - Couples in Italy". www.coupleseurope.eu.
  4. "Is there a statutory matrimonial property regime and if so, what does it provide? - Couples in France". www.coupleseurope.eu.
  5. "Marriage in Community of property - Family law".
  6. "Marital Property: Who Owns What?". Findlaw.
  7. "Marriage: the legal aspects" (PDF). Law Society of South Africa. 2011. Retrieved 2 February 2013.
  8. "Internal Revenue Manual – 25.18.1 Basic Principles of Community Property Law". www.irs.gov. Retrieved 2016-08-05.
  9. See Alaska Stat. §§ 34.77.020 – 34.77.995
  10. McDaniel, A. Stephen; Adams Jr, C. Michael. "Community Property Joint Revocable Trust" (PDF). Wyatt Tarrant & Combs.
  11. See California Family Code section 2550.
  12. See In re Marriage of Eastis, 47 Cal. App. 3d 459 (1975).

References
  • Gail Boreman-Bird. Cases and Materials on California Community Property, 10th edn. Revised by Jo Carrillo. St. Paul, Minn.: West Academic Publishing, 2011.
  • Jo Carrillo. Understanding California Community Property Law. New Providence, NJ: LexisNexis, 2015.
  • Jan P Charmatz & Harriet Spiller Daggett, eds. Comparative Studies in Community Property Law. Baton Rouge: Louisiana State University Press, 1955 (repr: Westport, Conn.: Greenwood Press, 1977).
  • Charlotte K. Goldberg. Examples & Explanations: California Community Property, 5th edn. NY: Wolters Kluwer, 2016.
  • Robert L. Mennell & Jo Carrillo. Community Property in a Nutshell, 3rd edn. St. Paul, Minn.: West Academic Publishing, 2014.
  • William A. Reppy, Jr. Community Property, 18th edn. Chicago: Thomson/BarBri Group, 2003.
  • William A. Reppy, Jr., Cynthia A. Samuel, & Sally Brown Richardson. Community Property in the United States, 8th edn. Durham, NC: Carolina Academic Press, 2015.
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