PRIVATE INTERNATIONAL LAW

RESEARCH PROJECT

ISSUES OF MARITAL PROPERTY RIGHTS IN CONFLICT OF LAWS:

COMMUNITY PROPERTY V. SEPARATE PROPERTY

Submitted by
P Vandana
200401417031
BALLB(Hons)
2021-26

Submitted to
Prof. Priyanka Sonowal

Alliance University
Alliance School of Law
 INTRODUCTION

The parties before marriage seldom think about the future when they have to change their
domicile and settle somewhere else where the legal system is very different from the place,
they currently reside in. After the change in domicile, there is another issue regarding the
property that they take with them and the property they leave behind. It becomes troublesome
to ascertain the parties’ marital property rights as different jurisdictions vary in their
principles of conflict if laws and characterization of issues. In this paper, two marital property
regimes are discussed – Community Property & Separate Property. In Community Property
regime, the property is jointly owned by both spouses, and they have equal and undivided
interest in the property. Both spouses have equal right to manage and control the property and
entitled to one-half of the property at the time of divorce regardless of who acquired it first.
On the other hand, Separate Property regime treats the property acquired by each spouse
individually and it only belongs to that spouse. There is separate management and control of
the separate property owned by the spouses and they have sole authority over their own. At
the time of divorce, this regime aims to protect the rights of the individual ownership of each
spouse.

When separate property is commingled with community property, that when the challenges
are seen in determining the rights of the parties. It becomes difficult to trace the original
separate property and individual identity is lost if it’s joined into the community fund. Hence,
this paper highlights issues arising between both regimes and aims to resolve such disputes
with fair rights given to both parties.
 LITERATURE REVIEW

Robert A. Leflar “Community Property and Conflict of Laws” (1933) 21(3) California
Law Review 221-238.
This article gives introduction on the trends of common law in separate property and its shift
from the old maxim where the husband’s domicile controlled the ownership of movable
properties. This article is divided into many sections talking about the matrimonial domicile
intended domicile and nuptial contracts impacting the marital property rights of the parties.
This article also distinguishes between the property rights of parties when property was
owned at the time of marriage and property acquired after marriage. It also discusses the
effect on property rights with the change of domicile and removal of property to another
state, which involves that challenges in conflict of laws between community property and
separate property states.

June Miller Weisberger, “Selected Conflict of Laws Issues in Wisconsin's New Marital
(Community) Property Act” (1987) 35(2) American Journal of Comparative Law 295-
306.
This article talks about State Wisconsin which became ninth Community Property State in the
United States of America. The married couples from other states with separate property
regime applied for divorce in Wisconsin because of it community property regime, to get
couple’s property divided equally. This led to various conflict issues within US. The article
also mentions the quasi-community property rights of the surviving spouse in Wisconsin at
the death of the spouse who owned the property. Other conflict issues such as out-of-state
property and the creditor’s claim over property was also discussed.

“Marital Property Rights and the Conflict of Laws” (1930) 43(8) Harvard Law Review
1286-1289.
This article talks about the conflict issues when there’s an absence of agreement between the
spouses who domiciled in many states. The law of situs governs the immovable property, and
the matrimonial domicile governs the movable property. The issues regarding matrimonial
domicile also arose since the wife must follow her husband’s domicile. A rule for
convenience of the parties was suggested to resolve it.
“Conflict of Laws: Effect of Parties' Request That Law of Situs Be Applied to
Disposition of Marital Property” (1966) 60(4) Columbia Law Review 970-979.
The article talks about the court’s diversion from the well-established principles to
accommodate new principles to solve the issues before it. The diversion is caused to secure
the position of those individuals who would suffer if the general principles were followed.
This article talks about many such cases where the New York Court applies its own rules
concerning the property of foreign spouses. It has received dissenting opinion from various
judges when the court of law departs from settled principles in conflict of laws. It leads to
creation of new choice of law rules, and it makes it difficult for other states to characterize
issues properly and further complications in determining rights of the parties.

Michael Davie, “Matrimonial Property in English and American Conflict of Laws”

(1993) 42(4) The International and Comparative Law Quarterly 855-881.
This article talks about diversity of various legal systems of the world and their stands on the
marital property rights, especially in English and American laws. In Common law
jurisdictions, property rights of spouses are unaffected by marriage and remain their separate
property. Civil law jurisdictions follow the system of community property where marriage
creates a common fund of each spouse. There are also other variations where only property
acquired after marriage is community property and rest remains separate. The laws have
overtime become more flexible to ascertain rights of the parties better. Laws are forming a
mid-way positions to cater to interests of both parties.

Georges Rene Delaume, “Marital Property and American-French Conflict of Laws”

(1955) 4(1) American Journal of Comparative Law 35-59.
This article is a comparison of conflict of laws issues between France and United States.
Though these countries have similar backgrounds, they have very different approach to
answering conflict of laws questions with their distinctive thinking. Both being community
property countries characterize issues of marital property differently. Under French law, from
the inception of the marriage and to its end, its governed by a single law which is majorly
different from the American law. Antenuptial agreements are more frequent in France than
US. Sometimes, the states in the US recognise the separate property rights of the party which
conflicts with the community property rights given by France. The US provides different
rights when there’s a change of situs is involved in property, but the France is unaltered by it.
Friedrich K. Juenger, “Marital Property and the Conflict of Laws: A Tale of Two
Countries” (1981) 81(5) Columbia Law Review 1061-1079.
This article is another comparison of the marital property rights between France and United
States. In some cases, the French law has effect on property that have situs outside its
territory and party’s domicile. The French law retains certain flexibility considering the
party’s autonomy over the property who expressed ‘tacit intent’. The American states find
themselves amidst the North-South rift as many states have inherited their laws from
England. Disputes between civil and common law states are frequent in United States. In
some cases, the ‘tacit agreement’ between parties is considered fiction, laws of new domicile
are preferred.

George Wilfred Stumberg, “Marital Property and the Conflict of Laws” (1932) 11(1)
Texas Law Review 53-66.
This article talks about the history of the Unites States in terms of its shift from common law
to community property law. It also talks about separate regimes in US governing the status of
marital property. Usually, the domicile or the law of the situs decides the solutions to the
issues of the marital property. If further conflict arises then on the basis of convenience the
disputes are solved. The property can either be considered community property or separate
property depending on the individual state laws of the US. This article also analyses various
state positions on marital property through many cases.
 RESEARCH PROBLEM

Many legal issues arise when spouses reside in one jurisdiction and their property is located
in another, concerning different legal systems. The conflicts between separate property
regimes and community property regimes are ongoing to determine which country’s law
would be followed to ascertain marital property rights. There’s a need to form clear legal
framework to avoid such conflicts.

RESEARCH OBJECTIVES

 To discuss the issues arising in marital property rights when two different regimes are
involved.
 To suggest possible solutions to the arising issues between such regimes.

RESEARCH QUESTIONS

 What are the issues that arise between community and separate property regime when
dealing with marital property rights?
 How can the issues between community and separate property regime be solved?

SCOPE & METHODOLOGY

The issues arising in the US and conflict between US and few of the European countries will
be discussed in this paper. This paper uses the methodology of doctrinal research. It has taken
help from secondary sources like journal articles, reports, and other e-resources to do the
research.
 CONCEPTS OF COMMUNITY AND SEPARATE PROPERTY

The community property regime in the United States has its origin from the Spanish and
French that ruled over some states i.e. California 1, Texas, Nevada, Arizona etc. Earlier the
laws were based on the principles of the civil law, but later community property regime was
recognized as a suitable regime. Community property as explained before, is a regime where
assets acquired during marriage becomes common property for both the spouses. They have
the same rights to that property regardless of who acquired it. The community property
regime in the US gradually evolved through various case laws and legislations. Though the
regime is the same, through interpretation of courts in various states, the principle of adoption
is different for each context. Some have applied the regime in limited context while others
have done full adoption of the same. States like Wisconsin has partial adoption of separate
property principles though it's a community property state. Though efforts are made for the
stability and consistency in the laws and to resolve disputes as quick as possible, the conflicts
still arise as states are adamant in changing their laws.

Though there are some states that follow the community property regime in United States,
majority of them follow the separate property regime. In this property acquired before
marriage as well as property acquired after marriage is the separate property of spouses. Even
they have a title of the property on just their name, then it remains their own property even
though it was acquired after marriage. The separate property has its origin from the English
roots where common law is practised. It was later adopted in the legal framework of the US
and gave individual rights to people who wanted to control and retain their property as they
earned it through their hard work. It gives people protection to safeguard their properties
from eventual division in divorce. The separate property regime has a principle of equitable
distribution in rare cases where the court feels that the other spouse needs to have some share
for survival basis and especially when there are children involved, the court is more
sympathetic. The spouses can get into pre-nuptial agreements to decide who will have
ownership over what. In the absence of an agreement, the court generally adopts community
property regime as it’s presumed that the spouses intended to jointly acquire their property.

1
Susan Westerberg Prager, The Persistence of Separate Property Concepts in California's Community Property
System, 1849-1975, 24 UCLA L. REV. 1 (1976).
This presumption can be rebutted if sufficient proof is shown that the ownership solely
belongs to one spouse and by checking the source of funds on that asset, it can be traced
which spouse bought the property and overlooked it.

ISSUES BETWEEN TWO REGIMES IN THE US

The issues in the United States can be difficult to resolve as the conflict arises between
community and separate property states. The joint account concept clashes with the
individuality offered in the separate property regime. The main issues arise in the division of
property when equal distribution conflicts with equitable distribution. This problem’s
difficulty only increases when properties are situated in different jurisdictions. Usually, the
law of matrimonial domicile or the law of situs governs the matrimonial property disputes.

In case of Snyder v. Stringer2, an automobile had been purchased with that had been earned in
Iowa and Montana, non-community states. The Supreme Court of Washington while
applying the domiciliary rule held that the property so acquired was community because at
the time the parties domicile was in Washington which was a community property state.
While in the case of Smith v. McAtee3, The proceeds of reality was devised to the wife, to pay
the debts of the husband, the proceeds were at the time in Maryland, and the wife was
domiciled in Illinois. “Under the law of Illinois the proceeds would become the property of
the husband, but in Maryland it was, according to the court, "protected from the debts of the
husband, and not in any way liable for the payment thereof” 4. It was held that the funds was
immune from the husband’s creditors and the wife had the right for sole use.

In Pearl v. Hansbrough5, A father gave slaves to her daughter, who was also a wife. The gift
was given in Tennessee were the slaves also remained. The domicil of the wife was
Mississippi The Tennessee court held that title vested in the wife will be in accordance with
Mississippi which was her matrimonial domicile and not Tennessee law which was situs law.
In Graham v. The First National Bank6, the wife was domiciled with her husband in
2
116 Wash. 131, 198 Pac. 733 (1921).
3
27 Md. 420, 92 Am.Dec. 641 (1867).
4
George Wilfred Stumberg, Marital Property and the Conflict of Laws , 11 TEX. L. REV. 53 (1932).
5
9 Humph. 426 (Tenn. 1848).
6
84 N.Y. 393, 38 Am.Rep. 528 (1881).
Maryland, and owned the shares of stock in a Virginia bank. Dividends on this stock were
paid to the husband, who under Virginia law, but in Maryland the wife was the owner of the
stock. It was held that the husband was not liable.

ISSUES BETWEEN US AND EUROPEAN COUNTRIES

The separate legal systems of both countries lead to many conflicts arising between these
countries. European countries have a more uniform laws than United States and tend to avoid
disputes among themselves. But when they are in conflict with United States, where the
States have varying laws on separate and community property which conflicts with the civil
law regime which is more uniform in European countries. The resolution depends on
jurisdictions, international treaties, agreements prior to the marriage, and different legal
principles.

In case of re James’ Will 7, the Louisiana law was held applicable which was the law of
matrimonial domicile. The wife’s husband was deceased, and the court had to decide the
rights of the American widow. Some of the movable properties was moved to France which
changed the situs of the property. The Court held that change in law of situs doesn’t impact
statues of properties. The law of matrimonial domicile was held to be the one governing the
assets. In case of Major's Estate." A marriage had been celebrated in France and no pre-
nuptial agreement had been made. Subsequently, the husband acquired an immovable
property in New York, and upon his death, his wife claimed one half of the immovable as
community property as per French law of the matrimonial domicil. Her claim was dismissed
because, as under the New York law of the situs, the immovable was the separate property of
the deceased husband8.

7
221 N.Y. 242, 116 N.E. 1010 (1917)
8
Georges Rene Delaume, Marital Property and American-French Conflict of Laws, 4 AM. J. COMP. L. 35
(1955).
 SOLUTIONS TO THE ISSUES

Choice of Law Agreement:

The spouses can get into choice of law agreements before marriage which is called the pre-
nuptial agreements or during marriage called postnuptial agreement and trying to choose
what law they want to be governed by. They can predict conflicts in advance be prepared to
solve disputes arising in the future. The provisions of the agreement can govern the division
of property in terms of divorce and other jurisdictions disputes.

Equitable Distribution:
If couples have lived in both community property and separate property jurisdictions, courts
may apply principles of equitable distribution to avoid one party benefitting over the other
and provide fair distribution. It takes into consideration many circumstances, such as the
duration of the marriage, contribution of each spouse and the economic status of parties, etc
to find the best solution to the conflicts.

Mediation or Arbitration:
Couples can choose to resolve their disputes by alternative dispute resolution methods such
as mediation or arbitration outside of court. A neutral mediator or arbitrator can help facilitate
negotiations and assist the parties in reaching a mutually acceptable agreement on the
division of assets, deal with the complexities of community and separate property regimes.
While opting for these parties should actively try to solve their disputes without prolonging
too much time in conflict solving. The issues must be solved fairly and justly so that the
parties will not go to court after being wholly disappointed from the process.

Property Division:
In some cases, it may be allowed to divide marital assets according to their respective legal
regimes like if it’s acquired in French, French law will be governing the property and if it’s
acquired in United States than US law will be applicable. Spouses could agree to maintain
separate bank accounts or have a joint account for investments and other accounts picking out
and segregating assets acquired in community property and separate property states. This will
aid in limiting conflicts to maximum extent.
Balance of Convenience:
Parties should decide matter based on how both of them get advantage. This principal aids in
bringing parties to a point of cooperation and helping them sort out issues not in a way which
just benefits one party mostly like just choosing to follow separate property regime. Even
community property regime should not be assumed to be followed. Parties should get to
choose what is best for both of them.

Carrera v. Carrera9, In this case, the U.S. Court considered the case for the division of marital
property in a divorce between spouses who had properties both in United States and France.
The couple had lived in both jurisdictions during their marriage, and significant marital assets
were located in both countries. The conflict was between civil law of France and community
property regime of California, United States. The Court held that French law governed the
division of property acquired in France, while California law governed property acquired in
California. The court respecting the laws of comity tried to resolve conflict applying both the
laws of the countries and reaching a fair decision even though both countries had different
legal systems.

Sommers v. Sommers10 In this case, a U.S. court addressed the enforceability of a prenuptial
agreement signed in England. The court allowed for the validity of the agreement under both
English and U.S. law and enforced the agreement following it terms and avoiding future
conflicts between England and United States. This case is a great example of importance of
prior contracts in marriage to decide the proper division of properties without disappointing
any of the parties. Prior agreements help solve disputes quicker and avoid unnecessary delay
of time.

9
128 F.3d 132 (2d Cir. 1997)
10
(1975)
 CONCLUSION

This paper discussed the issues arising in the United States where States had varying laws in
community and separate property states. The joint account concept clashing with the
individuality offered in the separate property regime. In some cases, community property
regime is preferred and in other cases separate property protect the rights of the individuals.
Especially in the case where the debt of a spouse is considered where the proceeds one
spouse won’t transfer to other and protects them from their property being taken away simply
because of debt of another spouse. This paper has also discussed the issues arising between
United States and European countries where the separate legal systems of both countries lead
to many conflicts. European countries have a more uniform laws than United States and tend
to avoid disputes among themselves but United States on the hand has varying laws even
following the same regime. The solutions of choice of law agreements, equitable distribution,
arbitration, etc is a great way of solving disputes which could arise in the future.

REFERENCES

Georges Rene Delaume, Marital Property and American French Conflict of Laws, 4 AM. J.
COMP. L. 35 (1955).
Robert A. Leflar, Community Property and Conflict of Laws, 21 CALIF. L. REV. 221
(1933).
June Miller Weisberger, Selected Conflict of Laws Issues in Wisconsin's New Marital
(Community) Property Act, 35 AM. J. COMP. L. 295 (1987).
Conflict of Laws: Effect of Parties' Request That Law of Situs Be Applied to Disposition of
Marital Property, COL. L. REV. 66 (1966)
Michael Davie, Matrimonial Property in English and American Conflict of Laws, 42 INT. &
COM. L. Q. 4 (1993)
George Wilfred Stumberg, Marital Property and the Conflict of Laws, 11 TEX. L. REV. 53
(1932).
Friedrich K. Juenger, Marital Property and the Conflict of Laws: A Tale of Two Countries,
81COL. L. R. 5 (1981)
“Marital Property Rights and the Conflict of Laws” 42 Har. L. R. 8 (1930)
Susan Westerberg Prager, The Persistence of Separate Property Concepts in California's
Community Property System, 1849-1975, 24 UCLA L. REV. 1 (1976)