The New Community of Acquets and Gains in Louisiana

COMMENTS
COMMENTAIRES

The New Community of Acquets and Gains in Louisiana

Introduction

After years of study and debate, the Louisiana Legislature has
modified Title VI of Book III of the Louisiana Civil Code, 1870,
which treats of matrimonial regimes.1 As of January 1, 1980, the
property rights of all married persons domiciled in the state became
subject to the rules governing the legal regime, the community of
acquets and gains, unless a couple had entered into an express matri-
monial agreement to the contrary.2 Even those couples who have
contractually avoided the legal regime will inevitably be affected
by the philosophical changes announced in the new law.

The need for modernization of Louisiana community property
law was seriously discussed as early as the nineteen thirties,8
1 La Civ. Code, arts 2325-2376 (1870), as am. by La Acts 1979, No. 709, 1.

In the main, this reform was contained in La Acts 1978, No. 627, 1,
which would have come into force on Jan. 1, 1980, with the exception of
certain provisions, which would have been effective either in late 1979 or
at a later date (La Acts 1978, No. 627, 9). In the interim, equal management
was to be studied and additional legislation proposed. As a result of study
and debate, the Act was modified in certain particulars and became La
Acts 1979, No. 709. See Spaht, Interim Study Year (1979) 39 La L. Rev. 551.
Additional laws modifying areas affected by the reform are the following:
La Acts 1979, No. 710
(Successions-Marital Portion), amending La Civ.
Code, arts 2432-2437; La Acts 1979, No. 711
(Matrimonial Regimes-Equal
Management), repealing or modifying a number of articles of the Civil Code
to conform with the new codal provisions. See generally, Spaht & Sarriuel,
Equal Management Revisited: 1979 Legislative Modifications of the 1978
Matrimonial Regimes Law (1979) 40 La L. Rev. 83.
2 Those couples married under the prior legal regime had from Aug. 1,
1979 until Jan. 1, 1980 to execute a matrimonial agreement pre-empting
the new legal regime (La Acts 1979, No. 709, 10, 13); see infra, note 30,
and accompanying text).

Couples living under a regime of separation of property will continue

to do so under the new regime (La Acts 1979, No. 709, 11).

For a discussion of spouses married under a conventional community
regime, see infra, note 74, and accompanying text. For a discussion of
couples moving into the state, see infra, note 28, and accompanying text.

3 See Daggett, Is Joint Control of Community Property Possible? (1936) 10
Tul. L. Rev. 589; Daggett, The Modern Problem of the Nature of the Wife’s
Interest in Community Property –
19 Cal.
L. Rev. 567.

A Comparative Study (1931)

19811

COMMENTS – COMMENTAIRES

and the Legislature has, over the years, adopted, stop-gap measures
to bring Louisiana women into the twentieth century.4 Nevertheless,
on the eve of the reform, the legal regime bore a striking resemb-
lance to the model of French and Spanish inspiration contained in
the Digest of Civil Laws, 1808.1 Certain things acquired by the
spouses during marriage were classified as community assets and
were controlled by the husband as “head and master”Y During the

4A series of laws, beginning in 1912, led to the requirement that the wife’s
consent be obtained to mortgage, lease or sell community property when
her name appeared in the title (La Civ. Code, art. 2334 (1870) passim). After
1921, the wife was able to file a declaration requiring her consent to the
mortgage or sale of the family home (La Acts 1921, Ex. Sess., No. 35, codified
in 9:2801, 9:2802 and 9:2804 (Supp. 1976)). In 1970, the Code of Civil Pro-
cedure was amended to give the wife the exclusive right to sue for her
earnings (La Acts 1970, No. 344, 1, amending La Code Civ. P., art. 686, am.
and re-enacted by La Acts 1979, No. 711-83). In 1975, the wife was given ‘the
power to obligate her earnings for debts she had incurred before or during
the marriage (La Act, 1975, No. 705, 1, adding La R.S., 9:3581-85 (Louisiana
Equal Credit Opportunity Law) (Supp. 1977), repealed in part by La Acts
1979, No. 709, 3).

5 There is much debate as to the origin of the Louisiana community pro-
perty system. Those who support the thesis that the heritage is French,
maintain that the French customary law, the Custom of Paris, remained in
practice in the country outside of New Orleans during the Spanish period
from 1769 to 1803, and was at ‘least a significant influence in Louis Moreau
Lislet and James Brown’s Digest (Civil Code), 1808. They reinforce this argu-
ment with the study of the similarity of the Projet of the 1808 Digest and
the Projet of the French Civil Code, 1804. See Baade, Marriage Contracts
in’ French and Spanish Louisiana: A Study in “Notarial” Jurisprudence
(1978)
53 Tul. LU. Rev. 3, 79 -et seq.; Batiza, Sources of the Civil Code of
1808, Facts and Speculation: A Rejoinder’ (1972) 46 Tul. L. Rev. 628; Sweeney,
Tournament of Scholars Over the Sources of the Civil Code of 1808 (1972)
46 Tul. L. Rev. 585; Batiza, The Louisiana Civil Code of 1808: Its Actual
Sources and Present Relevance (1971) 46 Tul. L. Rev. 4.

Those who support the argument of predominantly Spanish influence
point to the adoption of the Castilian ganancial community as the legal
regime, instead of the French community of movables and acquests of the
Custom of Paris and the French Civil Code (Pascal, Matrimonial Regimes
(1976) 36 La L. Rev. 409, 410; Pugh, The Spanish Community of Gains in 1803:
Sociedad de Gananciales (1969) 30 La L. Rev. 1). See Pascal, Sources of The
Digest of 1808: A Reply to Professor Batiza (1972) 46 Tul. L. Rev. 603. But
see Baade, supra, 87 et seq., who maintains that there are similarities between
the Louisiana regime of 1808 and the Communautj rdduite aux acquits of the
French Civil Code, 1804.

The Digest of Civil Laws, 1808 was followed by the Civil Code, 1825
and the Revised Code, 1870. It is significant that almost 50% of the pro-
visions of the Digest, 1808 still survive in the Revised Code, 1870 (Batiza,
The Actual Sources of the Louisiana Projet of 1823: A General Analytical
Survey (1972)’ 47 Tul. L. Rev. 1).
0 As an exception to the rule of complete control by the husband, the
wife was allowed to obligate the community for “necessaries” Which the

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marriage, the community assets and liabilities were treated as the
husband’s patrimony. Thus, the husband could alienate community
assets, in most cases without the consent of the wife, and his
creditors could enforce their rights against the community. The
wife’s patrimony during marriage consisted of her separate assets,
over which she only recently gained full control.7 Upon termination
of the regime, the wife, or her heirs, could take half of the com-
munity assets and accept half of the liabilities, or the wife, or her
heirs, could renounce her share of both the assets and the liabilities.
Alternatively, the wife, but not her heirs, could accept half the
community under benefit of inventory.8

The great impetus for comprehensive reform in this area came
from the growing influence of the women’s movement in the United
States, especially as reflected in the Equal Rights Amendment” and
in recent United States Supreme Court decisions limiting possible
statutory discrimination on the basis of sex.10 Ultimately, the fear
that the “head and master” provision of the Louisiana Civil Code1′

husband had not provided. Jurisprudence granted this measure of control,
citing La Civ. Code, art. 1786 (1870): General Tire Service v. Nash 273 So.
2d 539 (La App. 1st Cir. 1973). Commentators prefer basing such authority
upon arts 119-120 concerning the husband’s obligation of support, or arts
2985-3034 setting forth the principles of mandate (Riley, “Contracts and
Responsibilities of Husband and Wife in Louisiana Law” in Dainow, Essays on
the Civil Law of Obligations (1969)).

7See supra, note 4.

Although La Civ. Code, art. 2384 (1870) passim, granted to the wife the
right to administer her separate property, art. 2385 passim, and interpretative
jurisprudence has presumed that the husband was the administrator until
the wife’s filing of a notarial act reserving the administration to herself. See,
e.g., American Indemnity Co. v. Leon Godchaux Clothing Co. Ltd 294 So. 2d
623 (La App. 4th Cir. 1974); Riley, A Revision of the Property Law of
Marriage – Why Now? (1973) 21 La B.J. 29, 35.

8 See Pascal, Louisiana’s 1978 Matrimonial Regimes Legislation (1978) 53 Tul.

L. Rev. 105, 108-9.

9H.RJ. Res. 208, 92d Cong., 1st Sess. (1971); S.J. Res. 8, 92d Cong., 1st
Sess. (1971). The Equal Rights Amendment was rejected by the Louisiana
Legislature during the 1978 session.

l Reed v. Reed 404 U.S. 71 (1971). See Spaht, Background of Matrimonial
Regimes Revision (1979) 39 La L. Rev. 323, 324 et seq.; Tyler, Matrimonial
Regime Reform – A Constitutional Necessity (1978) 38 La L. Rev. 642. But
see Pascal, Revision of the Community of Gains (La State Law Inst. Papers,
1974).

t1 La Civ. Code, art. 2404 (1870) passim.

This was not the only article which could have been attacked as a viola.
tion of the equal protection and due process clauses of the Fourteenth
Amendment to the United States Constitution and Art. I, 3 of the Louisiana
Constitution of 1974. See, e.g., La Civ. Code, arts 36, 37, 39, 92, 126, 127, 128,
129, 130, 132, 133, 134, 142, 146, 155, 166, 218, 253, 256, 298, 301, 309, 731,

1981]

COMMENTS – COMMENTAIRES

would be declared unconstitutional was probably the compelling
factor in the adoption of the present law.12

It is not surprising that the purpose of matrimonial reform, as
stated by the Reporter of the Louisiana State Law Institute, the
organism created by the Legislature to supervise the Civil Code
revision, was “the recognition of the fullest equality of spouses
possible”.1 And in this respect the new law represents a significant
break with the past, both codified and practised. It deposes the
husband as “head and master” of the community, adopting the
principle of equal management of the community by both spouses.14
It also permits the spouses to modify contractually the regime
chosen at the time of marriage, thus ending the prohibition of
contracts between husband and wife. 5

Predictably, the thrust of the criticism of the reform is that it
unjustifiably reduces the powers of the husband.16 This is an over-
simplification of the effects of the law, however, for in adopting a
concept of equality of ownership and control of the community,
certain measures of protection for the wife have been abandoned. 17
The result is a reclassification of separate and community property
which, in its equality, is certainly more favourable to the husband
than the previous regime.”8 In addition, there has been a realloca-

1005, 1480, 1545, 1555, 2397, 2398, 2436 (1870); Riley, Proposed Amendments
Concerning Discriminatory Laws Based on Sex (La State Law Inst. Papers,
1974).

12 In 1978, the Louisiana Supreme Court, in a 4-3 decision, overruled a trial
judge’s finding that La Civ. Code, art. 2404 (1870) was unconstitutional under
the equal protection clause of the Fourteenth Amendment. The Court ruled
that the case could be decided without considering
the constitutional
question. The dissent of Mr Justice Tate left no doubt, however, that art.
2404 would be declared unconstitutional if the question were brought before
the Court (Corpus Christi Parish Credit Union v. Martin 358 So. 2d 295,
303-4 (La 1978)).

13 See Riley, supra, note 7, 41. For a more complete statement of policies
espoused by some members of the Council of the Louisiana State Law
Institute, see Riley, Women’s Rights in the Louisiana Matrimonial Regime
(1976) 50 Tul. L. Rev. 557, 567.

14La Civ. Code, art. 2346 (1870)
15La Civ. Code, arts 2325-2329

(as am.).

(1870)

(as am.). See infra, note 110, and

accompanying text.

“0 See Pascal, supra, note 8, 111-3; Pascal, Updating Louisiana’s Community

of Gains (1975) 49 Tul. L. Rev. 555, 559-65.
17 La Civ. Code, arts 2336 and 2346 (1870)

(as am.). For a discussion of the
inequality of treatment of the spouses under the previous regime, see
Riley, supra, note 7.

18La Civ. Code, arts 2338 and 2341 (1870)

(as am.). See infra, notes 33-41,

and accompanying text.

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tion, between spouses, of the responsibility for liabilities of the
community such that the wife may no longer renounce her half of
the community debts at the moment of dissolution’ 0

Indeed, a detailed study of the new provisions reveals that great
strides have been made toward achieving the goals of equality set
by the members of the Institute. Let us, then, consider in a first
part the principal elements of the reform and, in a second part,
certain problems which this reform engenders.

I. Principal elements of the new regime

A.

Introductory provisions
An introductory article provides a definition of a matrimonial

regime:

A matrimonial regime is a system of principles and rules governing the
ownership and management of the property of married persons as be-
tween themselves and toward third persons.2 0

The legal regime is designated the “community of acquets and
gains” ‘ Unless excluded by matrimonial agreement, the legal regime
governs the ownership and management of the property of married
persons 22

The parties may, by matrimonial agreement,23 establish a con-

19 La Civ. Code, arts 2357-2369

108-9; Pascal, supra, note 16, 557-9.

(1870) (as am.). See Pascal, supra, note 8,
20 La Civ. Code, art. 2325 (1870) (as am.). This definition follows French
doctrine’ (Planiol et Ripert, TraitM pratique de droit civil franvais, 2d ed.
(1957), T. 8, no. 2, p. 5; Laurent, Principes de droit civil, 5th ed. (1893), T. 21,
nos 2-3, pp. 7-10).

Nevertheless, it differs from some commentators in that it defines the
legal regime as having effect both between the spouses themselves and
between the spouses and third persons. For a criticism of this definition, see
Pascal, supra, note 8, 130; Pascal, supra, note 16, 556; Spaht & Samuel, supra,
note 1, 88-9.
The comments explain that the word “property” is synonymous with
“patrimony”, that is, inclusive of assets and liabilities (La Acts 1979, No. 709,
1, art. 2325, Comments; for the importance of the comments, see La Acts
1979, No. 709, 7).
21 This expression has been employed historically by the jurisprudence
and the doctrine. In the reform, “acquets” is understood to mean “acquisi-
tions”, and “gains” means an increase in the value of property
through
the common skill or labour of the spouses (La Acts 1979, No. 709, 1, art. 2327,
Comment).

22La Civ. Code, art. 2328 f(1870)
23The term “matrimonial agreement” is used in this reform to designate
contracts executed before and during the marriage. The historical expression
“marriage contract” continues to refer to antenuptial agreements only (La
Acts 1979, No. 709, 1, art. 2328, Comments).

(as am.).

1981]

COMMENTS – COMMENTAIRES

tractual regime of complete separation of property.24 Alternatively,
they may simply modify certain aspects of the legal regime by
matrimonial agreement. In the latter case, the provisions of the
legal regime which have not been excluded, or modified, remain in
force, and the matrimonial regime between the parties is classified
as partially contractual, partially legal.2 5

The spouses may enter into a matrimonial agreement, before
or during the marriage, as to all matters not prohibited by public
policy.26 They may subject themselves to the legal regime at any
time during the marriage by matrimonial agreement. However,
they may only contract out of the legal regime, or alter a conven-
tional regime during marriage, upon the filing of a “joint petition
and a finding by the court that this serves their best interests”.2 7

Spouses who move into and acquire domicile in Louisiana will
have one year to enter into a matrimonial agreement without court

(1870)

(as am.).

24 La Civ. Code, art. 2328
25A matrimonial agreement must be made by an “authentic act or by an
act under private signature duly acknowledged by the spouses” (La Civ.
(as am.)). It becomes effective against immovables
Code, art. 2331
when filed in the conveyance records of the parish in which the property is
situated, and as to movables when filed for registry in the parish or parishes
in which the spouses are domiciled (La Civ. Code, art., 2332 (1870) (as am.)).

(1870)

26La Civ. Code, art. 2329 (1870)

(as am.). Art. 2330 provides:

“Spouses may not by agreement before or duijng marriage, renounce or
alter the marital portion or the established order of succession. Nor may
the spouses limit with respect to third persons the right that one spouse
alone has under the legal regime to obligate the community or to alienate,
encumber, or lease community property.”

This provision has been criticized as limiting the freedom of the spouses
to adopt, by matrimonial agreement, a regime of their choice, i.e., a two.
fund system or a system of management by -6ne spouse. It would seem
that it was never the intention of the Council to limit the choice of conven.
tional regimes. See Spaht & Samuel, supra, note 1, 102 et seq.

The matrimonial agreement is subject to the general rules of conven-
tional obligations unless otherwise specified in this title. The provision may
not prejudice the rights of third persons (La Civ. Code, arts 1502 and 1969
(1870)). Nor can a-matrimonial agreement derogate from the provision of
La Civ. Code, art. 3183, according to which the property of a debtor is the
common pledge of his creditors.

27La Civ. Code, art. 2329 (1870)

(as am.).

This article represents a retrenchment from La Acts 1978, No. 627, art.
2834, which allowed the parties to change their regime simply by executing
an authentic act. There was no provision for judicial review. See infra,
note 107, and accompanying text.

The provision has been highly criticized, both because it limits the free-
dom of spouses to modify their regime when necessary, and because of the
imposition of judicial review with no clear standard for decisions as to
what is in the interest of the spouses. See Spaht & Samuel, supra, note 1,
90 et seq.

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[Vol. 26

approval.” After this time, they will become subject to the legal
regime of the state, no matter where they were domiciled at the time
of marriage or where their marriage was celebrated. 2

It is significant that the enacting legislation only gave spouses
living under the prior legal regime from August 1, 1979 until
January 1, 1980 to modify their future regime by matrimonial agree-
ment. Those who have not done so are now subject to the legal
regime for all future assets and liabilities and they are bound by
the provisions limiting mutability.30

A minor, unless fully emancipated, 31 cannot enter into a matri-
monial agreement without the written concurrence of his father
and mother, or of the parent having legal custody, or of the tutor
of his person.3

B. The legal regime

1. Classification of property

Under the legal regime, property is either community or separate.

Community property includes:

property acquired during the existence of the legal regime through the
effort, skill, or -industry of either spouse; property acquired with com-
munity things or with community and separate things, unless classified
as separate property under Article 2341; property donated to the spouses
jointly; natural and civil fruits of community property; damages awarded
for loss or injury to a thing belonging to the community; and all other
property not classified by law as separate property.33

As under the previous legal regime, there is a presumption that
assets acquired during the marriage belong to the community, but
now either spouse may prove that the asset is in fact his separate

2 8 La Civ. Code, art. 2329 (1870) (as am.).
29 La Civ. Code, art. 2334 (1870) (as am.).
30La Acts 1979, No. 709, 10, 13. Spouses married under a valid con-
tractual regime in another jurisdiction would presumably not be subject to
this provision.

31A minor is fully emancipated by judicial decree by virtue of La Civ.
Code, art. 385 (as am. by La Acts 1976, No. 155, 1), or by marriage under
La Civ. Code, art. 382 (as am. by La Acts 1978, No. 73).

32La Civ. Code, art. 2333 (1870)

(as am.).

The previous law required that the minor obtain the consent of the
same persons as were required to consent to his marriage. See La Civ. Code,
art, 2330 (1870).

33 La Civ. Code, art. 2338 (1870)

(as am.).

When spouses live in community, property donated to them jointly falls
into the community. If they do not live in community, the property donated
to them remains separate and is held by each in indivision (La Acts 1979, No.
709, 1, art. 2338, Comments).

1981]

COMMENTS – COMMENTAIRES

property. 4 The natural and civil fruits of the separate property
of a spouse are classified as a community asset, unless there has
been a declaration by authentic act, or an act under private signa-
ture acknowledged by both spouses, reserving such fruits as
separate property. 5 This provision is a change from the previous
rule which provided that the fruits of the husband’s separate
property were always classified as community assets.3 6 The portion
of damages received for personal injuries sustained during the
existence of the community and “attributable to expenses incurred
by the community as a result of the injury, or in compensation of

34 La Civ. Code, art. 2340 (1870)

(as am.).

Previously, the husband was required to file a double declaration of
use of separate funds and intention to replace them in his separate estate
when purchasing an immovable for his separate property. The failure to
include the double declaration was fatal to the husband’s subsequent claim
of paraphernality. On the other hand, the wife was not barred from proving
that the immovable was her separate property. See Riley, supra, note 7, 34.
Under the reform, the spouses face a rebuttable presumption of com-
munity property if the declaration of paraphernality has not been made.
See Spaht & Samuel, supra, note 1, 114.

A declaration in an act of acquisition that things are acquired with
separate funds as separate property may be controverted by the other spouse
unless he concurs in the act. It can be contested by the forced heirs and the
creditors of the spouses whether or not the other spouse concurred. Never-
theless, the transfer of property by onerous title accompanied by a declara-
tion of paraphernality is not subject to attack by the forced heirs or by
creditors (La Civ. Code, art. 2342 (1870) (as am.)).

The same principle would apply where a declaration is made that the
property acquired is community, when in fact it may be separate. Under
these circumstances, an authentic act evincing donative intent constitutes a
donation of one half of the property to the other spouse (Succession of
Daste 223 So. 2d 848 (La 1969); Succession of Russo 246 So. 2d 26 (La App.
4th Cir. 1971)).

35La Civ. Code, art. 2339 (1870) (as am.). In the treatment of “fruits”, this
article includes bonuses, delay rentals and shut-in payments from mineral
leases. See Spaht & Samuel, supra, note 1, 110.

A declaration affecting the fruits of immovables must be filed in the
conveyance records of the parish where the immovable is located (La Civ.
Code, art. 2264 (1870)).

36Under the previous law, the wife could retain the natural and civil
fruits of her separate property by filing a declaration of intention to
administer her separate property and to reserve the fruits thereof (La Civ.
Code, art. 2386 (1870) passim). Because, until such a declaration was filed,
the husband was presumed to be the administrator of the wife’s separate
property, the fruits of that separate property accruing before the execution
of the declaration fell into the community (La Civ. Code, art. 2385 (1870)
passim). See supra, note 7.

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the loss of community earnings”, is also characterized as com-
munity property.”

The separate property of a spouse consists of:
property acquired by a spouse prior to the establishment of a com-
munity property regime; property acquired by a spouse with separate
things or with separate and community things when the value of the
community things is inconsequential in comparison with the value of
the separate things used; property acquired by a spouse by inheritance
or donation to him individually; damages awarded to a spouse in an
action for breach of contract against the other spouse or for the loss
sustained as a result of fraud or bad faith in the management of com-
munity property by the other spouse; and damages or other indemnity
awarded to a spouse in connection with the management of his separate
property.38

One spouse may donate his undivided interest in a thing forming
part of the community to the other spouse, thereby transforming
that interest into the separate property of the donee. Unless other-
wise provided in the act of donation, an equal interest of the donee
is also transformed into separate property, and the natural and
civil fruits of the thing will be classified as the separate property
of the donee.,

37 La Civ. Code, art. 2344 (1870)

(as am.).

If the community regime is terminated otherwise than by the death of
ihe injured spouse, the portion of the damages attributable to the loss of
earnings that would have accrued after the termination of the community
property regime is the separate property of the injured spouse.

Personal injuries include injuries to the personality of a spouse and
workmen’s compensation benefits (La Acts 1979, No. 709, 1, art. 2344,
Comments).

This is a change from the previous law under which all damages award-
ed to the husband were considered to be community property, unless the
spouses were living separate and apart at the time of the accident, because
of fault on the wife’s part so serious as to have constituted grounds for a
separation from bed and board or divorce. The wife’s damages remained
her separate property even if the spouses were not separated. The reform
treats recovery of both spouses in the same way.

Under prior law, if a wife was separated in fact but had not filed for
a separation or divorce, the wife’s earnings were her separate property
whereas the earnings of the husband fell into the community.

3 8 La Civ. Code, art. 2341 (1870)

(as am.).

The principle of real subrogation is applicable to both separate and
community property (Newson v. Adams (1832) 3 La 231, 233; Yiannopoulos,
Louisiana Civil Law Treatise, 2d ed. (1980), Vol. 2, 338 et seq.

The value of community things used should be estimated at the time of
acquisition to determine whether they were “inconsequential” in relation
to the separate things employed in the acquisition (La Acts 1979, No. 709,
1, art. 2341, Comments).

La Civ. Code, art. 2343 (1870) (as am.).
This type of donation may be set aside by the creditors of the donor

1981]

COMMENTS – COMMENTAIRES

Damages received for personal injuries sustained by a spouse
during the existence of the community are classified as the separate
property of the injured spouse,40 saving the exception discussed
above. This also represents a change from the prior regime under
which personal injury damages received by the husband were
almost always classified as community property whereas those re-
ceived by the wife were, in all cases, her separate property.’

2. The concept of ownership under the new regime

Article 2336 provides:
Each spouse owns a present undivided one-half interest in the com-
munity property. Nevertheless, neither the community nor things of
the community may be judicially partitioned prior to the termination
of the regime.4 2

The community is not a legal entity but a patrimonial mass. An
undivided one-half of this mass forms a part of the patrimony of
each spouse during the existence of a community property regime.
This is a significant departure from the previous law under which
the community fell into the husband’s patrimony during the legal
regime. The wife’s ownership of one-half, although considered to be
more than an expectancy, could only be fully realized at the termina-
tion of the regime.43

through the revocatory action (La Civ. Code, arts 1978-1994 (1870)).

For a discussion of the changes made in the definition of “fruits”, see

Spaht & Samuel, supra, note 1, 110.

40 La Civ. Code, art. 2344 (1870) (as am.).
41 See supra, note 37.
42La Civ. Code, art. 2336

(1870)

(as am.).

“The spouses may amicably partition things of the community, without
prejudice to the rights of third persons” (La Acts 1979, No. 709, 1, art.
2336, Comments).

43The Louisiana wife’s interest

in the community property has been
characterized as follows: La Acts 1976, No. 444, amending La Civ. Code,
art. 2398 (1870) passim (present undivided one-half share); Creech v. Capitol
Mack, Inc. 287 So. 2d 497 (La 1973), aff’d 296 So. 2d 387 (La App. 1st Cir.
1974) (imperfect ownership without use); Phillips v. Phillips 160 La 813, 107
So. 584 (La 1926) (vested one-half interest). See also Dixon v. Dixon’s Execu-
tors 4 La Ann. 188, 191 (1832) which, as early as 1832, rejected the French
view that the wife had only a mere expectancy. The Louisiana Supreme
Court did, for a time, espouse the “mere expectancy” theory: see Guice v.
Lawrence 2 La Ann. 226 (1847), but Phillips v. Phillips overruled Guice and
revived Dixon on this point (Samuel, The Retroactivity Provisions of Louisia-
na’s Equal Management Law: Interpretation and Constitutionality (1979) 39,
La L. Rev. 347, 383; see McClendon, Louisiana’s New Matrimonial Regime
Law: Some Aspects of the Effect on Real Estate Practice (1979) 39 La L.
Rev. 441, 460-5).

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A separate or community obligation of either spouse can now
be satisfied from community property, or from the separate pro-
perty of the spouse who incurred the obligation.44 During the ex-
istence of the regime, the separate property of one spouse is not
liable for the separate or the community obligation of the other.4
This is another change from the previous law, under which the
husband was responsible for all community debts to the full extent
of the community and his separate property, whereas the wife
could renounce an insolvent community or accept under benefit
of inventory, thereby protecting her separate property from com-
munity liabilities. 46

A spouse cannot alienate, encumber, or lease his undivided
interest in the entirety of the community prior to its termination.
The theory is that a third party should not own an undivided interest
in the community or in the totality of its assets.

3. Management of the community

The reform adopts the principle of equal management:
Each spouse acting alone may manage, control or dispose of community
property unless otherwise provided by law.48

The spouse’s right of equal management is neither a tacit mandate
nor authority deriving from co-ownership. It is an attribute of any
regime of community property established by provisions of law.4
Equal management is, however, tempered by certain require-

ments of concurrence:

The concurrence of both spouses is required for the alienation, en-
cumbrance, or lease of community immovables, furniture or furnishings
while located in the family home, all or substantially all of the assets

44 When a separate obligation has been satisfied from community funds,
the community is entitled to reimbursement. See infra, note 66, and ac-
companying text.

45 La Acts 1979; No. 709, 1, art. 2336, Comments.
46 La Civ. Code, art. 2410 (1870) passim; La R.S. 9:2821 (1950) passim. See

Riley, supra, note 7, 34; see also Spaht, supra, note 10.

4 7 La Civ. Code, art. 2337 (1870) (as am.).

This is a disposition of public order which cannot be derogated from by
contract. A violation thereof is an absolute nullity. This does not prevent
the alienation, encumbrance or lease of a community thing in full owner-
ship (La Acts 1979, No. 709, 1, art. 2337, Comments).

48 La Civ. Code, art. 2346 (1870) (as am.).
49 La Acts 1979, No. 709, 1, art. 2346, Comments.

The spouse may not affect the legal relations and responsibilities be-
tween the other spouse and another party or parties with whom he has con-
tracted (La Civ. Code, art. 1889 (1870)).

19811

COMMENTS – COMMENTAIRES

of a community enterprise and movables issued or registered as provided
by law in the names of the spouses jointly.50

The donation of community property to a third person requires
the concurrence of both spouses, unless it is a “usual or customary
gift commensurate with the economic position of the spouses at
the time of the donation”.5′ The alienation, encumbrance or lease
of movable assets ‘of a business by the spouse who is the sole
manager thereof is, however, possible, unless the movables are
issued in the name of the other spouse or concurrence is required
by law.5 2 If both spouses manage a business, either can dispose of
movable assets under the same rules. A spouse has the exclusive
right to dispose of movables registered in his own name and to
manage and dispose Pf his interest in a partnership. 63

When concurrence is required but has not been obtained, the
alienation is relatively null, unless the other spouse has renounced
the right to concur:5 4

A spouse may expressly renounce the right to concur in the alienation,
encumbrance, or lease of a community immovable or all or substantially
all of a community enterprise. He also may renounce the right to parti-
cipate in the management of a community enterprise. The renunciation
may be irrevocable for a stated term.55
A spouse is liable for damages resulting from fraud or bad faith
the management of the community property 6 And, indeed, a

in

50 La Civ. Code, art. 2347 (1870) (as am.).

Encumbrances arising from law as a result of transactions or judgments
such as the vendor’s privilege, mechanics or materialman’s lien or judicial
mortgage are, of course, not subject to concurrence (La Acts 1979, No. 709,
1, art. 2347, Comments).

51 La Civ. Code, art. 2349 (1870)
52 La Civ. Code, art. 2350 (1870)

(as am.).
(as am.). Concurrence is required when
a movable is registered in the name of both spouses (La Acts 1979, No. 709,
1, art. 2350, Comments).

53 La Civ. Code, arts 2351 and 2352 (1870)
54 La Civ. Code, art. 2350 (1870)
(as am.).

(as am.).

In theory, such a renunciation would not constitute a change in the

administration of the community.
55La Civ. Code, art. 2348 (1870)

(as am.).

The renunciation may be irrevocable until the happening of a certain
or uncertain event. Under these circumstances, the renouncing spouse is not
a party to the transaction in question, and the resulting obligation cannot
be satisfied from that spouse’s separate property (La Acts 1979, No. 709,
1, art. 2348, Comments).

56 La Civ. Code, art. 2354 (1870)

(as am.).

The Louisiana Code of Practice, repealed in 1960, permitted the wife
to sue her husband during marriage for any reason whatsoever if the couple
were separate in property; but, if theirs were a community regime, she
could sue him only for separation of her paraphernalia. In 1960, the rule was
changed to conform to the judicial practice of not permitting the wife to

McGILL LAW JOURNAL

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spouse may seek judicial authorization to act alone upon a showing
that such action would be in the best interests of the family and
“that the other spouse arbitrarily refuses to concur or that con-
currence may not be obtained due to the physical incapacity, mental
incompetence, commitment, imprisonment, or absence of the other
spouse. ‘S57 If the interest of one spouse in the community might be
diminished by fraud, fault, neglect, or incompetence of the other,
the injured spouse may obtain a judgment decreeing separation of
property. 8

sue her husband unless they were separated from bed and board, except
for the four reasons mentioned, regardless of the spouses’ matrimonial
regime (La R.S., 9:291). The new legislation provides:

“Unless judicially separated, spouses may not sue each other except
for causes of action arising out of a contract or the provisions of Title VI,
Book III of the Civil Code; restitution of separate property; for divorce,
separation from bed and board, and causes of action pertaining to the
custody of a child or alimony for his support while the spouses are living
separate and apart, although not judicially separated” (La R.S., 9:291, as am.
by La Acts 1979, No. 711, 2; see Pascal, supra, note 8, 131).

This solution represents a retrenchment from the Subcommittee’s pro-
posal on the right of the spouses to sue each other during marriage which
was phrased in terms of full freedom to sue with one exception, that is,
damages for personal injury resulting from an unintentional offence or
quasi-offence. See Spaht, supra, note 10, 343-4.

There was much debate over the standard of care required of a managing
spouse. La Civ. Code, art. 2404
(as am. by La Acts 1926, No. 96)
sanctioned the husband’s fraud although interpretative jurisprudence even-
tually relieved the wife of the burden of proving fraud. The provision adopt-
ed was a compromise for those members of the Council who were in favour
of adopting the more far-reaching responsibility of the French reform (Fr.
Civ. Code, art. 1421; see Riley, supra, note 13, 563, 570; Thte, A Critique of
the Equal Management Act of 1978 (1979) 39 La L. Rev. 491, 542-4; Brooks,
Standards of Responsibility (La State Law Inst. Papers, 1975); see intra,
note 71, and accompanying text).

(1870)

For a discussion of the relationship between arts 2354 and 2369

(as

am.), see Spaht & Samuel, supra, note 1, 144.

57La Civ. Code, art. 2355 (1870) (as am.).

The word “family” refers to the limited family concept of art. 3556
(12), as am. by La Acts 1979, No. 711, 1. See La Code Civ. P,, arts, 695, 743,
as am. by La Acts 1979, No. 711, 4, providing for the proper defendant or
plaintiff when the managing spouse is absent or mentally incompetent.

58La Civ. Code, art. 2374 (1870)

(as am.).

“A judgment decreeing separation of property terminates the regime of
community property retroactively to the day of the filing of the petition,
without prejudice to rights validly acquired in the interim” (La Civ. Code,
art. 2376 (1870) (as am.)).

“The creditors of a spouse by intervention in the proceeding, may object
to the separation of property or modification of their matrimonial regime
as being in fraud of their rights. They also may sue to annul a judgment
of separation of property within one year from the date of the rendition

1981]

COMMENTS – COMMENTAIRES

4. Termination of the legal regime

The legal regime is terminated by the death of one of the
spouses, by a judgment of divorce, separation from bed and board
or separation of property, or by a matrimonial agreement establish-
ing another regime.59

Obligations incurred by the spouses with third persons, before
or during the legal regime, may be satisfied after dissolution from
former community funds and from the separate property of the
debtor spouse. If a spouse has disposed of former community funds
for obligations other than those of the community, he is liable for
all obligations of the other spouse up to the value of that com-
munity property. 60 Nevertheless, one spouse may, by a written act,
assume the responsibility for one-half of each community obliga-
tion incurred by the other spouse. The assuming spouse may there-
after dispose of community property without incurring further
responsibility for the obligations incurred by the other spouse.61

As between the spouses, claims for reimbursement are regulated
as follows: community obligations are satisfied from the community,
fund and separate obligations are satisfied from the separate pro-
perty of the debtor spouse. A community liability is one which has
been incurred for the common interest of the spouses or for the
interest of the other spouse.6 In general, all obligations incurred

00La Civ. Code, art. 2356 and 2328 (1870)

of the final judgment. After execution of the judgment, they may assert
nullity only to the extent that they have been prejudiced” (La Civ. Code,
art. 2376 (2376 (1870) (as am.)).
(as am.); La Acts 1978, No. 627,
1, arts 2850-2854, concerning acceptance of the community and liquidation
at the moment of dissolution, were the subject of much criticism (Tte,
supra, note 56; McClendon, supra, note 43; Pascal, supra, note 8, 109-11,
115-8; but see Bilbe, “Management” of Community Assets Under Act 627
(1979) 39 La L. Rev. 409, 428-36).

The offending provisions were deleted in the final reform. For a detailed
discussion of the history of these provisions and possible future amendments
to the Civil Code treating liquidation and administration of the community
at termination, see Spaht & Samuel, supra, note 1, 122-36.

See La Code Civ. P., arts 3001, 3002, 3005, 3032, as am. by La Acts 1979,

No. 711, 3.

0La Civ. Code, art. 2357 (1870)
Creditors may seize the funds of the former community in the hands
of either spouse (La Acts 1979, No. 709, 1, art. 2357, Comment). For a
discussion of the prior law, see supra, notes 8, 19 and 46, and accompanying
text.

(as am.).

61La Civ. Code, art. 2357

(1870)

(as am.); see Spaht & Samuel, supra,

02La Civ. Code, art. 2360

(1870)

(as am.); see Spaht & Samuel, supra,

note 1, 137-41.

note 1, 142.

McGILL LAW JOURNAL

[Vol. 26

by a spouse during the existence of the legal regime are presumed
to be community obligations. 3 An alimentary obligation imposed
upon a spouse by law is considered to be a community obligation 4
A separate obligation is one which is incurred during the existence
of the legal regime, but not in the common interest of the spouses:
An obligation resulting from an intentional wrong not perpetrated for
the benefit of the community, or an obligation incurred for the separate
property of a spouse to the extent that it does not benefit the community,
the family, or the other spouse, is likewise a separate obligation.3
If community property has been used to satisfy a separate
obligation of one spouse, the other spouse is entitled to reim-
bursement of half of the amount, or half of the value that the pro-
perty had at the time it was used. 6 Likewise, if a community obliga-
tion has been satisfied with separate funds, the spouse whose
separate funds have been so used is entitled to reimbursement ac-
cording to the same rule. Reimbursement is due

to the extent of community assets, unless the community obligation was
incurred for the ordinary and customary expenses of the marriage, or
for the support, maintenance, and education of children of either spouse
in keeping with the economic condition of the community. In the last
case, the spouse is entitled to reimbursement from the other spouse
even if there are no community assets.67
If community property has been used for the benefit of the
separate property of one spouse, the other spouse may demand
reimbursement of half the value of the community property at the
time it was used.68 And if separate property has been used for the
benefit of the community, the spouse whose separate property has
been so employed is entitled to reimbursement of half the value of

63La Civ. Code, art. 2361 (1870) (as am.).
64 La Civ. Code, art. 2362 (1870) (as am.).
(as am.).
05La
66 La Civ. Code, art. 2364 (1870) (as am.).

Civ. Code, art. 2363 (1870)

In treating this as an interest-free loan, the reform differs from the prior
law which used to allow reimbursement when the separate property
in-
creased in value due to community contributions. The measure of reim-
bursement used to be one-half of the enhanced value (La Civ. Code, art.
2408 (1870) passim).

67 La Civ. Code, art. 2365 (1870) (as am.) [our emphasis].

The jurisprudence previously allowed reimbursement of one spouse’s
separate property for obligations incurred in the common interest of the
spouses when the value of the community increased, the recovery being one-
half of the enhanced value of the community (La Acts 1979, No. 709, 1,
art. 2365, Comments).

68La Civ. Code, art. 2366 (1870)

(as am.).

This represents a change in the law from one-half of the enhanced value
to one-half of the value of the funds used. See La Civ. Code, art. 2408 (1870)
passim.

19811

COMMENTS – COMMENTAIRES

the .property so used at the time it was used, “if there are com-
munity assets from which reimbursement may be made”.69 Article
2368 provides:

If the separate property of a spouse has increased in value as a result
of the uncompensated common labor or industry of the spouses, the
other spouse is entitled to be reimbursed from the spouse whose pro-
perty has increased in value one-half of the increase attributed to the
common labor.70
One spouse owes an accounting to the other for the community
property under his control at the termination of the regime. The
obligation to account prescribes within three years of termination
of the community.71

C. Conventional regimes

1. The mixed legal and conventional regime

A mixed regime is created when the matrimonial agreement
modifies the legal community without entirely excluding it. In all
respects where the legal regime has not been pre-empted, its rules
prevail.V1 The parties are free to determine their own regime as
long as they do not derogate from rules of public order. 73 Spouses
living under a regime of conventional community established by
antenuptial agreement under the existing law shall be subject to
the provisions of this Act governing conventional community pro-
perty regimes as to matters not provided for in the matrimonial

G La Civ. Code, art. 2367 (1870)

(as am.) [our emphasis].

This reimbursement was granted previously by

the
(Emerson v. Emerson 322 So. 2d 347 (La App. 2d Cir. 1975)).

70La Civ. Code, art. 2368 (1870)

(as am.).

jurisprudence

This is a change in the law which previously did not allow reim-
bursement for an increase due to the ordinary course of things only. (La Civ.
Code, art. 2408 (1870) passim; see Abraham v. Abraham 87 So. 2d 735 (La
1956)).

71La Civ. Code, art. 2369 (1870) (as am.).

This duty is analogous to that of a co-owner. The spouse having control
of community property ought to be accountable for any loss or deterioration
of the things under his control due to his fault, and for the fruits pro-
duced by the things since the termination of the community regime. The
comments suggest that this obligation will be owed independently of a
showing of fraud or bad faith (La Acts 1979, No. 709, 1, art. 2369, Comments;
see Spaht & Samuel, supra, note 1, 1434, in which it is suggested that no
showing of fault should be necessary in an accounting).

The filing of a suit for termination of the community interrupts pre-
(as am. by La Acts 1954, No. 532),

scription (La Civ. Code, art. 3518 (1870)
as interpreted by the jurisprudence; see La R.S. 9:5801).

72La Civ. Code, art. 2328 (1870)
73See supra, note 26.

(as am.).

McGILL LAW JOURNAL

(Vol. 26

agreement.7 4 Presumably, then, the legal regime will govern in
areas which are not treated in the antenuptial agreement. 7

2. Separation of property regime

A separation of property regime is established by a matrimonial
agreement which excludes the legal regime, or by a judgment de-
creeing separation of property.76 Under this regime, each spouse
manages his own property without the consent or concurrence of
the other spouse.77

The spouses are solidarily liable for obligations incurred in
providing necessaries for the family.78 Each spouse contributes to
the expenses 6f the marriage according to the matrimonial agree-
ment. In the absence of a controlling provision, each spouse con-
tributes in proportion to his means. 79 This represents a change
from the prior law, which held the wife to contribute up to one-half
of her earnings in the absence of a stipulation in the matrimonial
agreement.80

Spouses living under a regime of separation of property in
accordance with the previous law, continue to do so, subject to the
provisions of the reform. Thus, for example, they would be affected
by all provisions which are of public order as well as modifications
of the Civil Code relative to interspousal contracts.81

In view of the far-reaching effects of this reform, it is to be
expected that its implementation will be difficult. The critics have
focused upon a certain number of problems which will be dis-
cussed in the second part of this article.

(1870)

74 La Acts 1979, No. 709, 12.
75A question which arises is what provisions of the antenuptial agreement
will be sufficient to pre-empt the legal regime. Also, if La Civ. Code, art.
2330
(as am.) does mean that parties can only adopt an equal
management regime, the management provisions of a prior conventional
community will necessarily be superseded by the new legal regime. Under
La Civ. Code, art. 2327 (1870) all conventional community regimes had to
designate the husband the “head and master” of the community. See Spaht
& Samuel, supra, note 1, 109; Samuel, supra, note 43, 400 et seq.

71GLa Civ. Code, art. 2370 (1870) (as am.).
77La Civ. Code, art. 2371 (1870) (as am.).
78 La Civ. Code, art. 2372 (1870) (as am.) See Spaht & Samuel; supra, note

1, 104-7.

70 La Civ. Code, art. 2373 (1870) (as am.).
80 See La Acts 1979, No. 709, 1, art. 2373, Comment.
81 La Acts 1979, No. 709, 11.

1981]

COMMENTS – COMMENTAIRES

II. Controversial aspects of the reform

A. Equality of ownership and control

The adoption of a legal regime which consecrates the principles
of equal and present ownership, coupled with equal control, brings
Louisiana law full circle with its Spanish and French heritage. It
is generally agreed that as early as the eighteenth century, well
within the period of the Spanish colonization of Louisiana, a
Spanish wife was considered to possess a present undivided one-
half interest in the ganancial assets.8 2 Moreover, although under
the Spanish regime, as under community property regimes gene-
rally, the husband was given powers of administration and control
inconsistent with a concept of equal ownership, the powers of the
husband were tempered by the analogy drawn between the legal
community and provisions governing partnership. 3 Unfortunately,
both the concept of presenf ownership and the tradition of some
tempering of the husband’s control were abandoned in the Digest,
1808 and never fully restored in subsequent codes.8 4

The idea of equal control of the community by both spouses
was advanced in France, at least as early as 1793, by Cambacr6s,

82 See Bartke, Community Property Law Reform in the United States and
in Canada –
A Comparison and Critique (1976) 50 Tul. L. Rev. 213, 218;
Pugh, supra, note 5, 11-2. For an extensive study of the eighteenth century
Spanish and French legal influence in Louisiana, see Baade, supra, note
5, 43 et seq.

83 See Pugh, supra, note 5, 2-5.
84 The Digest of Laws, 1808 provided:

“The husband is the head and master of the partnership or community
of gains; he administers said effects; disposes of the revenues which they
produce, and may sell and even give away the same without the consent
and permission of his wife, because she has no sort of right in them until
her husband be dead” (La Civ. Code, 1808, 3.5.66, p. 336). The codes of 1825
and 1870 omitted the phrase “because she has no sort of right in them until
her husband be dead”. See La Civ. Code, art. 2404 (1870); La Civ. Code, art.
2373 (1825). For a discussion of the characterization of the wife’s interest
in the community during the regime, see supra, note 43.

La Civil Code, art. 2807 (1870), provides that “[t]he community of pro-
perty created by marriage is not a partnership”. Authorities suggest that
this was a significant break with the Spanish tradition both past and
present (Pugh, supra, note 5, 3).

As early as the nineteen fifties, a noted Louisiana scholar suggested
reforming the community property regime by applying the partnership articles
(La Civ. Code, arts 2867-2875
to couples adopting the legal regime
(Morrow, Matrimonial Property Law in Louisiana (1959) 34 Tul. L. Rev. 3,
48). And, indeed, this suggestion was one of several presented to the Louisiana
Law Institute (Jeter, Proposed Reform of Matrimonial Property Law of
Louisiana (La State Law Inst. Papers, 1974)).

(1870))

McGILL LAW JOURNAL

[Vol. 26

in a first draft of the projet of the French Civil Code. 5 It was
rejected at the time in favour of a system of administration by the
husband, 6 and even the recent extensive reforms of the French legal
regime have not gone as far in granting managerial equality to the
wifeY7 Nevertheless, the idea corresponds to such an extent with
the aspirations and life-styles of people living at the end of the
twentieth century, that it is now part of community property
systems in Belgium,8 8 and in seven of the community property states
of the United States.89

The principal inspiration for the ownership and management
provisions of the present Louisiana reform is derived from other
community property jurisdictions in the United States, and notably
from Washington, California and Arizona The selective borrowing
85Fenet, Recueil complet des travaux prdparatoires du Code civil (1827),

T. 1, 20-1:

II. De la mani~re dont se r~glent les droits des 6poux lorsqu’il n’y

a pas de convention ….
9. A d6faut de convention, les droits des 6poux sont r6glds par la loi.
0. Les sommes en num6raire, les effets mobiliers, de quelque nature qu’ils
soient, appartenant aux 6poux A l’instant de leur union, les fruits de
leur industrie, ceux de leurs immeubles, les successions mobili~res qui
leur adviendront pendant leur mariage, leur deviennent communs.

11. Les 6poux ont et exercent un droit 6gal pour radministration de leurs

biens.

12. Tout acte emportant vente, engagement, obligation ou hypoth~que sur
les biens de run ou de l’autre, n’est valable s’il n’est consenti par l’un et
l’autre des dpoux.

13. Les actes ayant pour objet de conserver les droits communs ou indivi-

duels des dpoux, peuvent 6tre faits s6pardment par chacun d’eux.

14. Les 6poux peuvent s’obliger s6pardment et rdciproquement pour fait de
ndgoce: mais, dans ce cas, ddclaration prdalable et authentique de leur
volont6 mutuelle sera n6cessaire.

15. Cette ddclaration sera faite devant les municipalit6s ou au greffe des
86 Fr. Civ. Code, art. 1421; see Massip, The Rights of the Wife in the Matri-

tribunaux; elle sera affichde.

monial Regime (1976) 50 Tul. L. Rev. 549, 550.

87Loi no 65-570 du 13 juillet 1965 portant rdforme des rdgimes matrimo-
niaux, art. 1 (J.0., 14 juillet), amending Fr. Civ. Code, arts 214-226, 1387-1581.
See Massip, supra, note 86.

88See Belg. Civ. Code, arts 141-146.

For a study of the regime before the reform of July 14, 1976, see Dekkers,

Prdcis de droit civil beige (1955), T. 3, nos 131 et seq.

86 See Bartke, supra, note 82, 222-34.
9OSee Wash. Rev. Code, 26.16.030

(Supp., 1973); Cal. Civ. Code 5125
(Deering Supp., 1972); Ariz. Stat. Ann., 25-214 (Supp., 1973). See also, Idaho
Code, 82-912 (Supp., 1974); Riley, supra, note 13, 558-9; Riley, Book III [,J
Title VI [J Matrimonial Regimes (La State Law Inst. Papers, 1975); Riley,
Matrimonial Regimes; Minor’s Matrimonial Agreements; Management; Debts;
Dissolution (La State Law Inst. Papers, 1975); Riley, Chapter 3 – Of the

19811

COMMENTS – COMMENTAIRES

from other states was not, in this case, in contradiction with Loui-
siana’s civil law heritage, for the community property systems
of the other American states are directly or indirectly of Spanish
origin.” Moreover, it is both predictable and justified, for there
has emerged in the United States a sociological and cultural hege-
mony nurtured by federalism, advanced communication technology,
and population mobility. The search for solutions to common con-
temporary problems will inevitably begin with neighbouring juris-
dictions.

the logical extension of

The principle of equal and present ownership had gained much
support in Louisiana even before the reform, and its adoption
seems to have met with little or no criticism 2 However, the
management provisions,
the concept
and the elements which give it meaning, have been highly cri-
ticized, notably for the uncertainty which must follow as to
when the concurrence of both spouses will be required. There is
fear that in cases where the management of a business, for example,
is not clearly in the hands of one spouse, the other spouse may be
able to nullify transactions between the apparent manager and
third persons. On the other hand, the joining of both spouses in all
transactions retards and complicates the normal course of business. 93
Another criticism goes to the modification of the patrimony
of the spouses. While the wife’s creditors are pleased to see her
patrimony swell to include her separate property and her undivided
one-half of the community, the husband’s creditors find his patri-
mony reduced by the half of the community which now falls into
the wife’s patrimony. For those creditors antedating January 1,
1980, this represents a retroactive reduction of their debtor’s
patrimony.94

These criticisms and others were the basis for arguments in
favour of the adoption of a two-fund system, similar to the Partner-

Community or Partnership of Acquets or Gains (La State Law Inst. Papers,
1974).

For a comparative discussion of the Washington reform, see Cross, Com-
munity Property: A Comparison of the Systems in Washington and Louisiana
(1979) 39 La L. Rev. 479.

91 See Bartke, supra, note 82, 219-21. See also McClendon, supra, note 43,

455-67.

92 See supra, note 43, and accompanying text.
93 See McClendon, supra, note 43, 467 et seq.; T6te, supra, note 56, 502-16;
Bilbe, supra, note 59, 412-22; Pascal, supra, note 8, 113. See also, Spaht &
Samuel, supra, note 1, 116-21.

94 See Tte, supra, note 56, 5304; Samuel, supra, note 43, 386 et seq.; Pascal,

supra, note 8, 113-5. See generally, McClendon, supra, note 43.

McGILL LAW JOURNAL

[Vol. 26

ship of Acquests in Quebec,95 or to the Joint and Several Manage-
ment System in Texas 0 Under either plan, each spouse retains
the sole management of his separate earnings during the regime,
thus protecting and facilitating dealings between married persons
and third parties.9 7

The opponents of a two-fund system maintained that it would
not in fact allow the spouse who remained in the home without a
salary to participate in a meaningful way in the financial affairs of
the couple.98 The final decision was to favour the needs of the non-
working spouse within the marital relationship over those of
creditors dealing with the spouses.

In addition to the obvious philosophical victory that such a
decision represents, it should be remembered that the principle of
equal management is no longer new in the United States. All of the
community property states, except Texas, have already adopted
some form of equal management, 99 which allows Louisiana to profit
from previous experiences with this type of regime. Studies from
the other states indicate that there are no major inconveniences in

95 Que. Civ. Code, arts 1266c-1267d, as am. by S.Q. 1969, c. 77, s. 27. See
Groffier, La socidtd d’acqu6ts en droit qudbdcois (1977) 29 Rev. int. dr. comp.
747; Bartke, supra, note 82, 247-60.

96 Tex. Fain. Code, 5.01.62 (Vernon) (1976). See Spaht, supra, note 10, 331.
‘Under the Texas reform, property which would have been owned by
either spouse if single, is under that spouse’s sole management, control and
disposition. If such community property is mixed or combined with com-
munity property under the control of the other spouse or any other com-
munity property, it becomes subject to the joint management, control and
disposition of both spouses, unless the spouses have provided otherwise by
power of attorney or other agreement in writing (Tex. Fam. Code, 5.22
(1976)).

97 Four management proposals were considered by the Revision Com-
mittee: (1) the equal management system, an adaptation of the systems
adopted in California, Arizona and Washington; (2) a two-fund system similar
to either the Quebec or Texas reforms; (3) a system based upon the partner-
ship articles of the Civil Code; (4)
the original Louisiana regime modified,
(a) by reducing the husband’s managerial powers along the lines of the
French reform and, (b) by allowing the wife to retain her salary as separate
property under her administration much as she could retain her separate
property under the previous regime (Riley, Five Proposed Policy State-
ments (La State Law Inst. Papers, 1976); Riley, Summary of Six Alternative
Management Systems (La State Law Inst. Papers, 1974); see Pascal, supra,
note 16, 561).

98See Riley, supra, note 13, 558-62; Bartke, supra, note 81, 229-30, 251-8. But

see Pascal, supra, note 16, 560-2, 564-5.

99 See supra, note 89, and accompanying text.

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COMMENTS – COMMENTAIRES

the system, and that those which have arisen do not outweigh the
benefits to married individuals. 00

B. Mutability and interspousal contracts

A second, and potentially far-reaching, change introduced by
the recent reform is the provision permitting interspousal contracts
to alter the matrimonial regime during marriage. 10 It is significant
that such contracts were allowed in ancient Spain’0 2 and elsewhere
in Europe. 0 3 They were prohibited in the French Civil Code, 1804,
however, but reintroduced in a limited form in the reform of 1965.104
The Louisiana codes followed the provisions of the French Code,
1804.10 5 The historical reasons advanced in favour of immutability
of matrimonial regimes were two-fold: first, that the influence of
the husband during the marriage might lead the wife into a con-
tract unfavourable to her separate property and, second, that the
marriage contract constituted a pacte de famille influencing the
rights of third persons which could not afterwards be jeopardized. 06
Curiously, the tradition of mutability is still so deeply entrenched
in Louisiana that a provision introduced in the reform of 1978
allowing for complete freedom to alter the matrimonial regime was
modified by the final legislation to require judicial approval in all

100 See generally, Cross, supra, note 90. But see T~te, supra, note 56, 495-

502. See also McClendon, supra, note 43.
101 La Civ. Code, arts 2328 and 2329

(1870) (as am.). See supra, note 27.
The provision finally adopted by the Louisiana legislature requires judicial
approval as does the French reform (Fr. Civ. Code, art. 1397). It does not,
however, require that the spouses wait two years before modifying their
regime as does the French reform.

The Quebec reform, An Act respecting matrimonial regimes, S.Q. 1969,

c. 77, s. 27, amended Que. Civ. Code, art. 1265 to provide in part:

“The consorts may during the marriage modify their matrimonial regime
and their contract of marriage provided that, by any modification so made,
they do not prejudice the interests of the family or the rights of their
creditors”. For a general discussion of this article, see Groffier, L’influence
de la volontd des 6poux sur leur regime matrimonial (1977) 7 R.D.U.S. 291,
307-12.

102 See Pugh, supra, note 5, 27.
103 See Planiol, Treatise on the Civil Law, 11th ed. (1959), Vol. 3, Part I,

4, no 814A, p. 34.

104 Compare Fr. Civ. Code, art. 1395

(1804) with Fr. Civ. Code, art. 1397,
as am. by Loi no 65-570 du 13 juillet 1965 portant rdforme des rigimes matri-
moniaux, art. 2 (J.O., 14 juillet).

105La Civ. Code, art. 2329 (1870) (as am.).

The principle of mutability existed under the prior law in Louisiana
to the extent that the revocation of donations between spouses was permitted.

106 See Morrow, supra, note 84, 27-30.

McGILL LAW JOURNAL

(Vol. 26

cases, except those where the change involves adopting the legal
regime.10 7

Although critics generally agree that the husband’s influence
is no longer a reason to prohibit altering the matrimonial regime,
the mutability provision has been severely attacked for the in-
convenience and uncertainty which may result for third parties
dealing with the spouses. It is feared that it will be cumbersome
and difficult to ascertain the regime governing the parties at the
time of any one transaction. 08 However, much of the criticism was
directed toward the suggested provision allowing complete freedom
of change. Surely, the system of judicial review which was finally
adopted will prevent capricious changes, and if the provisions for
registration already contained in the reform are not sufficient
they could be made more stringent.

A far more significant problem concerns the effect which allow-
ing interspousal contracts may have upon other provisions of the
Civil Code. Before the reform interspousal contracts were severely
limited. 0 19 The relevant articles have been repealed, however, in

107See supra, notes 26 and 100.

The community property

jurisdictions

in

the United States allow

mutability of the matrimonial agreement.

Arizona expressly prohibits alteration of the matrimonial regime after so-
lemnization of the marriage (Rev. Stat., 25-201(D) (1965)), but is among the
seven community property states presently allowing spouses to sever their com-
munity estate into equal shares of separate property (Ariz. Rev. Stat.,
25-214 (1965); Cal. Civ. Code, 5103; Idaho Code Ann., 32-906 (1963); Nev.
Rev. Stat., 123-080 (1) (1967); New Mexico Stat. Ann., 57-2-12 (1953); Tex.
Fain. Code, 5.42 (1971); Wash. Rev. Code, 26.16.050

Six states, excluding Idaho and Louisiana, allow a severance of the
community and the creation of a joint tenancy. These states do have a
Statute of Frauds requirement for protection of the parties (Ariz. Rev. Stat.,
33-431
(1965); Cal. Civ. Code, 683; Nev. Rev. Stat., 123-030 (1967); New
Mexico Stat. Ann., 57-3-2 (1953); Tex. Fain. Code, 5.42 (1971); Wash. Rev.
Code, 64.28.010 (1972)).

(1957)).

In addition, all community property states allow spouses to destroy the
community aspects of their property by gift of their interest in specific
pieces of property to the other, thereby converting it into the separate
property of the recipient (Sheehan, Selected Community Property Problems
of the Migrant Spouse (1973) 7 Fain. L.Q. 433, 441).

108See Spaht & Samuel, supra, note 1, 104; McClendon, supra, note 43, 447,

449 et seq.; Thte, supra, note 56, 533-4; Pascal, supra, note 8, 106-8.

109La Civ. Code, art. 2446 (1870) passim provides:

“A contract of sale, between husband and wife, can take place only in

the three following cases:
1. When one of the spouses makes a transfer of property to the other, who
is judicially separated from him or her, in payment of his or her rights.
2. When the transfer made by the husband to his wife, even though not

1981]

COMMENTS – COMMENTAIRES

favour of virtual freedom of contract between the spouses.1l 0 The
greatest fear voiced by critics is that the rights of forced heirs are
now endangered by the possibility of simulated donations between
spouses to alter what would normally have constituted the lgiti-
me.”‘ The argument is rendered more cogent by the virtually
insurmountable problems of proof which the heirs could encounter
in attacking such a transaction.

The point is well taken, although in those cases where the forced
heirs of both spouses .are one and the same, the problem may
be academic. It would seem that the protection of forced heirs
would be better achieved by more severe and comprehensive rules
for registration of interspousal transactions and stricter require-
ments of accounting to forced heirs. Indeed, it has been suggested
that judicial presumptions of simulation applicable to sales be-
tween parents and children may be applied to sales between hus-

separated, has a legitimate cause, as the replacing of her dotal or
other effects alienated.

3. When the wife makes a transfer of property to her husband, in payment

of a sum promised to him as a dowry.
Saving, in these three cases, to the heirs of the contracting parties, their

rights, if there exists any indirect advantage.”

See also La Civ. Code, art. 1751 (1870) passim which stated as follows:
“Married persons can not, during marriage, make to each other, by an
act, either inter vivos or mortis causa, any mutual or reciprocal donation
by one and the same act.”

La Civ. Code, art. 1790 (as am. by La Acts 1979, No. 711, 1), which
prohibited contracts between husband and wife under “the cases specially
provided by law, under different titles of this Code”, was long construed as
forbidding contracts between spouses except in cases expressly permitted
by law.

110 See McClendon, supra, note 43, 449-51.
1ii La Civ. Code, arts 886-914 (1870); T6te, supra, note 56, 535-40. See also,
supra, note 110, and accompanying text. But see Spaht & Samuel, supra,
note 1, 90 et seq.

A spouse was not a regular heir under the Civil Codes of 1808 and 1825.
A series of acts in 1844 (La Acts 1844, No. 152), 1910 (La Acts 1910, No. 57),
1916 (La Acts 1916, No. 80), 1920 (La Acts 1920, No. 160), and 1938
(La
Acts 1938, No. 408) gradually ameliorated the position of the surviving spouse.
Under art. 915, the surviving spouse is now a regular heir as to a portion of
the community where there are no descendants. If there are children of
the marriage, the spouse has a legal usufruct by virtue of art. 916. La Acts
1975, No. 680 amended art. 916 to provide that, where the usufruct was
confirmed by testament, the usufruct would not be deemed to impinge upon
the ldgitime. Finally, in 1976, La Acts 1976, No. 227 added art. 916.1 which
provides the surviving spouse with an additional usufruct on community
property constituting the family home, which likewise is not considered an
impingement on the 19gitime (Tate, supra, note 56, 535).

McGILL LAW JOURNAL

[Vol. 26

bands and wives.112 In any event, it would hardly have been possible
or desirable to maintain the fiction of the wife’s incapacity to
contract with her husband in legislation designed to lead a society
into the twenty-first century.

C. Constitutionality of retroactive provisions of the reform

A third, and potentially serious, criticism of the reform concerns
the constitutionality of several provisions providing for its retro-
active application. In an effort to extend the benefits of the reform
to spouses married under the previous law, the enacting legislation
provides that, spouses married under the previous legal regime
become subject to the new regime,11 and that spouses married
under a conventional community regime will be subject to the
new regime in those areas not governed by their antenuptial agree-
ment. 114

The reform also establishes a major reclassification of property.
In some circumstances, it is not clear whether the reclassification
will operate retroactively. 1 5 Finally, in granting the wife equal
management as well as equal ownership of the community, the
husband’s patrimony during the community has been retroactively
reduced as to creditors antedating January 1, 1980.110

The constitutional arguments against the reform are two-fold.
First, if the prior regime can be classified as contractual, it can be
argued that the new law is unconstitutional in that it retroactively
impairs the freedom to contract.117 Second, if the prior regime is
not contractual, then the reform may be attacked as a deprivation
of property without due process of law. 118

112 See supra, note 110, and accompanying text, and note 111.
11 See supra, note 30, and accompanying text.
114 See supra, note 74, and accompanying text.
115 See Samuel, supra, note 43, 393-8.
110 See Samuel, ibid., 386-92.
117″No State shall … pass any … Law impairing the Obligation of Con-
tracts …” (U.S. Const. art. I, 10). The Louisiana constitutional counterpart
to the federal contracts clause is art. I, 23, of the 1974 Louisiana Consti-
tution.

It is significant that the reform has rejected the theory that the legal
community constitutes a tacit contract (La Acts 1979, No. 709, 1, art. 2336,
Comments; see La Acts 1978, No. 627, 1, art. 2833, Comment; but see
Pascal, supra, note 8, 106).
1 8 “[N]or shall any State deprive any person of life, liberty, or property
without due process of law … ” (U.S. Const., Amend. XIV, 1). The
Louisiana constitutional counterpart to the federal due process clause is
art. I, 2, of the 1974 Louisiana Constitution.

Retroactive civil laws are not prohibited per se either by the United
States Constitution or by the Louisiana Constitution. The clause in art. I,

1981]

COMMENTS – COMMENTAIRES

The “impairment of contract” argument would probably be the
more successful means of defeating the Louisiana reform. Recent
federal court decisions indicate that, if a contract has been severely
impaired, the courts will scrutinize the purpose of the legislation
and the means chosen to achieve that purpose. It would seem that
it is no longer tenable to argue that contracts are made with the
intention of applying future legislation.119 The burden is probably
upon the legislator to show that the offending law was enacted with
a broad social purpose, and that no less dramatic means could have
been employed to achieve the same ends. 20

On the other hand, it is not clear that the previous legal regime
in Louisiana constituted a “tacit contract” between the parties.
The “tacit contract” theory developed as a French rule of private
international law, 2′ but its weaknesses have been recognized by
certain French authorities. 22 Indeed, the fact that parties marry
without executing an antenuptial agreement, does not indicate
“tacit” consent to contract a matrimonial regime according to the
dictates of the legal regime. 23

There are several arguments raised in support of the “tacit
contract” theory in Louisiana. A historical argument is based upon
a difference in the wording of the Digest, 1808, and the Civil Code,
1825, such that the former could be construed as imposing the
legal regime upon all married couples. It has been argued that, by

9 of the United States Constitution forbiding ex post facto laws has been
held to apply only to criminal laws (Calder v. Bull 3 U.S. (3 Dall.) 386 (1798)).
The ex post facto clause of the Louisiana Constitution probably does not
apply to civil laws (Cooper v. Lykes 49 So. 2d 3 (La 1950)). The clause is
found in art. I, 23, of the Louisiana Constitution of 1974.

119 See Samuel, supra, note 43, 376-9, 402-4.
120 See Samuel, ibid, 356-60.
121 See Batiffol, Droit international privg, 6th ed. (1978), T. 2, nos 616 et seq.,
pp. 306 et seq.; Roubier, Le droit transitoire (Conflits des lois dans le temps),
2d ed. (1960), no 79, pp. 393-6. See also, Groffier, supra, note 101, 298-300.

122See Batiffol, ibid., 278; Cornu, Les regimes matrimoniaux (1974), 123;
Desbois, “France” in Rouast, Le rdgime matrimonial legal dans les ldgisla-
tions contemporaines (s.d.), t. XIII, pp. 181 et seq.; contra, Mazeaud, Legons
de droit civil [,] Rdgimes matrimoniaux, 3d ed. (1969), T. IV, Vol. 1, no 30, pp.
49-50.

123 See Spaht, supra, note 10, 329-30. See generally, Samuel, supra, note 43.

It is significant that, under the prior law, couples could only avoid the
“head and master” provision by contracting a regime of separation of pro-
perty. La Civ. Code, art. 2327
(1870), prohibited their derogating by matri-
monial agreement “from the rights resulting from the power of the husband
over the person of his wife and children, or which belong to the husband
as the head of the family”. (But see Pascal, supra, note 16, 555-6; Pascal,
“Matrimonial Regimes” in The Work of the Louisiana Appellate Courts for
the 19754976 Term (1977) 37 La L. Rev. 358, 358-9).

McGILL LAW JOURNAL

[Vol. 26

allowing couples to contract out of the legal regime in the 1825
Code, the legislator intended that the legal regime also be considered
contractual, a tacit contract in the absence of an express antenuptial
agreement. 124

Secondly, it has been argued that article 2807, which provides
that a matrimonial regime is not a partnership but “the effect of a
contract”, is support for the “tacit contract” theory;125 however,
the history of this provision indicates that it refers to conventional
matrimonial regimes rather than to the legal regime.12 Thirdly, art-
icle 1967 has been cited in support of the legislative intention to treat
the legal regime as a contract, for that article cites the legislative
provisions controlling the community of gains as illustrative of
provisions which take effect and regulate a contract in the absence
of an agreement between the parties to the contrary. 27 Here again,
historical analysis of this article indicates that it more properly
refers to a conventional regime.12 Article 2292, stating that under
some circumstances the law will impose obligations between parties,
as in the case of “common property”, is more appropriate to the
legal regime.’2

Even if the previous legal regime were classified as contrac-
tual, however, it may be possible to show that a broad societal pur-
pose has been served by the reform and that less dramatic means
to this end were not available. Nor is it a foregone conclusion that
a “tacit contract” between the spouses married under the prior
legal regime has been severely impaired by the new legislation.130

The second constitutional argument would be to the effect that
the husband had been deprived of property without due process
of law. Under this argument, the attacking party must show that
the law in question is arbitrary and irrational. 131 This would be a
difficult task. There is already authority for the proposition that,
if the wife’s interest in the community constitutes more than an
expectancy, the legislature can diminish the husband’s power to

124 See Pascal, supra, note 16, 556 et seq. But see Samuel, supra, note 43,

364-70.

125La Civ. Code, art. 2807 (1870).
126See Batiza, supra, note 5, in fine, 98; Samuel, supra, note 43, 371.
127 La Civ. Code, art. 1967 (1870).
128See Batiza, supra, note 5, in fine, 81; Samuel, supra, note 43, 372-3.
129La Civ. Code, art. 2292 (1870). See Samuel, supra, note 43, 374.
130It has been suggested that “[tihe new legislation might simply have
provided that couples already married would be presumed to contract the
new community regime unless one of the spouses, within a stated period of
reasonable length, recorded his or her decision to retain the existing regime”
(Pascal, supra, note 8, 128; see Spaht & Samuel, supra, note 1, 107-9).

131 See Samuel, supra, note 43, 352-6.

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COMMENTS – COMMENTAIRES

protect it, in order to increase the control by the wife.132 And,
indeed, under the prior regime, the Louisiana wife had been held
to possess more than an expectancy in the community before its
termination. 133

Other American jurisdictions have, more often than not, sought
to avoid constitutional issues. There is thus no precedent in this
area. 34 The French reform, however, contains a number of analo-
gous retroactive provisions.135 It remains to be seen how the consti-
tutional issues will be treated at both the state and federal levels.
Conclusion

This legislation is in its infancy. It has been said that it re-
presents a radical departure from the community of gains’ tra-
ditional structure.3 6 This is true, and it follows that the imple-
mentation of the reform will engender difficulties at least of a
practical order. Much has been said in defence of the new legisla-
tion, however, and principally that it responds to the needs of
women and men in contemporary North American society. That is
reason enough for change, for no state can ignore the needs of its
citizens in favour of maintaining its legal tradition, however dear
that tradition may be.

It is most significant, however, that in many respects this reform
represents a return to concepts of fairness and equality which
existed under the Spanish and French systems
in Louisiana’s
history. Far from being untried, variations of the reform have
developed in seven other American states, and Belgium adopted
similar legislation in 1976. Other jurisdictions have chosen different
formulae for reform, but the trend to recognize equal rights in
partners to a marriage is common to many contemporary so-
cieties .137

This change in Louisiana law was long overdue and, despite
Katherine Connell-Thouez*

any criticism, it is most welcome.

132See Samuel, ibid., 382 et seq., and legislation cited therein. See also,

supra, note 4.

123 See supra, note 43.
134See Samuel, supra, note 43, 349-50, 392, 400.
’35 See Samuel, ibid., 385-6, 388-92. See also the Quebec Reform, An Act
respecting matrimonial regimes, S.Q. 1969, c. 77, s. 28, which amended Que.
Civ. Code, art. 1268 to provide that “[tihe provisions governing community of
moveables and acquets are applicable to consorts who, on the 1st of
July 1970 were married under the regime of legal community.”
136 See Pascal, supra, note 16, 566; TAte, supra, note 56, 546-9.
13 See Riley, supra, note 13, 565-7; Massip, supra, note 86, 549.
* Teaching Fellow, McGill University. The author thanks Prof. Ethel Grof-
fier of McGill University and Mary Elizabeth Paltron of the Louisiana Bar
for their comments.