Statutory Marital Property Law de lege lata and de lege ferenda
| Author | Kai Kullerkupp |
| Pages | 78-88 |
Kai Kullerkupp
Statutory Marital Property Law de lege lata and de lege ferenda
In the light of the turbulent changing and reorganisation of the Estonian private law during the last decade, family law has modestly remained in the background and has, apparently to the greatest extent when compared to the other branches of civil law, maintained its decades-old structures and forms.
The applicable Family Law Act 1 entered into force on 1 January 1995. Its regulation method and prevalent ideology largely rely on the ESSR Marriage and Family Code of 1969 2 ? a fact not concealed by the authors of the Family Law Act of 19953.
When comparing the applicable Family Law Act of Estonia with the corresponding laws of different West European or American countries, then the general ideology of the Family Law Act of 1995 is not actually outdated or overly ignorant of today's forms of cohabitation. Rather, several structural solutions dating back to the Soviet period have been fairly progressive in their overall regulative content. Western countries have only within the last few decades come close to recognising certain approaches that have been taken for granted in communist and post-communist society for a long time, at least on the legislative level. For example, the Russian SFSR 18 December 1917 Decree on marriage, children and establishment of vital statistics registers stressed the equality of spouses, including their equal freedom to act in obtaining an income, and the equal treatment of children born of marriage and those born outside marriage. The so-called factual marriages were recognised as equal to registered marriages. In Germany, an equality law that granted married women greater rights than before (including a statutory marital property regime based on the equality of spouses instead of the usufructuary right of the husband) was passed only in 1957; but actual equality between spouses was achieved later by the adoption of further laws ? the last regulation that provided for the advantageous position of the husband (the adoption of the husband's family name as the marital name) was repealed only in 19934. Similarly, Dutch law waived only in 1957 its regulation concerning the status of a married wife which resembled more that of a minor or custodian than that of an equal partner5.
Although the general concept of the Family Law Act of 1995 in the broadest sense also corresponds to the modern understanding of family relations, the fact that a number of problems have arisen from the aspect of practical application cannot be ignored. The main shortcoming of the present Family Law Act is its low degree of regulation. The Act contains a large number of declarative provisions, but frequently lacks specific private law bases for claims to enable a person court protection of his or her interests and rights. Parts of the Act are more like a compilation of programme positions and leave adjudicative bodies such a scope for decision that it is almost impossible to predict the outcome of a specific case from the provisions of law. The second direct need to review the Family Law Act of 1995 arises from the general reforms of civil law (including amendments to regulation of active legal capacity in the draft General Part of the Civil Code Act). Thirdly, in co-operation with different international organisations and family law jurists of other countries, the need has been revealed to pay more attention to internationally accepted and applied family law institutions and rights of action6. The time seems ripe to go on a second round and thoroughly review the applicable family law.
Family law regulates the proprietary relations between persons mainly in two areas: the proprietary relations of spouses and the proprietary relations arising from the right of guardianship (including between parents and children). This paper focuses on the proprietary relations of spouses, and chiefly on the statutory marital property relationship. As marital relations characterise a remarkable part of subjects of private law, it can be said that marital property law affects the entire private law economic turnover to a certain extent. Also, the arrangement of proprietary relations of spouses has a most direct link to the law of obligations and the law of property, which in view of the current reforms in Estonia renders the subject of marital property law highly topical.
The marital property regime or property relationship sets out the real right status of each spouse's entire property (including the matter of belonging of the items of property under the sole ownership of one spouse or in the joint ownership of spouses), the procedure for administration (use and disposal) of the property, and its possible restrictions in view of the other spouse's interests, liability to creditors who are third persons, as well as rules for division of property upon termination of the proprietary relationship7. The objective of the marital property regime is ? pursuant to the accentuation selected by the legislator ? to balance the various, often conflicting interests: the personal interests of spouses versus general interests, the interests of the husband versus those of the wife; the interests of spouses versus those of third persons (creditors, successors). The world practice knows a large number of marital property regimes, which can be broadly generalised into two basic models: separate property and joint property regimes. However, these do not occur in the pure form, because the interests of the society and of an individual require a combination of the elements of both models8.
Within a legal order, marital property regimes divide into statutory property systems and those based on a marital property contract9.
A statutory marital property relationship regulates the proprietary relations of spouses only pursuant to law, unless they have entered into a marital property contract in the required form or until the statutory marital property regime is not terminated on other grounds (e.g. by court judgement).
The statutory marital property relationship is the most important property regime, the role and spread of which in both Estonia and in foreign countries by far exceeds the role of all alternative marital property relationships or those created by a marital property contract10. Although the relevant statistics are not available in Estonia 11 , it can be said that the vast majority of married couples do not enter into a marital property contract, which is why the statutory marital property relationship directly applies to the proprietary relations of the greatest number of married people. This requires that the statutory property system should be particularly elaborated and balanced, because it governs the relationships of people of most different proprietary positions.
In the post-World War II Estonian family law regulation 12 the system of joint property of spouses has become so commonplace that its amendment or replacement by another regime regulating the proprietary relations of spouses has not even been discussed on a larger scale.The following part of the paper focuses on the problems related to the marital property regime established by the applicable law and provides an opinion on the ability of the regime to function.
Pursuant to the applicable Family Law Act, the property acquired by spouses during marriage becomes the joint property of spouses, while property owned by a spouse prior to marriage remains his or her separate property13. According to family law terminology, this is the limited community property or joint acquisition regime 14 , which as characteristic to community property relationships entails a fairly strong proprietary bond between the spouses. Any community property relationship remarkably limits the spouses' economic freedom to act and thus greatly interferes with the personal sphere of spouses. Therefore, the question that needs to be answered first is whether the joining of proprietary rights enables to protect the rights of all parties concerned better than other possible legal structures do, and whether it thereby justifies the limitations characteristic to this property system.
Marital property systems creating joint property rights have been regarded as characteristic of the social nature of marriage ? they correspond to the understanding of marital cohabitation as a social unit, which joins together both the personal and proprietary spheres of the spouses15. The concept of community property directly relates to the notion that marriage is for life: having permanently linked their fates, spouses agree to incur each...
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