This diploma thesis deals with community property ("CP"). CP is one of the institutional property regimes. CP is known from the times of Roman Empire and made significant progress until nowadays. In Europe, CP differs from country to country. In the Czech Republic, CP is created by law at the time spouses enter into marriage. CP can be modificated before entering into a marriage as well as after. CP can be modificated by spouses or by court. CP can also be avoided. Modification of CP has its effects; if existed, it must be adjusted, and has also significant effects on spouses' creditors. CP's legal base is very brief and lets wide scope of answers unanswered. For example, Civil Code nr. 89/2012 as well as Civil Code nr. 40/1964 does not specify the age when engaged couple can make a prenuptial agreement or uses indefinite legal terms (spouses' typical house equipment, etc.) The thesis is composed of 10 chapters and describes the legal basis for modification of CP, and the effects of modification of CP. The goal of my work is to describe the subject of CP, how CP works in practice, and describe how to modificate a CP. Chapter one (Historical excursion) leads us through history of this legal institute, starting in Roman Empire and ending with new Civil Code (nr. 89/2012). Chapter two (CP in Europe) is a...

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Magister Legum - LLM / South Africa

The study commences with a brief overview of the history of marriage and specifically of marriage in community of property with reference to marital power. The unique ex lege consequences of marriage in community of property is comprehensively discussed. The Constitutional Court decision in Harksen v Lane determined the test for unconstitutionality. The test for unconstitutionality is discussed with specific reference to the Bill of Rights. The Constitutional Court's decision in Volks v Robinson is critically evaluated as the Court propounded the so-called "choice argument" in terms of which people purposefully decide to marry instead of cohabiting and therefore the law may accord certain benefits to married people which are not available to unmarried life partners. The Constitutional Court decisions in Van der Merwe v RAF as well as its consequences are discussed. It concluded that section 18(b) of the Matrimonial Property Act constituted unjustifiable discrimination between spouses married in community of property and those married out of community of property and the said section was therefore declared unconstitutional. The law of insolvency in respect of the joint estate of spouses married in community of property is investigated. Freedom of testation and case law relating thereto is considered briefly. The study concludes with the submission that the common law provision that separate assets of a spouse in a marriage in community of property form part of the joint insolvent estate even if a testator expressly determined in his will that a bequest will not form part of the joint estate of a beneficiary, amounts to unfair discrimination and is unconstitutional. t is submitted that the principle unfairly discriminates between spouses married in community of property and those married out of community of property on the ground of marital status. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015

The study commences with a brief overview of the history of marriage and specifically of marriage in community of property with reference to marital power. The unique ex lege consequences of marriage in community of property is comprehensively discussed. The Constitutional Court decision in Harksen v Lane determined the test for unconstitutionality. The test for unconstitutionality is discussed with specific reference to the Bill of Rights. The Constitutional Court's decision in Volks v Robinson is critically evaluated as the Court propounded the so-called "choice argument" in terms of which people purposefully decide to marry instead of cohabiting and therefore the law may accord certain benefits to married people which are not available to unmarried life partners. The Constitutional Court decisions in Van der Merwe v RAF as well as its consequences are discussed. It concluded that section 18(b) of the Matrimonial Property Act constituted unjustifiable discrimination between spouses married in community of property and those married out of community of property and the said section was therefore declared unconstitutional. The law of insolvency in respect of the joint estate of spouses married in community of property is investigated. Freedom of testation and case law relating thereto is considered briefly. The study concludes with the submission that the common law provision that separate assets of a spouse in a marriage in community of property form part of the joint insolvent estate even if a testator expressly determined in his will that a bequest will not form part of the joint estate of a beneficiary, amounts to unfair discrimination and is unconstitutional. t is submitted that the principle unfairly discriminates between spouses married in community of property and those married out of community of property on the ground of marital status. / LLM (Estate Law), North-West University, Potchefstroom Campus, 2015

Where parties are married in community of property, debts are incurred by the parties and not by the joint estate. Each spouse is liable for debt incurred by either spouse. A creditor is, therefore, entitled to claim from joint estate of both spouses (as co debtors). Such an estate includes not only the spouse's undivided interest in the joint estate but also any and all separate property that falls outside the joint estate. Once the joint estate is sequestrated, both spouses become "insolvent debtors" and consequently the property (including separate property) of both spouses is available to creditors. The lnsolvency Act, as opposed to the Matrimonial Property Act, makes no provision for the recognition or sequestration of 'separate property". Although an estate is sequestrated, it is the debtor who is insolvent. A debtor (married in community of property) who possesses "separate property" is on sequestration of the joint estate insolvent in relation to both his or her undivided interest in the joint estate as well as any "separate property". But is this correct? Ample provision is made by various statutes for the exclusion of certain property from an insolvent estate. Does this not mean that a debtor might be insolvent in relation to one estate and not insolvent in relation to the other? The estate of a partnership is, for purposes of sequestration, deemed to be a separate entity from the partners' private estates. Where the partnership fails, creditors first have recourse against the estate of the partnership where after any shortfall may be claimed from the private estates of the partners. Although the estates of partners are sequestrated simultaneously with the estate of the partnership, creditors of the partnership may not proof their claims against the estate of a partner and vice versa. Is it just and equitable that a spouse who owns separate property is treated differently from a partner who does not possess a separate estate in law from the partnership estate? A partner only has one estate - a private estate that includes his or her interest in the partnership. It is concluded that despite the judgment of the Supreme Court of Appeal in Du Plessis v Pienaar, a sense of dissatisfaction still prevails regarding the status of separate property. It is furthermore suggested that in view of the lack of provisions in the insolvency Act regarding separately owned property, the said Act be amended to provide for the specific exclusion of separate property from an insolvent joint estate. It is more advisable to provide for the exclusion of separate property from the insolvent joint estate than to provide for the simultaneous sequestration thereof. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2004.

Where parties are married in community of property, debts are incurred by the parties and not by the joint estate. Each spouse is liable for debt incurred by either spouse. A creditor is, therefore, entitled to claim from joint estate of both spouses (as co debtors). Such an estate includes not only the spouse's undivided interest in the joint estate but also any and all separate property that falls outside the joint estate. Once the joint estate is sequestrated, both spouses become "insolvent debtors" and consequently the property (including separate property) of both spouses is available to creditors. The lnsolvency Act, as opposed to the Matrimonial Property Act, makes no provision for the recognition or sequestration of 'separate property". Although an estate is sequestrated, it is the debtor who is insolvent. A debtor (married in community of property) who possesses "separate property" is on sequestration of the joint estate insolvent in relation to both his or her undivided interest in the joint estate as well as any "separate property". But is this correct? Ample provision is made by various statutes for the exclusion of certain property from an insolvent estate. Does this not mean that a debtor might be insolvent in relation to one estate and not insolvent in relation to the other? The estate of a partnership is, for purposes of sequestration, deemed to be a separate entity from the partners' private estates. Where the partnership fails, creditors first have recourse against the estate of the partnership where after any shortfall may be claimed from the private estates of the partners. Although the estates of partners are sequestrated simultaneously with the estate of the partnership, creditors of the partnership may not proof their claims against the estate of a partner and vice versa. Is it just and equitable that a spouse who owns separate property is treated differently from a partner who does not possess a separate estate in law from the partnership estate? A partner only has one estate - a private estate that includes his or her interest in the partnership. It is concluded that despite the judgment of the Supreme Court of Appeal in Du Plessis v Pienaar, a sense of dissatisfaction still prevails regarding the status of separate property. It is furthermore suggested that in view of the lack of provisions in the insolvency Act regarding separately owned property, the said Act be amended to provide for the specific exclusion of separate property from an insolvent joint estate. It is more advisable to provide for the exclusion of separate property from the insolvent joint estate than to provide for the simultaneous sequestration thereof. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2004.

Le droit contemporain de la conjugalité est fondé sur un principe de pluralisme. Néanmoins, la notion de couple est de plus en plus prégnante. Le mariage, le pacte civil de solidarité et le concubinage apparaissent ainsi comme le reflet d’une conjugalité qui se veut plurielle, dont les effets sont progressifs mais qui est de plus en plus contrarié par l’unité de la notion de couple. D’ailleurs, les relations patrimoniales quotidiennes des époux, des partenaires pacsés et des concubins sont organisées autour des mêmes principes : un renforcement des collaborations économiques et des exigences de protection patrimoniale. Il peut alors être proposé d’introduire au Code civil, de lege ferenda, une définition unitaire de la notion de couple ainsi qu’un socle de règles applicables à tous les couples, sans égard pour leur mode de conjugalité. Les relations patrimoniales quotidiennes du couple seraient ainsi régies par des règles identiques conformément à l’unité de la notion de couple. L’unité de la notion de couple n’efface cependant pas totalement le principe de pluralisme des conjugalités. Malgré le rapprochement des dispositions du mariage et du PACS, ces deux modes de conjugalités institutionnels répondent de modèles patrimoniaux différents. Passée l’organisation des relations patrimoniales quotidiennes, chaque époux a en effet vocation à participer à l’enrichissement réalisé par l’autre pendant l’union. En revanche, la participation de chaque partenaire à l’enrichissement de l’autre est réduite aux seules opérations d’investissement. / The contemporary law of conjugality is based on a principle of pluralism. Nevertheless, the notion of “couple” is increasingly significant. Indeed, marriage, civil partnership (PACS) and cohabitation appear as a reflection of a conjugality which claims to be plural and with gradual effects. But the latter is increasingly hindered by the unity of the notion of couple. Besides, the daily patrimonial relations of spouses, civil partners and unmarried partners are organised around the same principles: strengthening economic collaborations and assigning the appropriate patrimonial protection. Therefore it may be considered to introduce in the Civil code, de lege ferenda, a unitary definition of the notion of couple as well as a set of common rules for all couples, regardless of their form of conjugality. The daily patrimonial relations of all couples would subsequently be governed by the same rules according to the unity of the notion of couple. However, the unity of the notion of couple does not completely erase the principle of pluralism of conjugalities. Despite the convergence between marriage and civil partnership, both those institutional modes of conjugalities rely on different economic models. Indeed, set aside the daily patrimonial organization, in a marital situation each spouse is entitled to a participation in the enrichment achieved by the other during the union - whereas the participation of each civil partner in the other’s enrichment is strictly limited to the investment operations.

Matrimonial property regimes in Italian and Czech law Resumé This master thesis deals with matrimonial property regimes under the Italian Civil Code and the Czech Civil Code. This issue is significant not only from the perspective of spouses and their families, but also important for everybody who makes contract with a spouse. The purpose of this thesis is to analyse and compare Italian and Czech provisions related to marital property regimes and to point out similarities and differences between them. This thesis consists of an introduction, three parts that are further divided into chapters and a conclusion. The first part is an analysis of Italian provisions. It deals with the fundamental principles of the Italian legal system and matrimonial property regimes as codified in the Codice civile. First of all, it examines statutory community of property, marital assets (marital property, deferred community of property and liabilities), personal property and also deals with mandatory rules of the management of marital assets. Then it deals with contractual regimes, namely the separation of property, the property fund and other marital and prenuptial agreements. Subsequently, it examines the termination of community of property and the division of marital assets. The second part concerns the Czech provisions...