Dissertations / Theses on the topic 'Marital property (Roman law)'

This thesis investigates two important and related aspects of Roman history during the period 217 B.C. - A.D. 70. Salient types of social legislation, in particular the leges sumptuariae, funerariae, aleariae, marital and sexual laws and magisterial edicts, form one element of the inquiry. The reasons for, and the extent of, the public regulation of the personal expenditure and private behaviour of citizens are explored under the changing political circumstances of the period. Another concern is to analyse the development of a prominent theme in the classical writers and historians, namely, the perspective of moral decline. The deep-rooted and pervasive pessimism evident in the historiographical tradition during a period of exceptional prosperity and imperial expansion is critically examined. The interaction between law and morality is a principal focus of this thesis. In chapter 1 (10-30), the general themes of the work are introduced. A review of the relevant scholarly literature is followed by a brief exposition of my methodology and objectives (11-13). Then a chronological survey of the important social regulations passed during the Republic and early Principate is provided (13-17). Chapter 2 (31-72) probes the ways in which legal enactments were presented both within governing circles and to the populace at large. The public interest was frequently invoked. Paternalistic concern, it is argued, was often advanced for that which was essentially self-regarding (31-36). A succinct account of the debate on decline in classical authors leads to a consideration of the mos maiorum (ancestral custom) and the role of myth in Roman historiography (36-46). The contemporary dispute between liberal and radical scholarship on the nature and function of law in society is summarized (46-50). In Ancient Rome, it is contended, the governing order's preferential access to the channels of public discussion was of decisive importance. It facilitated the expression of an ideological perspective which served to promote widespread acceptance of its legislative needs, as is exemplified by the passage of sumptuary controls so necessary for the well-being of the senatorial aristocracy in the second century B.C. (50-52). The socio-economic significance of Roman sumptuary laws is examined in chapter 3 (73-163). The main discussion is prefaced by a typology of sumptuary laws, designed to account for the existence of expenditure restraint in widely differing political systems (73-75). The inquiry proceeds, firstly, to investigate those regulations (esp. the iura and 1eges theatrales) which had a direct bearing on the structure of Roman society and, then, to explore the complexity of problems that the maintenance of this formal framework entailed for the authorities in periods of rapid social and economic change. A consideration of powerful social pressures and forces such as envy, emulative consumption and mobility, is complemented by a discussion of the diverse strategies employed by the Roman authorities to uphold hierarchical distinctions (75-107). Profit-capping, price-fixing, monopolies and rationing form diverse topics of an inquiry into the economic objectives of sumptuary restraint (108-119), Status requirements and the spiralling cost of political competition are held to account tor the divorce between the attitudes and practice of the members of the governing order with regard to luxus and Hellenistic practices (119-128). A detailed inspection of the sumptuary legislation passed during the Republic provides the core or chapter (164-210). The laws are assessed under separate categories, e.g. leges de sumptibus et de luxu mensae, funerariae, de habitu et tuitu, viariae (164-182). The techniques by which the aristocracy endeavoured to preserve cohesion amongst its ranks and thus to uphold its collective rule are scrutinized 182-2. In chapter 5 (211-259), attention is focused on how the Roman authorities attempted to compel obedience to these measures. The operation of extra-legal constraints is discussed c 211-2l4). A hypothesis of the development of Roman criminal law from its origins through to the early Principate is advanced with particular emphasis on the significance of senatorial participation in the juridical process and on the need to define accurately the competency of individual magistracies (214-239). The use of private informers (quadruplatores in the Republic, delatores in the Empire) is critically assessed (239-243). In chapter 6 (260-288), opinions and actions at variance with the conservative orthodoxy on historical development are evaluated. Resistance to sumptuary restraint surfaced in a variety of ways: in the formal abrogation of a measure; in technical dodges; in outright defiance (260-268). The ambivalences between publicly expressed ideals of conduct and actual practice came to a head in the adjudicative processes of the court. The mechanisms of forensic practice served to provoke maturer reflections on social change (269-273). Roman attitudes towards change are surveyed. It is argued that divergent opinions on ancestral tradition and on the propriety of innovation were often advanced in opposition to overzealous attempts at sumptuary restraint or in pursuit of specific political goals (269-279). Chapter 7 (289-329) concludes the work with a historical appraisal of the coincidence between the passage of sumptuary legislation and the debate on moral decline. Three major developments in the functioning of this coincidence are outlined: (1), its use as a regulatory device by the senatorial aristocracy from the early 2nd century B.C. onwards; (2), its use as a crucial source of legitimation by the aspiring politician-generals of the 1st century B.C.; (3), its use as a key disciplinary tactic by the imperial regimes from Augustus onwards (289-307). Finally, serious governmental incursions into central areas of social life during the early Principate - the suppression of criticism, legal scrutiny of knowledge and belief, restrictions on assemblage - are examined, and interpreted as evidencing the autocratic tendencies of the period (308-315). Four short appendices follow (330-361): the first outlines the major theories of decline (330-333): the second explores the terminology of inequality (334-339; the third surveys the major perspectives on social change (340-342); the fourth documents the manifestations of luxury in Roman society (343-361).

Texas law regarding the legal status of women and their property rights developed from the mingling of Spanish and English laws. Spanish laws regarding the protection of women's rights developed during the centuries-long Reconquest, when the Spanish Christians slowly took back the Iberian Peninsula from the Moorish conquerors. Women were of special importance to the expansion of Spanish civilization. Later, when Spain conquered and colonized the New World, these rights for women came, too. In the New World, women's rights under Spanish law remained the same as in Spain. Again, the Spanish were spreading their civilization across frontiers and women needed protection. When the Spanish moved into Texas, they brought their laws with them yet again. Archival evidence demonstrates that Spanish laws in early Texas remained essentially unchanged with regard to the status of women. Events in the history of England caused its legal system to develop in a different manner from Spain's. In England, the protection of property was the law's most important goal. With the growth of English common law, husbands gained the right to control their wives's lives in that married women lost all legal identity. When the English legal system crossed the Atlantic and took root in the United States, little changed, especially in the southern states, when migrants from there entered Texas. When these Anglo-American colonists came into contact with Spanish/Mexican laws, they tended to prefer the legal system they knew best. Accordingly, with the creation of the Republic of Texas, and later the state of Texas, most laws derived from English common law. From Spanish laws, legislators adopted only those that dealt with the protection of women, developed on the Spanish frontier, because they were so much more suitable to life in Texas. Later lawmakers and judges used these same laws to protect the family's property from creditors, as well as to advance the legal status of women in Texas.

Modem developments in technology, connnerce and the cultural industries pose problems for intellectual property in Sri Lanka, as everywhere. Case law may be used for judicial guidance but there are comparatively few reported cases from the Sri Lankan courts. By examining Sri Lanka's juridical history and Constitution, together with constitutionally recognised Buddhist principles, it is possible to suggest further sources of guidance for judges. Using the proposed framework, it may be possible for the judges to apply existing law to new situations and avoid the need for constant legislative change in an attempt to keep up with developments and comply with Sri Lanka's international obligations. The extent to which such guidance may be useful is explored by looking at specific issues, which have caused difficulty in other jurisdictions. It is hoped that the proposed techniques could be used to build up a body of Sri Lankan jurisprudence. Ms may prove more stable and effective than incremental legislation. 'Status juris - 'Mis study (unless otherwise stated) based on material available as at 0 1.12.2004 and the law in force on that date.

Nothing much has changed in the Law of Family in Peru. The main doctrine argues that it is not possible to make agreements between spouses on non-economic aspects of their relationships or their duties with their children, even when they could make decisionsin a more convenient way.In the article, the author argues that it is desirable to relax the rules on agreements between spouses or prospective spouses to regulate their rights during marriage or the benefits and obligations of each one in case they end their marriage. In that way, the author alludes to the figures of prenuptial and marital agreements present in American reality.
Poco ha cambiado en el Derecho de Familiaen el Perú. La doctrina mayoritaria sostiene que no es posible realizar acuerdos entre es-posos sobre aspectos no patrimoniales de susrelaciones o de sus deberes ante los hijos, auncuando se podrían adoptar decisiones de unaforma más conveniente.En el artículo, el autor sostiene que es conveniente flexibilizar las normas sobre los acuer- dos entre futuros cónyuges o esposos para regular sus derechos durante el matrimonio o los beneficios y obligaciones de cada uno de ellos en caso concluya la unión matrimonial por cualquier razón. Para ello, hace alusión a las figuras de los acuerdos premaritales y maritales presentes en la realidad estadounidense.

Ao longo de seu texto, o Código Civil de 2002 não traz o vocábulo comissório ou quaisquer de suas possíveis flexões gramaticais. Na doutrina e jurisprudência pátrias, entretanto, ele é aplicado exaustivamente quanto à proibição prevista nos artigos 1.428 e 1.365 do mencionado diploma legal. Grosso modo, tem-se em tais dispositivos a impossibilidade de que, após verificado o inadimplemento da obrigação principal, possa o credor insatisfeito conservar para si, na condição de proprietário, a coisa entregue em garantia. Ainda que reproduzida em diversos códigos modernos, especialmente naqueles de tradição romano-germânica, essa vedação ao chamado pacto comissório é um tema pouquíssimo estudado. A necessidade de uma maior reflexão sobre seu conteúdo, no entanto, é cada vez mais evidente. Isso porque, como demonstram pesquisas recentes no âmbito da literatura comparística, há indícios de que a regra tem por base fundamentos que não mais se justificariam. A esse propósito, vale salientar, o estudo do direito romano é fundamental. Afinal, nele a lex commissoria foi criada e por séculos teve aplicação no âmbito dos direitos reais de garantia, até ter sido proibida pelo Imperador Constantino (C. Th. 3, 2, 1; C. 8, 34, 3), no século III. O presente trabalho, portanto, tem por objetivo central a reconstrução e análise do instituto antigo, para que então com mais segurança seja possível delimitar, em que medida, pôde a lex commissoria romana influenciar a proibição do pacto comissório nos atuais ordenamentos jurídicos, em especial, o brasileiro. Para tanto, deve-se notar, em um primeiro momento, que separar a lex commissoria objeto da mencionada decisão da mais consagrada lex comissória no âmbito da compra e venda, recepcionada no livro 18 do Digesto e ainda largamente aceita nos sistemas modernos, não é tarefa das mais fáceis. Tendo a proibição sido anterior à compilação do Corpus Iuris e, igualmente, tendo a própria fiducia cum creditore sido extinta por volta do século II, escassos são os testemunhos nas fontes que chegaram até os nossos dias.
Throughout its text, Brazilian Civil Code of 2002 does not have the word \"comissório\" or any of its possible grammatical inflections. In Brazilian doctrine and jurisprudence, however, it is applied thoroughly as the prohibition laid down in Articles 1,428 and 1,365 of that statute. Roughly speaking, we have in such provisions the impossibility that, upon inspection of the default of the principal obligation, unsatisfied creditors could keep for themselves the thing given as a real security (pledge), provided being the owner. Although reproduced in many modern codes, especially those of Roman-Germanic tradition, the prohibition of the so called pacto comissório is a topic rarely researched. The need for further reflection on its contents, however, is increasingly evident. This is because, as recent research into comparative literature shows, there is evidence that this rule is based on essentials that would no longer be justified. In that regard, it is worth mentioning, the study of Roman law is fundamental. After all, in it the lex commissoria was created and for centuries it had been applied under the provision of security until it was banned by Emperor Constantine (C. Th. 3, 2, 1; C. 8, 34, 3) in the 3rd century A.D. The present study, therefore, has as its central objective the reconstruction and the analysis of that ancient institute, so that more safely it will be possible to delimit to what extent could the Roman lex commissoria influence the pacto comissório in current legal systems, in particular the Brazilian one. Therefore, it should be noted at first that to separate the lex commissoria, object of the aforementioned ban, from the established lex commissoria under purchase and sale, as disposed in Book 18 of the Digesta and still widely accepted in modern systems, it is not an easy task. Since the prohibition was prior to the compiling of the Corpus Iuris and also having the fiducia cum creditore been extinct sometime around the 2nd Century, testimonies in sources that have come down to our day are scarce.

The aim of this dissertation is to illuminate the interplay between female agency and legal regulation in Sweden during the period 1760-1860. The material chosen for the study relates to matters concerning women that were brought before the Judiciary Inspection, the highest legal authority in Sweden. From its central position in the state hierarchy, this court was an arena in which the central power could identify and find solutions to problems important for the stability and development of society. The study identifies issues that encouraged women to bring proceedings before the court, or prompted other parties to bring women to court. The dissertation has analysed the actions taken and arguments made in these cases by women, their counterparts, and court representatives, in relation to the regulations or the absence of regulations in each particular situation. This has shown the room for manoeuvre that could be achieved, and how the women could achieve it – in terms of right to manage property, economic agency and debt responsibility, finding ways to support themselves and their families, or affirming their positions as mothers and mistresses of households. In this way, the dissertation illuminates the freedom of agency in practice that has often been seen as contradictory in a strictly patriarchal society like early modern Sweden. The dissertation also traces some important changes over time, including the increasingly diverse class background of litigants over the period in question, shifts in understandings of property, work, family, and the meaning of legal majority. The central diachronic claims are firstly that the legal system shifted over time from one primarily based upon status, circumstance, and local opinion to one based on formalized understanding of the law founded upon contract and clear legal definitions, and that this had important implications for women’s room for manoeuvre in the courts and in society. Secondly, that the negotiation process contributed to historical change by forcing solutions to contradictions and specifying terms of property ownership and legal majority.

The movement of people from county to country brought about an increase in international marriages. However, South African private international law rules with regard to the proprietary consequences of marriage are not on par with their foreign counterparts. The prejudicial rule which governs proprietary consequences of marriage has raised difficulties for our courts in past and recent cases. The advent of a new constitutional dispensation in South Africa forbids discrimination based on sex, gender and marital status. Furthermore, the question is asked whether parties to a marriage with a foreign matrimonial domicile may rely on section 7(3) of the Divorce Act 70 of 1979. The classification of redistribution orders in private international law matters has given rise to uncertainty. The objectives of the study are to suggest workable alternatives to the current connecting factor for proprietary consequences of marriage in South African private international law and to investigate the availability of redistribution orders to spouses applying for divorce in South Africa.
Private Law
LL. M.

碩士
國立臺灣海洋大學
海洋法律研究所
97
Abstract The matrimonial property regimes shall center on the issues of the treatment or distribution of either the husband’s or wife’s assets when the marriage is flawed or terminated (including the case with the spouse’s death). They concern not only the rights of the married couples but also those of trading counterparts. The existing Family Law specifies both the statutory and contractual property regimes, and theoretically the statutory property regime is “supplementary.” That is, only upon the absence of a contract between spouses or on the condition that the contract is nullified or cancelled shall the statutory property regime be applied. However, most married couples in Taiwan fail to adopt the contractual property regime due to their lack of the legal knowledge, or uncertainty about any changes in their assets during the continuance of their marriage, or concerns for potential impact of drawing up a contract on their marital relationship. Thereby, the statutory property regime prevails and is of greater significance than the contractual regime in Taiwan. It has become the normative basis of the proprietary relationship between spouses during the continuance of their marriage. Accordingly, the statutory property regime is the focus of this research. This thesis is structured as follows. Chapter 1 illustrates the research motive, objective, methodology, and scope. Chapter 2 outlines the history of the statutory property regime by expounding the origin of the matrimonial property regimes, principles of legislation, and differences between the old and new systems. Chapter 3 discusses and assessing the previous statutory property regime by exploring such issues as how to define the scope of joint property, identify joint property ownership, attributing ownership of the property in the wife’s name prior to the amendments, as well as the issues pertaining to management, disposal, use of and profits from joint property and the effects upon termination of relations of joint property. Chapter 4 makes a further inquiry into the existing statutory property regime, focusing on the issues concerning attribution of matrimonial property ownership, management, disposal, use of and profits from matrimonial property, settlement of debts under the matrimonial property regimes, disputes over the provision with regard to an agreed amount of money paid by one at the other’s disposal, the nature of the right of claim for distribution of remaining property, the necessity of its exclusivity to the spouse, as well as protection and exercise of this right. Chapter 5 compares and contrasts the stipulations of Taiwan with those of Germany, Switzerland, the US, and China in the hope of shedding light on their advantages and disadvantages. Chapter 6 examines the existing statutory regime of Taiwan by addressing some problems with identification of pre-marital and marital property, and with application of the provisions concerning the right of claim for distribution of remaining property, and some issues such as whether gifts between spouses should be presumed as the gratuitous acquisition of property stated in Article 1030-1 of the Civil Code, what the scope of the obligator stated in Article 1030-3 is, and the applicability of the provision concerning the right of claim for distribution of remaining property upon the spouse’s death and its resolution. Chapter 7 generalizes a conclusion from the foregoing chapters by proposing suggestions for future amendments, discussing the educational value of related legislation which should keep up with the times and which, with amendments to the untimely stipulations, helps stabilize marital relationships and thereby contributes to the peace and progress of society.

This study looks at the role of women in the economic environment of Roman Egypt in the light of the papyri. By examining marriage and inheritance documents from the first three centuries, the study shows that marital and inheritance laws and customs in Roman Egypt were made to protect women’s interests when it came to ownership and possession of property, which is one of the main reasons why women played such a prominent role in Egypt’s economic environment.

Text in Afrikaans
In hierdie ondersoek is navorsing gedoen oor die Romeinse huweliksverhouding ten einde vas te stel of die klassieke Romeinse reg die Romeinse vrou se huweliksverhouding beskerm het indien dit deur haar man se wangedrag geskend is. Die navorsing het getoon dat, soos in die Suid-Afrikaanse reg, die Romeinse huweliksverhouding teen die klassieke tydperk 'n consortium omnis vitae met veral morele huwelikspligte was en dat die nie-nakoming van hierdie pligte op wangedrag en skending van die huweliksverhouding neergekom het. Daar is tot die gevolgtrekking gekom dat, soos in die moderne reg, ook die Romeinse man die huweliksverhouding kon skend deur wangedrag, beperkte vorme van seksuele wangedrag, iniuria en bigamie. Die klassieke Romeinse reg het egter nie aan die Romeinse vrou direkte regsbeskerming verleen by die man se skending van die huweliksverhouding deur wangedrag nie. Sy het egter wel indirekte regsbeskerming in die vorm van toevlugof afskrikmiddels (soos egskeiding en die dos) geniet.
In this study research has been done on the Roman marital relationship in order to determine whether classical Roman law protected the Roman wife's marital relationship if it had been breached by her husband's misconduct. Research has shown that by the classical period, as in South African law, the Roman marital relationship was a consortium omnis vitae with primarily moral marital duties. Non-compliance with these duties amounted to misconduct and breach of the marital relationship. It was concluded that, as in modern law, the Roman husband too could be in breach of his marital relationship through misconduct, limited forms of sexual misconduct, iniuria and bigamy. However, classical Roman law did not grant the Roman wife any direct legal protection where her husband was in breach of the marital relationship because of misconduct. She nevertheless enjoyed indirect legal protection in the form of deterrents (such as divorce and the dos).
Law
LL.M.

The recognition in law of pension benefits and expectancies, as a matrimonial asset which may be subject to certain claims (and counterclaims), occured in South Africa in 1989. The starting point of this development was an investigation in 1984, on: "the possibility of making provisions for a divorced woman to share in the pension benefits of her former husband ". This investigation came about, in South Africa, after the matter had already been accepted, in many foreign legals systems, as a well-established, and most important concept of family law. The obvious question for the South African legislature was which of the pension-sharing schemes throughout the world would best serve as a model. Since the South African accrual system was largely based on the German Zugewinngemeinschaft, it seemed only natural that a close comparative study should be made of Germany's Versorgungsausgleich scheme. It is one of the aims of this thesis to point out whether and to what extent South Africa followed the German example. To do so, it will be necessary to examine first the different legal situations which were prevalent before and after the legal changes in the two countries and to elaborate on the reasons which led to these changes. The discussion in chapter three of how the German system of equalisation of pension expectancies, the so-called Versorgungsausgleich, is applied, will facilitate a comprehensive comparison with the South African scheme. The questions to be answered in the fifth chapter are whether it is appropriate to examine the equalisation of pension expectancies under South African law, which was only recently introduced, in a comparison with the German system and whether it is possible to speak of a Versorgungsausgleich when referring to the South African situation. Whenever possible, I have attempted to suggest solutions that may appear acceptable. To conclude the thesis, certain pension sharing problems arising under South African private international law will be briefly commented upon.
Private Law
LLM

Substantive gender equality has yet to be achieved in South Africa. As such, when a decision is made for one of the spouses to a civil marriage to stay at home and care for the children born of the marriage, or make career sacrifices to care for children, that spouse is usually the wife. As a result, while the husband continues to amass wealth and grow his earning potential, the wife is unable to do so. In circumstances where such spouses are married out of community of property or subject to the accrual system with onerous exclusion clauses in the antenuptial contract, the wife may be left with little more than a claim for rehabilitative maintenance in the event of a divorce. The courts only have the discretion to make an equitable distribution of marital property in civil marriages with complete separation of property concluded prior to 1 November 1984 (or 2 December 1988) and customary marriages. It is arguable that this limitation of the judicial discretion violates the equality clause contained in the Constitution of the Republic of South Africa, 1996. A broad judicial discretion to equitably redistribute the spouses’ assets upon divorce is therefore proposed in this dissertation.
Private Law
LL.M.

The aim of my thesis is to analyse the new legal regulation of community property included in the "new" Czech civil code - Act No. 89/2012 Coll. - and in this connection, to focus mainly on the settlement after its termination. The new legislation of this issue is quite brief and there are many questions arising in this context which are not clear. The thesis is composed of nine chapters. Chapter one characterises the legal term of the community property and its basic features. Chapter two describes marital property relations in a historical context, beginning with their roots in the Roman law and continuing with particular historical periods of legal regulation of these relations on the territory of the current Czech Republic. Chapter three outlines an extent of the community property and its governance in the statutory arrangement. Chapter four is concerned with contractual modifications of the community property and with an arrangement established by a court decision. A part of this chapter also investigates a question of protection of third parties in the connection with the community property. Chapter five deals with possible ways how the community property terminates. It explores both the ways of the termination of the community property although marriage continues and the ways of the...

Zusammenfassung Diese Diplomarbeit befasst sich mit dem ehelichen Güterrecht; einem Thema, das sowohl für den Alltag der Ehegatten wichtig ist, als auch für diejenigen, die mit einer verheirateten Person rechtlich handeln. Die Arbeit richtet sich vor allem auf den Vergleich der gegenwärtigen rechtlichen Regelung, am 1. 1. 2014 in Kraft getreten, mit der vorherigen Rechtsregelung. Diese Arbeit besteht aus drei Teilen, die in Kapitel unterteilt werden, sowie aus der Einleitung und der Schlussfolgerung. Der erste Teil behandelt die historische Entwicklung der rechtlichen Regelung der Vermögensbeziehungen zwischen Ehegatten auf unserem Rechtsgebiet seit der Gültigkeit des Allgemeinen bürgerlichen Gesetzbuches vom Jahr 1811, über das Gesetz über Familienrecht vom Jahr 1949, bis zum bürgerlichen Gesetzbuch vom Jahr 1964, wirksam bis 31. 12. 2013. Der zweite, zugleich wichtigste und umfangreichste Teil analysiert ausführlich das eheliche Güterrecht im bürgerlichen Gesetzbuch vom Jahr 2012, das mit dem 1. 1. 2014 in Kraft getreten ist. Die einzelnen Kapitel befassen sich mit der Gütergemeinschaft einerseits was Entstehung, Auflösung, Vergleich und Schutz dritter Personen betrifft, andererseits was die Regelungen betrifft, denen sie sowohl vom Umfang als auch verwaltungsrechtlich unterliegen kann. Diese sind: die...

The bulk of the matrimonial property regimes operating in Botswana were inherited from the country's colonial past. Since independence there ha'> not been any realistic attempt to reform them. The thesis set out to appraisal the legal regimes governing the determination of matrimonial property on divorce to ascertain their efficacy in realising the legitimate aspiration of married couples. Comparisons were made with similar countries to determine how these have tackled problems relating to determination of matrimonial property on divorce. The study found that where there is a dispute about matrimonial property in marriages out of community, the courts have no discretion to readjust the rights of the parties. This situation adversely affect nonworking wives who spent most of their time looking after their husbands and children without being able to acquire capital assets. Recognition is not given to such domestic contribution to the welfare of the family. It was also found that the exercise of the marital power by husbands of marriages in community of property deprives wives of those marriages the right to administer the joint estate. The patriarchal nature of customary law, which governs the majority of disputes about matrimonial property, discriminates against women. Consequently, the following, inter alia, are suggested as reform measures. (a) The courts should be g1ven a wide discretionary power, circumscribed by statutory guidelines, to reallocate matrimonial property on divorce irrespective of the matrimonial property regime that governs the marriage. TI1e underlying principle should be equality of sharing but this may be departed from where the circumstances of the particular case warrant it (b) A spouse's domestic contribution towards the welfare of the family should be recognised. (c) The marital power of husbands should be abolished. (d) The provisions of the Matrimonial Causes Act should be made applicable to customary marriages.
Private Law
LL.D.

Because women are predominantly responsible for childcare, men are the primary income earners. Having acquired the marital assets, on divorce the husband would retain them in a marriage out of community of property. The wife would be left deskilled, financially dependent, with little likelihood of receiving spousal maintenance and with no marital assets. In 1984 the Matrimonial Property Act and in 1988 the Matrimonial Property Law Amendment Act introduced a judicial discretion to equitably redistribute marital assets in certain marriages out of community. This dissertation argues that the bases for the limitation of the judicial discretion to women married before a certain date are unsound and that the limitation arguably violates the equality clause of the Constitution.
Law
LL.M.

The topic of my diploma thesis is "Law regulating property of spouses". The diploma thesis concerning marital property law is focused mainly on community property. This institute comes into power as a result of entering into a marriage. The aim of the diploma thesis is to describe ways how to secure separate property of spouses in a marriage. The thesis consists of seven chapters, the first chapter is an introduction to this topic and the seventh chapter is a conclusion. The second chapter of my thesis is devoted mainly to the historical development of the community property since 1811 to the current legislation often called as the "new" Civil Code (no. 89/2012). The diploma thesis describes in its third chapter which property consists of community property and which property is excluded from community property. The fourth chapter is focused on a division of community property in case of dissolution of a marriage. Community property can be divided equally between spouses (a husband and a wife) or differently. Spouses can agree on the division of property or it could be decided by court ruling. If either of the spouses does not ask for court decision, the division of community property is achieved by legal presumption (the rules set in the Civil Code for the division of property used after certain...

During the long eighteenth century, married women in England were subject to the rules of coverture, which denied them a legal identity independent of their husbands and severely curtailed their acquisition, possession and disposition of property. There is a consensus among historians that married women circumvented the restrictions of coverture both in their daily lives and by use of the legal mechanism of the separate estate. This study reviews contemporary legal and social attitudes towards women’s property rights in marriage to examine the extent to which married women had economic agency under coverture. Through a review of reported cases, treatises on the law of property, and a contemporary fictional representation of pin-money, I assess the foundations justifying the law of coverture, and the challenges presented to coverture by the separate estate. I argue that there is a distinction between the theory and practice of the separate estate; the separate estate must be understood as a type of property set aside for a special purpose rather than a type of property separated from a husband’s control. More precisely, the existence of the separate estate generally, and pin-money in particular, did little to advance married women’s economic agency.
Graduate

Thesis (LLM. (Labour Law)) -- University of Limpopo, 2013
This mini dissertation relates to the payment of divorce benefits to a former spouse upon divorce and recent amendments that have taken place in the Pension Funds Act 24 of 1956.Particular reference is made to the amendment of Section 37D.This amendment has brought about changes that will contribute positively to the development of South African Retirement Law. The discussion below deals with the unfairness to non-member former spouses before 1st November 2008. An analysis of pension interest taking into account relevant statutory provisions and case law will be dealt with as well. A classification between a member spouse and a former spouse in order to determine who is responsible to pay tax upon divorce. In terms of the Divorce Act 70 of 1979 the former spouse of a retirement fund on divorce could be awarded by the court a portion of the benefits that the member would have received had she/he resigned on the date of divorce. The former spouse was only entitled to receive that share when the member became entitled to a benefit in terms of the rules of the fund which states on his/her retirement or termination of membership which could have been many years after the date of the divorce. Dissolution of Customary marriages will also be discussed and the benefit a divorced spouse has at the dissolution of marriage.

A comparison of the property regimes of spouses in Czech and French law The aim of this masters thesis was to compare property regimes of spouses in Czech and French legal systems. The thesis is dealing with different aspects of "marital estate regime" under the Czech Civil Code, "legal regime" under the French Civil Code and the "legal regime" under the new Czech Civil Code effective from 2014 In addition, the aim was also to examine whether the legislators of both countries based the legal texts on similar premises. In cases of missing positive legal norms, the thesis examined whether practice or case law leads the legislators to conclusions similar or completely different in the respective legal systems. The secondary objective was to compare existing and new Czech Civil Code and evaluate the progress in the approach to the institute of marital estate. The marital property law has to face traditionally two interests, namely individual interest of each spouse and the common interest of the conjugal union. It is important to reconcile these two interests to such extent that common interests will be given sufficient protection, but on the other hand, to extent not as restrictive as to cause aversion to the institution of marriage itself. The thesis is composed of four chapters, each of them dealing...

The South African concept of freedom of testation is one of the most absolute concepts of freedom of testation in westernised legal systems. It is suggested that the South African concept of freedom of testation is a memento of capitalist patriarchy. As the South African legal system practices a nearly absolute concept of freedom of testation, capitalist patriarchy has maintained masculine control of property in South Africa and perpetuated the systems of male dominance prevalent in South Africa. Freedom of testation allows for wealth to pass from one male to another. It also allows entrenched gender roles to continue by excluding women from inheriting. Thus the South African law of testate succession and its central concept of freedom of testation allows for discrimination on the ground of gender.
Jurisprudence
LL.M