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Judge Johnson, in his notes to the Institutes of Aso and Manuel, has said that "the establishment of the right of ganancias, (or community property,) would seem to be one of the few institutions for the suggestion of which Spain was not indebted to the Romans.
It would appear that custom gave rise to the establishment in Spain of this right, and that the first recognition with which it was honored by the written law, was the notice taken of it in the Del 'Fuero Juzgo, and the rule was adopted and extended by the Fuero Viejo, Fuero Real, Ordenamiento Real and the Recopilacion."
The development of the community system was not confined to Spain alone. It seems to have been introduced into Holland and Northern France, either by the Spaniards or by the Goths, thence crossed the English channel and infected the laws of Scotland. From France it passed into Lower Canada: it existed also in British Guiana, the Cape of Good Hope and Ceylon. In all these countries it will be found that essential differences exist over the ganancial system or community of acquests and gains prevailing in Spanish territory.
The ganancial system of Spain, the grandparent of the system prevailing in our own state, is worthy of brief consideration as to its general characteristics.
The Spaniards possessed, as analogous to the separate property of the spouses under our law, in substance the “dotal system” of the Roman law, which gave the wife her dote and parafernales and the husband his arras. All other property was termed "ganancial,” bienes gananciales.
The right to ganancias is founded upon the partnership or society, which is supposed to exist between the husband and wife, because she brings her fortune (capitales) in dote, gift and paraphernalia, and he his in arras, wherefore it is directed that the gains ( ganancias,) which result from the joint employment of this mass of property, or capital, be equally divided between both partners. I quote from the institutions of Aso and Manuel.
To this marital partnership belongs all property, of whatever nature, which the consorts acquire by their own labor and industry; the fruits and income of the individual or separate property of the husband and wife; whatever the husband gains by the exercise of a profession or office, that is, as lawyer, judge, physician, etc., and the gains from the moneys of either consort, although the capital is the separate property of one of them. The money expended in improving separate property belongs to the community without affecting the separate rights in the property itself.
Escriche, comprehensively defines ganancial property to be “whatever the husband and the wife acquire during the marriage, and while living together, by a joint lucrative or onerous title, or that which the husband or wife, or either of them, during the marriage and while living together, acquire by purchase or by means of their labor or industry; as also the fruits of the separate property which each brings to the marriage, and of that which either acquires for himself by any lucrative title whilst the conjugal society subsists. It is the common property of the husband and wife, and belongs the half to each of them, although the husband has more separate property than the wife, or the wife more than the husband; although, one, after marriage, acquires more than the other, and, although, it be one alone, who by commerce or toil accumulates the property."
By onerous title, is meant that which is created by yaluable consideration, as the payment of money, the rendition of services, and the like; or by the performance of conditions, or payment of charges to which the property is subject. A lucrative title is created by donation, devise or descent.
Prima facie all property is presumed to be common, which is not proved to be the separate property of either spouse.
If the separate money obtained by one of the spouses. from the sale of separate property, be reinvested in the purchase of other property, or if separate property be exchanged for other property, the purchase or exchange remains the separate property of such consort and will not become ganancial.
The husband has the exclusive administration of the community, and may hypothecate or alienate it as he chooses, but he cannot alienate it maliciously (con Malicia) and in fraudulent diminution (en fraude ) of the ganancias..
The gains and losses being common, the debts which are contracted during marriage are to be paid out of the common property, but not those contracted before marriage or after its dissolution.
Upon the dissolution of the community by death or legal separation, the ganancias is to be divided equally between them or their heirs. The wife may renounce the community before, during, or after its dissolution and thus relieve her property from liabilitiy for half the debts.
The foregoing are the most essential characteristics of the Spanish ganancial system, and show us how closely our system of community of gains is related thereto.
The conquest of Mexico by the Spaniards and their acquisition of the Florida territory resulted in the introduction on American soil of the Spanish ganancial system. Louisana was, originally, a French colony, but was afterwards ceded to Spain, when the Spanish law was introduced, but again reverted to the French, and from them was acquired by the United States. The code of Louisiana has, with slight modifications, adopted the "dotal system” of the Code Napoleon, as regards the separate property rights of the spouses, but, as to their common property, it retained the essential features of the Spanish ganancial system.
Texas and California, being originally a part of the territory of Mexico before their acquisition by the United States, possessed the community system of Spain and Mexico, but, on the adoption of their constitution, it was provided that all property, both real and personal of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property, and laws were required to be passed more clearly defining her rights therein. These provisions had the effect to render inoperative the “dotal system” of the Spanish law in those states, and their legislatures, in conformity with these provisions of the organic law, gave the wife substantially the rights of a feme sole in all her separate property; hence, it is apparent, that the dote and arras of the Mexican law could serve no useful purpose, under a status which so fully emancipated the wife as to her property rights, and left the husband the same privileges as to his separate property.
Originally, the community law prevailed in Florida, and in all the Louisana territory, but has been superseded in Florida, Missouri, Arkansas. Iowa, Mississippi and all this territory except Louisana, by the common law.
The community system as adopted in the state of California has been borrowed by Nevada, Arizona, Washington and Idaho, with certain modifications; hence, the American community system prevails in Louisiana, Texas, California, Nevada, Arizona, Washington, Idaho and New Mexico, and is indebted to Spain for its origin.
To the lawyer whose mind has been trained under the common law, this system is, perhaps, embarassing and, possibly perplexing. The influence of education and association are such strong factors in coloring our tastes and ideas, that to some, the ganancial system of martial rights may meet with severe criticism, but whatever may be said of it, it presents many commendable features, which we would more readily expect to have originated in the most polished ages of social and political advancement, rather than out of the barbaric customs of the ancient Goths or of the Middle Ages; and, although, environed as it is in America, with the strong influence of the common law, as practiced by the courts and lawyers of our country, and its merits thus to some extent, obscured. It is confidently asserted that such environment cannot long impede the development of a system of law which yields to the wife in matters of property, an equality of interest and right with the husband, which Christian justice demands. Whatever
imperfections our system presents, are believed to exist partly in the modifications and statutory constructions not being in harmony with the principles upon which the relations thereunder have been established, and when better understood these objections will doubtless be removed.
This system is a marked advance over the marital rights of the earlier ages, and even over the jurisprudence of some of the most enlightened countries. “Experience," says Gibbon, “has proved, that savages are the tyrants of the female sex, and that the condition of woman is usually softened by the refinements of social life.” But under the customs of even refined antiquity the husband bought his bride from her parents, thus enabling her to exchange one kind of servitude for another. She acquired and inherited for the sole profit of her lord, and so clearly was woman defined, not as a person, but as a thing, that she might be claimed or replevied, like other personalty, by the use and possession of an entire year.
GENERAL CHARACTERISTICS AND PECULIARITIES OF OUR
The community legislation in Washington has, by a somewhat irregular course produced our present statutes. I take it for granted that the bar is familiar with the history and growth of our community property laws, since their introduction in 1869, and are fully acquainted with the provisions of existing laws upon this subject, a presumption which does not seem to me to be at all violent, since every active practitioner must have had occasion to explore the community laws for himself at some period or another of his work at the bar. I will, however, briefly call attention to the various acts of the territorial legislature antedating our present law.
Prior to the Act of Dec. 2nd, 1869, which was the first legislation in Washington territory upon this subject, the property rights of husband and wife were governed by the common law. Dower and Courtesy were not expressly abolished by this act, and the act was limited in its operation