Spousal Rights Research Articles

Zakhyst prava vlasnosti na maino, nabute u simeinykh soiuzakh, za zakonodavstvom Ukrainy ta derzhav Yevropeiskoho Soiuzu

In the scientific article, the author explores the peculiarities of legal regulation of protection of property rights to property acquired in marriage by spouses, in actual, religious marriage, other family unions by its members under the civil and family law of Ukraine and some European Union states. In particular, the author determined that in Ukraine and the leading states of the European Union legal regulation of the main methods and forms of protection of property rights is carried out in accordance with the general provisions of civil law with certain features to protect the property of spouses and family unions, illegal behaviour of one of the spouses. In this aspect, there is a dualism in the legal regulation of these issues regarding the protection of property rights of spouses: in legal relations with third parties are subject to general methods of protection, in legal relations between spouses — methods defined by family law. The protection of property rights of de facto spouses, spouses in a church marriage and partners in a registered partnership has a different legal nature in the European Union: some of them do not recognize these family unions and protection of property acquired in these unions is governed by general rules; the other part of the states recognizes features in protection of the property right to the property acquired in the specified family unions, fully or partially equating them on these parameters to protection of the property right to property of spouses. In particular, French civil law lays down a special procedure for the protection of spouses’ property rights and the extension to civil partners (including de facto spouses) of the general provisions of civil law on the protection of their property rights. The German Civil Code does not recognize the legal consequences of actual marital relations, as well as church marriages, and civil partnerships concluded before 2017 (the time of recognition of same-sex marriages) in terms of protection of property rights and obligations equates to a registered marriage. Czech civil law defines the same ways of protecting the property of spouses and civil partners, and the protection of property rights acquired by de facto spouses is regulated on a general basis in accordance with the provisions on joint property and the protection of civil rights. Latvian civil law recognizes the possibility of protecting only the right of ownership of property acquired in a registered marriage, without recognizing other family unions.

Практика реализации прав супругов в корпоративных правоотношениях

In modern business activities spouses often become participants in corporate legal relations. The potential holder of corporate rights to implement the rights belonging to him, within his legal marital status is sufficiently important for both the rights holder and other members of the economic society, as it is the opportunity to use its corporate rights in their interest and is meaningful to its legal status as a subject of corporate relations and marriage. The article defines the legal limits of the implementation of the rights of spouses in corporate legal relations, and makes suggestions for improving the legislation.

Disposal of corporate rights of spouses

The article is devoted to the analysis of ways to dispose of corporate rights of spouses. It is determined that the alienation of corporate rights, withdrawal from the company and exclusion of a participant from a legal entity of corporate type is a form of realization of subjective corporate law of the spouses by an order aimed at terminating corporate relations between the participant and corporate legal entity. It is proved that in case of alienation of corporate rights and withdrawal from a corporate legal entity by one of the spouses - a participant of a corporate legal entity, consent to termination of corporate relations between the participant and the legal entity of the other spouse is not required. Such consent is presumed by law. The other spouse agrees to contribute the property that is jointly owned by the spouses to the authorized capital of the corporate legal entity, as a result of which the latter has either the right to claim the property obtained as a result of alienation of corporate rights or withdrawal from the legal entity. The other spouse may also be entitled to compensation for half of the share in the authorized capital of the respective legal entity and half of the share of income received from its activities (in the case of division of joint joint ownership). It is determined that if one of the spouses is registered as a shareholder of a joint-stock company and the other of the spouses is not, then the alienation of corporate rights (shares), including redemption of shares by the company, may occur without the consent of the other spouse; if both spouses are registered as co-owners of the company's shares, their consent to the alienation of corporate rights (shares), including the repurchase of shares by the company, must be mandatory subject to the law in this area.

The Right Of A Husband (Wife) To Inherit At The Factual Dissolution Of Marriage

In many foreign countries today, the development trends of marriage and family show that along with the officially strengthened relationship between husband and wife, the factual relationship is also becoming more important. This in turn affects the couple’s right to inherit. The rapidly evolving processes of interstate integration and globalization make it necessary to improve the inheritance rights of couples in the law of succession, which is relatively conservative in nature. The aim of this research is to improve the existing inheritance law of the Republic of Uzbekistan by defining the criteria for declaring a marriage relationship between the spouses in practice and studying the scope of the spouses' legal rights to inherit in the event of the actual dissolution of the marriage. To achieve this goal, the following tasks have been identified: to clarify the status of the couple, to analyze the actual dissolution of the marriage as an obstacle to the exercise of the right of inheritance, development of proposals to improve national legislation on the rights of spouses to inheritance through the study of foreign experience.

Women’s Rights in the Qur’an, Sunnah and Heritage of Islam

Rights are means to spiritual, moral and intellectual wellbeing (insan sejahtera) of individuals be it men or women. Depriving one from the rights will lead to otherwise. Women are deprived from certain rights both by religious and non-religious members of a society. Family which was supposed to be the catalyst to secure and encourage the rights for women, became the biggest obstacle in fortifying the rights for the women. This deprivation is often seen as a religiously sound action. To clarify this misconception, this paper briefly presents a number of rights for women which has its roots in Quran, Sunnah and Islamic Heritage. Using literature study and content analysis, relevant verses of the Qur’an, hadith, and practices from the Islamic heritage is surveyed and analysed. The analysis show that Islam has always paid attention to education rights, special spousal rights, right to motherhood, right to possess own property, right to participate in economy and right to hold position in public office. Keywords: Rights of women, education rights, rights of spouse, rights to ownership, possession rights, public office, family institution.

Права супруга на доходы от личного имущества другого супруга

Права супруга на доходы от личного имущества другого супруга

Unequal Contributions: Problems within the Division of Shares in Joint Community Property

Abstract Marriage influences the economic rights of spouses when joint community property is created. When a marriage is dissolved, joint community property has to be divided. Each country sets different rules about how joint community property should be divided between spouses. Lithuania has chosen the presumption of equal shares in joint community property. Courts may depart from equal shares of spouses because of such important circumstances as interests of children, health state of a spouse, and personal income used to increase joint community property. However, courts have never departed from the equal shares principle due to differing contributions by spouses to matrimonial property. Meanwhile, other countries take into account contribution of spouses in order to divide property fairly and to protect the interests of the spouse who has contributed significantly to joint property, if the marriage was brief and the marriage produced no children. The impossibility to depart from equal shares to different contribution of spouses could increase the misuse of the institution of marriage and the unjust division of joint community property when the spouse who has not contributed to joint community property receives an equal share of it.

Creating Postfascist Families: Reforming Family Law and Gender Roles in Postwar East and West Germany

ABSTRACTAfter 1945 both German states overturned longstanding laws and policies from the nineteenth and early twentieth centuries that designated women as second-class citizens in spousal rights, parental authority and marital property. From the early postwar years, female politicians and activists in the women's movement pursued in both Germanys reforms of the obsolete marriage and family law. The article compares how these women and mainly male legislators in both states envisioned the role of women in the family and in gender relations. It shows that these debates in the FRG and the GDR were influenced on the one hand by earlier, pre-1933 ideas, and on the other hand reacted to Nazi-era politics. Yet, because of their different political, economic and social conditions, discourses and policies developed in the context of the Cold War in both states in different directions, though they continued to be related to each other.

THE PHENOMENON OF MARRIAGE IN THE CONTEXT OF SUSTAINABLE DEVELOPMENT

The marital relationship has been changing over time. The institution of marriage has become more democratic, following societal development. Marriage and divorce have lost their bureaucratic and moral obstacles. However, marriage has retained its role in the welfare of spouses and the evolution of society. Law protects the moral and economic rights of spouses. It should be noted, however, that the safeguarding of spouses’ rights and interests a priori concerns the rights and interests of third parties. This is the phenomenon of marriage. In a legal relationship, spouses are recognised as special right holders by default, which refers, for example, to insolvency proceedings, matrimonial property regimes and social rights. The research analyses the correlation between the trends of the institution of marriage and third-party rights in the context of the welfare of society. The objective of the research is to analyse the institution of marriage in order to trace its development in the modern world and establish how it affects third-party rights and public interests in general. The research employs methods of legal interpretation to analyse legislation and the inductive and deductive method to draw conclusions and formulate suggestions. Based on the results of the research, the institution of marriage is undergoing transformation. Marriage is losing its initial importance. Unmarried cohabitation is becoming increasingly prevalent. The biggest challenge is to balance the right to self-determination of a person choosing cohabitation and the public interest in legal stability and predictability, which are essential for the sustainable development of society.

Some Problem Aspects of Implementation and Protection of Property Rights of Spouses

The relevance of research on the problems associated with the implementation by spouses of enshrined in family law property rights and their protection in case of non-recognition, contestation or violation due to the fact that the property rights of spouses form the basis of the legal status of spouses and their implementation serves to strengthen the family’s the material well-being of both spouses and children. The purpose of the study is to identify gaps in legislation governing spouses’ property relations and to determine their impact on securing the enjoyment and protection of their property rights. Various methods of scientific knowledge were used in the research. Thus, the historical method was used in the analysis of the provisions of the Code of Laws on Marriage and Family of Ukraine, which regulated the property rights of spouses and determined ways to protect them. The comparative legal method was used to compare the norms of the CC of Ukraine and the FC of Ukraine governing alike or similar relations, in particular regarding shared ownership, invalidation of contracts and the like. Methods of analysis and synthesis were used to identify the shortcomings and gaps in current family law and in the practice of its application. On the basis of the formal-logical method, proposals for improvement of some provisions of the family law of Ukraine were formulated. The paper considers the general rule that a husband, wife disposes of the property, which is the subject of the joint property right of the spouse, by mutual consent. Another aspect of spousal property rights concerns the maintenance and legal regulation of a spouse. No less problematic aspect of the exercise and protection of property rights of spouses, which is considered in the paper, is the issue of property division. In particular, in case law, when considering cases of separation of property of a spouse, difficulties arise in the event of deviation from the principle of equality of spouses in the circumstances of significant importance. Such circumstances, which were analysed in the article, may be the reasons for both a decrease and an increase in the share of one of the spouses, including the former. The results obtained can be used to improve family law and the practice of its application, in further scientific studies concerning the property rights of spouses, as well as in teaching the course of family law in higher education

Property Rights of Nigerian Women at Divorce: A Case for a Redistribution Order

In Nigeria, marriage is hardly conceived as a partnership of equals in relation to the property rights of spouses during marriage and at divorce. This is because the Nigerian courts do not redistribute property at divorce. This leaves the financially weaker spouse (usually the wife) at an economically disadvantaged position. This article therefore compares the position of the matrimonial laws in England with that of Nigeria, whether there are provisions for the redistribution of property between the spouses at divorce. The comparative analysis reveals that family laws in England empower the family court to redistribute property amongst spouses at divorce. On the contrary, the matrimonial property laws in Nigeria provide for the settlement of property at divorce. The analysis also reveals that the courts in Nigeria adopt the strict property rights approach in ordering the settlement of property, which is detrimental to the wife. The article also makes a case for a redistribution through the economic analysis of the worth of a housewife. The authors therefore argue that the Nigerian courts should depart from this approach and borrow from the English courts. The authors recommend the amendment of the matrimonial property laws to fill this gap. That would enable the Nigerian courts to make a redistribution order, so as to vary the recognised property rights of spouses in order to provide compensation for any reasonable loss caused by marriage and ensure that the financial benefits of marriage are shared on a just and equitable basis.

MARRIAGE AND PROPERTY REGIME OF SPOUSES UNDER KOSOVO CURRENT LAW AND DRAFT – CIVIL CODE

The impact of marriage in the property rights of spouses has been recognized since Roman law and nowadays remains a principle well established under each European legal system. Under Kosovo law, marriage creates different legal consequences between spouses including for their property rights. The current property regime of spouses under the Law on Family establishes rules on individual ownership and joint ownership. However, it does not recognise the contract for the regulation of the property regime of spouses. This has created problems with regard to the separation of the property after the marriage ceases. Contrary to this, under Kosovo Draft Civil Code – Book 4 on Family, the property regime of the spouses has advanced including for the recognition of premarital and marital contracts. This paper discusses questions arising from the relationship between spouses that have an effect on property and are treated from a current law perspective and in line with the civil law codification that is occurring in Kosovo.

Property Rights of Spouses in Marital Relationships in Ghana- Is There the Need for Additional Legislative Intervention?

It is the inalienable right of every human being to live and enjoy life with all the provisions as nature permits. To this extent, enjoyment of rights with the view to sustaining the social cohesion include but not limited to the right to hold and own property. Property ownership and/or acquisition can be achieved solely as a single person and/or jointly with others. It is the view of the author that the most common means of property acquisition is during subsistence of relationships, especially marriages. Besides, the type of marriage one contracts does not actually determine the mode and means of property acquisition. Thus what appears to be apparent is that the marriage itself does not create any challenge during its subsistence within which property is acquired. The challenge erupts after the acquisition of more than one property coupled with the mutable, fluid and dynamic attitude of not only the couples but also their respective relations, friends and loved ones. Though the couples themselves may understand each other, the influence of their respective relations, friends and loved ones, has the potential of dislocating and dislodging the mindset of the couples to a very large extent that it can lead to the irreconcilable and irretrievable breakdown of the marriage. It is against this backdrop that this paper seeks to tease out the effect of the irreconcilable and irretrievable breakdown of marriage on the property or properties acquired during the subsistence of the marriage. The paper looks at the international conventions, protocols, agreements, vis-a-vis the domestic of laws of Ghana juxtaposing them with judicial decisions to make its findings and recommendations.

Принцип равенства прав супругов в семье: вопросы теории

Принцип равенства прав супругов в семье: вопросы теории

Corporate Rights Of The Spouses: The Essence Of The Legal Regime

The article is devoted to the question of legal regulation of corporate rights of spouses. The issues of the legal regime of marital property as well as the essence of the legal regime of spouses’ corporate rights have been discussed.
 It has been justified that upon investing marital property into the authorized share capital of a corporation which one of the spouses has ownership rights in, the rights of rem become the law of obligation (vinculum iuris). The law of obligation, incurred between spouses upon investing part of the shared property into company’s authorized share capital to participate in the authorized share capital, is based on the claim rights.
 It is noted that since the moment the company is registered with the State Registrar of Companies, such a company becomes a participant of civil law relations. The predetermined contribution (consisting of marital property) invested into the authorized share capital of a corporation becomes the property of the mentioned legal entity and is not subject to shared property of the spouses. Therefore, marital property as joint owned property becomes sole and separate property of the corporation.
 It has been proved that taking into account the indivisibility and the personalized nature of corporate rights, corporate rights cannot be subject to shared property of the spouses. This statement is supported by the fact that having the other spouse as a shareholder will lead to the increase in the number of shareholders.
 It has been explained that the legal regime of spouses’ corporate rights is subject to special legal regime, namely transformation of property rights. For that of the spouses who is a company shareholder, the right to property, which is being contributed to the authorized share capital of the corporation, becomes corporate right. For the other spouse, the mentioned above rights become claim rights.

Personal Non-property Rights of Spouses: Need in Legal Regulation

Personal Non-property Rights of Spouses: Need in Legal Regulation

The Need for the Statutory Introduction of the Concept of “Matrimonial Property” in Nigeria

AbstractThis article demonstrates how the application of the ordinary rules of property law in the determination of the property rights of spouses in Nigeria has been unfair to a financially weaker spouse (usually the wife). It calls for reconsideration of the present matrimonial property rights arrangement between a husband and a wife in Nigeria. It argues in favour of the statutory introduction of the concept of “matrimonial property” in Nigeria to apply both during marriage and at divorce. To give some background, reference is made to the South African matrimonial property system of community of property and the accrual system. The article proposes that a special category of property, known as “matrimonial property” and which emphasizes the equal proprietary rights of spouses, is recognized.

БРАЧНЫЙ ДОГОВОР КАК СПОСОБ ЗАЩИТЫ ПРАВ СУПРУГОВ В МЕЖДУНАРОДНОМ ПРОСТРАНСТВЕ

БРАЧНЫЙ ДОГОВОР КАК СПОСОБ ЗАЩИТЫ ПРАВ СУПРУГОВ В МЕЖДУНАРОДНОМ ПРОСТРАНСТВЕ

Имущественные отношения супругов как предмет правового регулирования гражданского и семейного права

Introduction. The unified “root system” of civil and family law is the objective reason for the relative unity of the subjects of their legal regulation. So the property relations of spouses are regulated by both civil and family law, which determines the need for their consideration in the interpenetration of these industries. Purpose. The purpose of the article is to identify the specifics of spouses' property relations and their legal nature, as well as performance evaluation of their regulation within civil and family law. Methodology. To achieve this goal both general and private scientific research methods are used: the comparative legal method, legal interpretation method, formal legal method, the method of complex analysis of legislation. Results. The authors of the article pay special attention to the analysis of certain types of property relations arising between spouses. The authors analyzes of the legislation of the Republic of Belarus, the Russian Federation and other EAEU countries and compare the points of view of scientists expressed on this issue. They identify four groups of property relations arising between spouses: relations on the affiliation of things and property rights of spouses; relations on transactions between spouses; relations arising in connection with the third party liability; relations of spouses on mutual material maintenance (alimony relations). Conclusion. The conclusion is substantiated that it is advisable to include only property relations between spouses in mutual content in the subject of legal regulation of family law. With regard to other types of property relations of spouses the authors expressed their opinion about the necessity of legal regulation of the rules of civil law rather than marriage and family law. Thus, it will help to avoid the duplication of regulatory requirements and the multiplicity of the same issue.

Sound the Shofar in Luxembourg

In March of 2017, the European Court of Justice (ECJ) received a preliminary reference from the Constitutional Court of Romania seeking guidance on the proper implementation of Directive 2004/38/EC, commonly known as the Citizen’s Rights Directive, and its applicability to same-sex spouses. This Article is the first to argue that a proper decision by the ECJ would force Member States to recognize—to an extent necessary for purposes of providing and protecting the fundamental EU Citizen’s right to free movement—marriages and equivalent partnership recognitions conducted and legally recognized in other Member States. This unique argument derives from a comparative analysis of Israeli jurisprudence, most notably the Israeli High Court of Justice’s ruling in Ben Ari v. Director of Population Administration. This Article explores the interpretation of Directive 2004/38/EC, which stipulates the freedom of movement for workers within the Member States is a fundamental right guaranteed to all citizens so long as certain employment criterion is met. This right, in general, extends to the immediate family and dependents of the worker who is asserting that right, meaning that in a heterosexual marriage, the husband or wife of a worker who decides to relocate to another EU Member State to work can move with their partner and live without major legal problems or immigration status concerns. While EU law currently guarantees these spousal rights, the definition of marriage is left to the individual Member States. In balancing the limitations of EU competences in the realm of family law against the need to protect fundamental rights of EU citizens, this article argues the ECJ could be guided by the Israeli High Court of Justice, which crafted an opinion mandating that the Israeli government record same-sex couples legally married abroad as “married” in the official population registry. This recording entitles the partners to prima facie evidence of their marital status, thus affording them the rights of married couples under Israeli law without constituting an official “marriage” under the laws of Israel. By combining the wisdom of the Israeli decision with the unique limitations of the EU, this article argues that the ECJ should require all Member States to acknowledge the prima facie validity of cross-border legal same-sex marriages only to the extent necessary to allow the Member State to provide the rights and protections guaranteed as fundamental under EU law.