What Causes Fundamental Legal Ideas? Marital Property in England and France in the Thirteenth Century

Categorizing broadly, the marital property systems of the Western nations today are divided into two types: those in which husband and wife own all property separately except those items that they have expressly agreed to hold jointly (in a nontechnical sense) and those in which husband and wife own a substantial portion or even all of their property jointly unless they have expressly agreed to hold it separately. The system of separate property is the “common law” system, in force in most jurisdictions where the Anglo-American common law is in force. The system of joint property is the community property system, in force in eight American states and many of the countries of Western Europe. From jurisdiction to jurisdiction, however, there is considerable variation in the distinction’s significance for the spouses’ powers to modify the system before marriage and to control property during the marriage and for what happens to property when the marriage dissolves. Further, the distinction between the two systems has blurred noticeably over the past generation. But despite the variation and despite the blurring, separate property and community property are quite different ways of thinking about property-holding within the family unit, one of those fundamental distinctions in legal ideas that affects the way legal results are reached, if not always the result itself.