Community property: a brief history

Most recognize that California is at the forefront of the legal community regarding community property legislation.

California Family Code, Section 760, states: Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.

California Family Code, Section 125, states: Quasi-community property’ means all real or personal property, wherever situated, acquired before or after the operative date of this code in any of the following ways: (a) By either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition. (b) In exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.

But how did these concepts of community or quasi-community property even get to California in the first instance? Like much of our Nation’s history, it came by boat.

It would be fair to say that property rights afforded to women in the context of humankind is a relatively short history. The Pilgrims first arrived in North America in 1620, founding the Plymouth Colony in what is now Massachusetts. Though fleeing religious persecution in England and Europe, they were not progressive thinkers as it applied to women by any stretch of the imagination. In fact, the colonies themselves, for all of their claims of self-governance and enlightenment thinkers on the rights of man (and, specifically, only a white man), were not overly progressive towards women (or anyone else). Raised under the English Common Law and still considering themselves British, the colonists adhered to a legal doctrine known as coverture for married women. While a married woman may have owned and inherited property, her husband was solely vested as the “trustee” of the property. Meaning the husband controlled the property without his wife’s approval or consent. Whereas a single woman could own, inherit, and maintain her own property.

New York and Maryland passed some of the first legislation regarding women and property rights in the early 1770s. In 1771, New York passed the Act to Confirm Certain Conveyances and Directing the Manner of Proving Deeds to be Recorded. This act, and a similar one passed shortly thereafter in Maryland, required a man to obtain his wife’s signature on any deed to her property before being sold or transferred. Maryland had an additional provision that required a judge to interview the woman in private to confirm the agreement for the sale of the property. (Lewis, Jone Johnson. “A Short History of Women’s Property Rights in the United States.” ThoughtCo, Aug. 26, 2020, thoughtco.com/property-rights-of-women-3529578).

In a famous letter written by Abigail Adams to her husband, John Adams, she wrote, “I long to hear that you have declared an independency. And, by the way, in the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember, all men would be tyrants if they could. If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.” Unfortunately, women’s community property rights would remain stagnant until the late 1840s.

In 1848, New York passed the Married Women’s Property Act and the Act Concerning the Rights and Liabilities of Husband and Wife in 1860. These laws expanded women’s rights to own property, receive gifts, and file lawsuits. They also recognized the rights of women regarding the care of their children. (Lewis, “A Short History of Women’s Property Rights in the United States.” supra) The New York law would become a model for other states and women’s rights, including those in the South. Building on earlier reform Acts of 1870, 1874, England afforded women the right to own, control, and sell her own separate property (along with other property rights) in 1882, when Parliament passed the Married Women’s Property Act. Though not giving women equal rights, the Act restored women’s individual identity as separate from their husbands and ended many of the binding effects of coverture on economic issues. (Norbert, Charles, “The Married Women’s Property Act, 1882: A Study of Victorian Reform” (1977). Masters Theses & Specialist Projects. Paper 2701.)

However, the true roots of present-day community property concepts harken back to the Visigoths, a tribe of Germanic people who lived west of the Black Sea. The Visigoths came to power in the 3rd Century and eventually expanded their empire throughout present-day Europe (then the Roman Empire) into Spain. (Mark, Joshua J.. “Visigoth.” World History Encyclopedia. World History Encyclopedia, 16 Sep 2019. Web. 20 Apr 2022). “At the time of the invasion of Spain by the Visigoths, around the year 414 A.D, the concept of community property prevailed among the Goths as an unwritten law. Traces of it have also been found among other Germanic tribes of that period in Central Europe. Moreover, the marital community has retained its place in the German law to this day and also prevails in various forms in France and Holland.” (Lowery, Walter, “The Spanish Community of Acquests and Gains and Its Adoption and Modification by the State of California,” California Law Review, Nov. 1912, Vol. 1, No. 1 (Nov. 1912), p. 32)

The Visigothic community property concept ultimately made its way into Spanish law. “The laws of Spain are not found in a single code or collection, but in a series of compilations, beginning with the Fuero Juzgo (A. D. 687-700).” (Id. at 34). The first written recognition of the marital community appears in the Fuero de los Jueces (Fuero Juzgo), one of the oldest Codes of Teutonic origin and the first national Code of Spain, dating back to 687-700 A.D. (Id. at 34).

The Spanish-American colonies were regarded as fiefs of the Spanish crown. “Laws enacted in Spain, decretos, cedulas were promulgated in the colonies in the name of the sovereign. In this way, the Spanish law of the community of gains and acquests became the law of Spanish-America, which included the province of California. It continued to be recognized in Mexico after that State, including the province of California, had become independent.” (Id. at 36). “The concept of community property came to Baja California and pre-dates California statehood. The law of community property of the Mexican Province of California became the law of the present State of California through Article XI Subdivision 14, of the first Constitution of California (1849) and the act of April 17, 1850, defining the rights of husband and wife.” (Id. at 32).

The recognition of a married woman as a separate juridical entity, apart from her husband, provided a system that was significant for women. “Under a traditional common law system, the ‘legal existence of the woman [was] suspended during marriage.’ In contrast, married women under a community property system, continued to enjoy a distinct legal personality separate from their husbands.” (Caroline B. Newcombe, “The Origin and Civil Law Foundation of the Community Property System, Why California Adopted It and Why Community Property Principles Benefit Women,” 11 U. Md. L.J. Race, Religion, Gender & Class 1 (2011), P. 30). “The recognition of a married woman’s right to own separate property protected a married woman’s property from her husband’s creditors. It also protected her property from a husband who might waste it by drunkenness and gambling. One legislator argued in favor of community property because, under a common law system, a wife might be forced to ‘sit weeping by, and see the whole of her property wasted in midnight frolics by a drunken or gambling husband.’” (Id. at 31-32). Present-day California Family Code, Section 770, continues to promote that policy. Section 770 provides that “(a) Separate property of a married person includes all of the following: (1) All property owned by the person before marriage. (2) All property acquired by the person after marriage by gift, bequest, devise, or descent. (3) The rents, issues, and profits of the property described in this section. (b) A married person may, without the consent of the person’s spouse, convey the person’s separate property.”

The earliest case addressing the history of community property in California is Panaud v. Jones, 1 Cal. 488, 536 (1851). Though the Panaud case revolved around a will contest dispute, the issue of community women’s property rights were addressed in the opinion. The Court noted that “By Mexican law, the wife, during the continuance of the marriage, has a revocable and feigned dominion in, and possession of, one half the property jointly acquired by her and her husband (gananciales); but the husband is the real and veritable owner, and has the irrevocable dominion in all the gananviales, and may sell and dispose of them at pleasure.” The Court went on, “[t]he law respecting the property of husband and wife in California has undergone but little alteration in consequence of the passage of the Act of April 17, 1850, defining the rights of husband and wife. Section 1 of that Act declares: All property, both real and personal, of the wife owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, shall be her separate property; and all property, both real and personal, owned by the husband before marriage, and that acquired by him afterwards, by gift, bequest, devise or descent, shall be his separate property. (Id. at 513). It is further provided in the same Act, Section 2: “All property acquired after the marriage by either husband or wife, except such as may be acquired by gift, bequest, devise or descent, shall be common property. The Panaud Court even relied on the Fuero Juzgo in rendering its decision. (Id. at 501).

Courts, recognizing the history of community property, noted that the “whole system by which the rights of property between husband and wife are regulated and determined is borrowed from the civil and Spanish law, and we must look to these sources.” (Packard v. Arellanes, 17 Cal. 525, 536 (1861). “The relation of husband and wife is regarded by the civil law as a species of partnership, the property of which, like that of any other partnership, is primarily liable for the payment of its debts.” (Id). “The law in his work on the civil law of Spain and Mexico, ‘recognizes a partnership between the husband and wife as to the property acquired during marriage.’ The same doctrine is laid down by many other writers, and such seems to be the universal understanding of the nature of the marital relation in matters of property as viewed by the civil law.” (Id). Though it should be noted that “during the marriage the husband is the head of the community, and the law invests him with discretionary power in all matters pertaining to its business or property.” (Id. at 538). So while there was recognition of community property rights, the actual ability to exercise those rights remained limited. Different facets of this community property concept were adopted in other states such as Texas and Louisiana around the same time period. (Id. at 540).

Through 1975, the laws on community property remained relatively unchanged since their original inception in the 1850s. “Under pre-1975 law, there was a marked disparity in each spouse’s respective powers of management and control. The historical justification for this disparity was that the wife usually remained the homemaker and the husband the breadwinner. Since the community assets were generally derived from the earnings of and property acquired by the husband, the management and control remained in his hands.” (Belan K. Wagner, California’s New Community Property Law-- Its Effect on Interspousal Mismanagement Litigation, 5 Pac. L. J. 723, Pg. 724 (1974). However, in 1975, with the enactment of Civil Code, Section 5125 (now Family Code, Sections 1100, et seq.), each spouse had equal power over community property and eliminated provisions that gave the husband greater power over the community property than the wife. (Reppy, William, “Retroactivity of the 1975 California Community Property Reforms, Vol 48:977, Pg. 981-982 (1975). The legislature declared that the wife’s interest in the community estate is “present, existing and equal,” and commencing Jan. 1, 1975, she had an equal right to manage and control the same.

The two last hurdles to community property laws came with the Domestic Partners Registry and same-sex marriage. Though Oregon was the first state to recognize a domestic partnership, California was the first to create a domestic partner registry. In 2007, California enacted Family Code, Section 297.5, which states: (a) Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses. Section 297.5(d) provides: The rights and obligations of registered domestic partners with respect to a child of either of them shall be the same as those of spouses. The rights and obligations of former or surviving registered domestic partners with respect to a child of either of them shall be the same as those of former or surviving spouses. Further, Section 297.5(k)(1) provides: For purposes of the statutes, administrative regulations, court rules, government policies, common law, and any other provision or source of law governing the rights, protections, and benefits, and the responsibilities, obligations, and duties of registered domestic partners in this state, as effectuated by this section, with respect to community property, mutual responsibility for debts to third parties, the right in particular circumstances of either partner to seek financial support from the other following the dissolution of the partnership, and other rights and duties as between the partners concerning ownership of property, any reference to the date of a marriage shall be deemed to refer to the date of registration of a domestic partnership with the state. With the recognition of same sex individuals to marry in California, Family Code, Section 300, was amended to reflect: (a) Marriage is a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary. (See In re: Marriage of Cases, 43 Cal.App.4th 757 (2008); Perry v. Schwarzenegger 704 F.Supp. 921 (2010); Oberfell v. Hodges, 135 S.Ct. 2584 (2015)). Thus, guaranteeing the same right and remedies available to all persons who were lawfully married.

So it is community property? It depends…