Advantages of spouses' property regimes in light of the Austrian Civil Code and Swiss Civil Code

• Author: Doc.-D-r. Emine Zendeli
• Position: Faculty of Law, South East European University
• Pages: 153-159

ISSN 2410-759X Balkan Journal of Interdisciplinary Research Vol 1 No 1

Acces online at www.iipccl.org IIPCCL Publishing, Tirana-Albania May 2015

153

Advantages of spouses’ property regimes in light of the Austrian Civil Code

and Swiss Civil Code

Doc.-D-r. Emine Zendeli,

Faculty of Law, South East European University

Abstract

is paper aims to take the analysis of property regime of spouses in the Austrian and Swiss

Law, trying to highlights similarities and dierences between them, but also to dierentiate their

advantages in terms of regulation of property relations of spouses. Traditionally, both systems have

determined the legal property regime. Legal property regime for spouses which serves Austrian

property regime is divided, while spouses in Switzerland are subject to Swiss legal property regime

by participating in making property (Errungenschasbeteiligung). In none of the systems

mentioned spouses are bound by any condition subject to legal property regime, furthermore,

because of the fact that the legal property regime in any case may not be adequate to divergent

situations that may arise in practice, so Austrian spouses and even Swiss ones, have created free

space for their contracted property regime, and to select the property regime that responds to the

specics of their relationship.

Key words: Property regime, spouses, common property, separate property.

Introduction

Despite the conceptual dierences which have characterised most important European

codes of the nineteenth century and early twentieth century (the French civil code,

the Austrian, German and the Swiss), the solutions oered by the property regimes for

spouses have been similar, and can be summarised as follows:

(1) the position of the husband in marriage has been favoured;

(2) spouses could choose one of the numerous existing regimes if they were not set on any

of them:, by default they are bound by a legal regime;

(3) the dowry regime has been particularly important in all laws;

(4) the assumption existed that movable assets which existed in the dwelling were property

of husband, except items that have served for women’s personal needs;

(5) husbands had the right to use and manage common joint property and women’s

property (under special conditions);

(6) women had ‘the right of the key’;, there was an undeniable assumption that the

woman was authorised on behalf of the husband to take up all the jobs that were related

to household needs (Mlladenović, 1981, 636)

With the advancement of women’s social position, which was reected by the laws on

gender equality between men and women in the civil area, respectively, by the constitutions

of some European states which raised the equality between men and women to the level

of fundamental human rights German law in 1958, (Gesetz über die Gleichberechtigung

von Mann und Frau auf dem Gebiete des bürgerlichen Rechts (Gleichberechtigungsgesetz

– GleichberG) Vom 18. Juni 1957, Zuletzt geändert durch art. 127 Erstes G über die

Bereinigung von BundesR im Zuständigkeitsbereich des BMJ vom 19. 4. 2006 (BGBl. I S.

866)) the Austrian right from the constitution from 1920, namely with the state contract

from 1955, (Bundes-Verfassungs-Gesetz 1920 Österreich, Art. 7 und Staatsvertrag von