ADDRESS OF MR. L. E. BEAULIEU, K.C., LL.D.

In 1934 one of the most outstanding jurists of this country, the Honourable Newton Rowell, then President of The Canadian Bar Association and now Chief Justice of the Court of Appeals of Ontario, selected as the subject of his presidential address: «Our Heritage in the Civil and the Common Law.»

After having shown the characteristic features and differences of the two great systems of law which extend throughout the largest part of the civilized world, to wit: the civil law and the common law, Mr. Rowell concluded his address by saying:

Inspired by these last remarks, I beg leave to submit to your consideration a legal institution which forms part of our heritage in the civil law, that is to say the matrimonial régime which prevails in the Province of Quebec and is known as «The Community of Property.»

Much has been said and written about the question, not only in my own province, but also in the common law provinces, and what has been said and written was not always laudatory. The system was described as mediaeval, autocratic and unfair to women; and social reformers of both sexes have loudly proclaimed that it should be discarded.

I realize that I am dealing with a contentious matter; but I hope that it is nevertheless one of those topics which, under the constitution of our Association, the President is entitled to discuss.

And, in order to clarify the atmosphere, I wish to state at once that I am not preaching for the introduction of the Quebec system in the common law provinces. I merely wish to show that our legislation, respecting married women, is not altogether unworthy of a civilized country.

II

Now, in opening my case, I am faced at once with a very serious objection.

Under article 986 of our Civil Code, persons legally incapable of contracting are, amongst others, minors, persons interdicted for insanity or madness, and married women. Hence the conclusion so often drawned by our critics that in Quebec insane persons and married women are placed on the same footing.

But, under the Cities and Towns Act, persons who are disqualified from holding any municipal office are, amongst others, members of the Privy Council, members of the Judiciary, and persons convicted of treason. Yet, it was never contented that members of the Privy Council or of the Judiciary were thereby assimilated to traitors.

The law, like politics, sometimes makes strange bedfellows. The incapacity of married women and that of minors and of insane persons, although included in the same enactment, derive from totally different causes. Married women are not incapable by reason of the presumed weakness or insufficient development of their intellect. In fact, in all matters appertaining to private law, unmarried women and widows are vested with all the rights and privileges enjoyed by men. And it has not so far been shown that the state of wedlock, by itself, constitutes a cause or creates a presumption of insanity.

The incapacity of married women is purely and simply a consequence of the authority of the husband over the family, including the wife. It merely consists in the fact that the wife must generally obtain the authorization of her husband in order to make valid contracts, and the necessity of obtaining such an authorization is one of the peculiarities of the common of property system.

III

What then is community of property?

It can be described in one word as the absolute opposite of the régime which prevails in the common law provinces and which is generally known as separation of property. In the other provinces of this Dominion, all the property of whatever description which the consorts may possess at the time of the marriage, or which they may acquire during the marriage, remains totally separate and each consort retains the ownership and management of his or her own property.

Community of property, on the contrary, is a partnership between husband and wife, placed under the exclusive management of the husband, wherein are put in common all the moveable property which the consorts possess on the day of the marriage, and all the property of whatever description they may acquire during the marriage, and whereunder the wife, at the time of the dissolution, will share equally in the assets, if the partnership has been successful; but may withdraw free from all partnership liabilities, if she so elects.

As appears from the definition, the matrimonial partnership does not necessarily include all the property of the consorts. It does not comprise the immovables or real property which may belong to them at the time of the marriage; nor does it comprise, broadly speaking, real property which may accrue to them, by gift or inheritance, from their respective families. Such immovables remain the private property of the husband, or of the wife, as the case may be. They are deemed to be family estates, which should revert to the family when the partnership is dissolved.

And so it may happen that, during the marriage, three different patrimonies will co-exist, belonging respectively to the partnership, to the wife and to the husband. However, in such a case all the fruits and revenues arising from these various assets will fall into the community.

Be this as it may, the partnership between husband and wife is a real partnership. The wife is not a servant, but a real partner. Her juridical personality is not merged into that of the husband, as was the case under the old Common Law, before the statutory enactments of 1857, 1870 and 1882, respecting married women's property. But she is the joint owner of the common fund and her interest therein is equal to the interest of the husband.

Although the Province of Quebec is the only province of the Dominion wherein the community of property is in force, yet I will not undertake to demonstrate that it is an original product of our land. It was organized in France, during the 13th century, for the purpose of reacting against what was then considered to be the disintegrating influence of the Roman Law, as it then existed, on the family. Under the old Roman Law, at a time when the matrimonial union was still defined as a «consortium omnis vitae» (Modestin, I Dig. de rit. nupt. 23-2), the wife could neither retain nor acquire during the marriage any property of her own. In fact, she was so entirely under the power of the husband that she became a member of the latter's family and the sister of her children. There was only one patrimony and it belonged solely and exclusively to the husband. (True it is that these were the consequences of the marriage «cum manu»; but this form of marriage was the general rule and marriage under a different form was considered an inferior union).

But during the last period of the Roman Republic, divorce became so frequent that marriage was no longer considered a life association; so much that, as was said by a moralist, women in those days no longer computed the years, as it was customary in the good old time, by the names of the consuls, but by the names of their successive husbands.

Under these conditions the old system whereby the husband became the sole master of the wife's property, as well as that of his own, could no longer subsist. It was replaced by a régime of complete separation of property, so complete indeed that, so far as their mutual interests were concerned, the consorts were really aliens.

Such was the legislation which largely prevailed in France during the 13th century. This legislation was considered as conflicting with the Christian ideas respecting the mutual confidence and co-operation which should govern the matrimonial relations, and gradually a new system - the community of property - was organized in various parts of the Kingdom of France, and more particularly in and around the heart of the country, that is to say, the City and Viscounty of Paris.

From France the new matrimonial régime was introduced into this province by the Ordnance of Louis the Fourteenth, which created the Sovereign Council of Quebec and whereby the laws and customs of the Kingdom of France were made applicable to this country, then known as New-France.

In our days, community of property obtains not only in this province and in France, but in nearly 50 jurisdictions, including Belgium, Holland and most of the South American countries, while Switzerland has adopted a somewhat similar system known as the union of property.

V

Now is such a régime to be commended, or condemned?

In the first place, it seems most logical that two persons who have freely decided to spend their life together should form a partnership. Life in common and mutual affection are incentives to common work and savings, and the matrimonial union is naturally strenghtened by a community of interests.

When hearts are united, the division line between what is yours and what is mine has a tendency to fade away.

In fact, even when the consorts are separate as to property, the distinction between the property of the wife and the property of the husband can hardly be maintained. The wife will as a rule, rely upon her husband to make her investments, collect her rents, manage her property; and she will not expect her husband to keep a regular set of books, in order to give an account of his stewardship.

Those who are engaged in the practice of law will no doubt bear me out when I say that, in this province, at least, what ever might be the marriage covenants, the property of the wife will ultimately be confused with that of the husband, save and except, of course, when matrimonial life has been a failure.

I will say more. Community of property is not only the natural consequence of a lifetime association; it is also, in most cases, I submit, more advantageous to the wife than separation as to property.

Young people starting in life are not, generally speaking, profusely endowed with the riches of the world. Again, generally speaking, the husband is the one who earns the money while the wife attends to the no less important duties of keeping the house and caring for the children. If the husband is successful in his calling, trade or profession, he will provide his wife during his lifetime, with all the comforts and possibly all the luxuries of life. He might even become a wealthy man. Such things, I am told, sometimes happen even in the legal profession. What then will be the lot of the wife, at the death of her husband?

If she is common as to property, she will take, in her own right as partner of her late husband, one-half of the property earned by the latter during the marriage.

If she is separate as to property, the husband may in his last will dispose of his entire estate in the manner he pleases. He may give it entirely to his children and then the widow will depend upon their good will - and they might be children of a first marriage. He may also give it entirely to strangers - there are such things as unfaithful husbands - and then the wife will fall in absolute destitution.

What, if the husband dies in intestacy? Two-thirds of his estate will go to the child, or children, and one-third only, instead of one-half, to his consort. The share of the wife may, it is true, under certain conditions be equal to one-half of the intestate succession of her husband, but these conditions are so numerous that they very seldom materialize in this way.

At all events, in the case of separation of property, whatever the wife receives from her husband's estate is subject to succession duties, provided, of course, the amount is sufficient; while her share in the community, because she takes it in her own right, is free from all such duties. And in our days, this is not by any means an unimportant consideration.

VI

But, does the system now under discussion protect the wife when she is herself earning money, in trade or otherwise?

Under section 1425(a) of our Civil Code, the proceeds of the personal work of the wife, in whatever occupation, as well as all property acquired by investing these proceeds, constitute what is called the reserved property of the wife.

This reserved property is left to the untrammelled administration of the wife. She can claim it before the courts, appear in all suits or contestations relating thereto and alienate it by sale or similar acts, without the necessity of any authorization of her husband.

Broadly speaking, marital authority and the incapacity resulting therefrom, do not apply to the reserved property of the wife.

But what, if the wife is rich and the husband without means, at the time of the marriage? If the assets of the wife consist of real property, she will retain them in full ownership. If they consist of movables and the wife does not wish them to fall into the partnership which normally would result from the marriage, she has only a simple formality to fulfil: the passing of a marriage contract. For the community of property is the legal régime in the province of Quebec, in this sense that it applies ipso facto, in the absence of prenuptial covenants. But the consorts are never forced into community. They are free to modify at will, even to discard entirely, if they so desire, this legal system and to adopt in its place the separation of property which obtains in the common law provinces.

VII

Community of property, as already stated, is a partnership under the exclusive management of the husband.

Why not under the joint management of the consorts?

The difficulty resides in the fact that this partnership consists of two members only. It has been said by a French humorist that the chain of wedlock is so heavy that it sometimes requires the joint efforts of three persons to bear it. But in law, such a conception is not even considered.

Now, when a partnership is composed of two persons only co-operation is either too easy or impossible. There is no middle course. One of the two must give up, or otherwise the only solution left will be separation or divorce.

If the concurrence of both consorts is required, so that one cannot act without the consent of the other, then, instead of one, there will be two incapable persons. The condition of the wife will not be improved and the difficulties of management will be greatly increased. (In our days, more than ever, profitable operations, whether they be sales, purchases, or repurchases, require swift action).

In the conjugal partnership, duality of control would only breed anarchy.

As a matter of fact, the partnership between husband and wife is not the only one wherein the management is entrusted to one partner only, and it is far from proven that a multiplicity of managers is the safest road to success.

Unity of command has been tried in other fields and found advantageous to all concerned, and what was said of the house divided against itself, must always be fresh in our memory.

But, if one manager is enough, why not the wife?

At first sight, it seems rather hard to compel a woman to play the part of the silent partner. However, if one takes a broad view of the situation, it seems undeniable that, generally speaking, the husband is better equipped to deal with the outside world in matters affecting the community, and to act as the agent of the family, in external affairs. After all, nature has its own laws, under which men and women have been assigned different tasks in life. Women are not inferior to men; they are different. Being different, they have different duties to perform and to different duties must normally correspond different rights.

VIII

It is said that the powers enjoyed by the husband over the affairs of the community are too extensive.

There are indeed very wide. They include, in effect, the right to sell, alienate or pledge the common property, without the concurrence of the wife. The husband may even, within certain limits and under certain conditions, give away, without the consent of the wife, the assets of the community, provided he acts in good faith and without fraud.

In fact, it has been said that the husband is the lord and master of the community.

But then, what is the juridical condition of the wife? In the first place, it must be remembered that the proceeds of the personal work of the wife, whether she is engaged in trade, in some professional activities, or otherwise, remain under her exclusive management.

Moreover, there exists a field wherein the wife plays a most important part: the purchase of all necessities of life for herself and for the family, including, in many instances, the husband himself.

No man, of course, not even a civilian, would think of depriving women of the joys of shopping.

In all these matters, the wife is deemed to be the general mandatory of the husband and the debts contracted in the performance of this implied mandate are chargeable, not to the wife or against her personal property, but to the community.

Again, there is the legal theory and there is the common every day practice. If in law the husband is lord and master of the community, one must remember what was said by a great jurist, speaking of the perpetual guardianship imposed upon women by the old Roman Law: «Our laws, said this jurist, have placed our women under the authority of guardians; but, in fact, women have managed to place their guardians under their own authority».

Finally, the wide powers of management conferred upon the husband are compensated by special privileges granted to the wife.

In the case of an ordinary partnership, the participation in the profits carries with it an obligation to contribute to the losses. When the matrimonial partnership is dissolved, on the contrary the wife has an option to exercise: she may accept or renounce the community.

If the partnership has been successful, she will no doubt accept and then she will get one-half of the assets of the community, after payment of the debts. But, if there is a loss, she may renounce and then she will be freed from all contribution to the debts of the community. Her exemption even extends to those debts which she may have incurred, jointly and severally with her husband; for the wife who binds herself, either with or for her husband, is bound only in so far as she retains the quality of common as to property.

All these debts the husband or his legal representatives will have to bear alone. Sole manager of the community, the husband must make good the losses resulting from his mismanagement, or perhaps misfortune; and his legal representatives are in the same position.

Although freed from all liabilities, the wife will nevertheless be entitled to keep her reserved property; also her real property, if it still exists in kind, or the price thereof, if it has been sold during the marriage. She might even, in certain cases, claim indemnities for the losses suffered; and, in all cases, she is entitled to charge to the heirs of her husband the cost of her mourning.

The law goes a step further. Even if she accepts the community, the wife will only be liable for its debts to the extend of the benefits derived therefrom. Partner with respect to profits, the wife is no longer a partner when there is loss to bear.

IX

But, the wife can renounce the community only at the time of its dissolution, which normally takes place at the death of one of the consorts; and at that time all the assets of the community might be dilapidated, if the husband is a bad manager.

This possibility has been forseen. The wife may put an end to the husband's management, at any time, if it proves detrimental to her interests.

Under section 1311 of our Civil Code, separation of property can be obtained when the interests of the wife are in peril, or when the disordered state of the husband's affairs gives reason to fear that his property will not be sufficient to satisfy her rights, and generally when it appears just and necessary that the separation be granted to safeguard the wife's interests.

Our courts have always given to this enactment a broad construction, in favour of the wife. When a separation is obtained, the community is dissolved and the wife regains the entire administration of her own property, including her share in the community.

The rights and interests of the wife are further safeguarded.

Under section 2029 of our Civil Code, married women have a legal hypothec (or privilege) «for all claims or demands which they may have against their husbands on account of whatever they may have received or acquired during the marriage by succession, inheritance or gift...»

This privilege must, it is true, be registered on the property of the husband, in order to become effective. But the husband is bound to have it registered, on pain of punishment, as for misdemeanour, and of being liable for all damages. And if the husband is not of age, his father, mother or guardians are bound to effect this registration, «on pain of being held liable for all damages in favour of the wife.»

X

In view of the foregoing, I think I am justified in concluding that the community of property, as it exists in Quebec, can favourably be compared with other institutions governing the relations between husband and wife, which obtain in other countries. If it is true that, under this régime, the consorts are not placed on an equal footing, then it is the husband who has cause to complain. In fact, when the French laws were codified and the judges of the various provinces were consulted, a large number of magistrates from Southern France objected to the community of property, on the ground that it was unfair to the husband.

As a last word, I beg leave to refer to a paper written by the Honourable Charles Lobingier, head of the Civil and Comparative Law Department of the National University of Washington, and published in the American Bar Association Journal, in April 1928. Pointing out that several American states had introduced the régime of the community of property in their legislation, the learned Judge said: «Is it not a subject for national pride that eight of our American states have already abandoned this provincial and individualistic system for one [the community] which has become so nearly universal throughout the civilized world?»