Quasi-Community Property in the Conflict of Laws
![handle is hein.journals/calr50 and id is 224 raw text is: Quasi-Community Property in the
Contlict of Laws
Herma Hill Schreter*
S INCE gold-rush days, California has been vexed with problems of apply-
ing her civil-law community property system to newcomers from com-
mon-law states. Delegates to the state constitutional convention who were
trained in common-law doctrines of marital property succeeded in writing
a married woman's property act into the California Constitution of 1849.1
However much it was to be desired for wives in common-law states, such
remedial legislation was inconsistent with a community property system.
The upshot of this initial encounter between the two systems was to set
California on a path that has left her with a hybrid marital property law
nearly as foreign to other community property states as it is to the com-
mon-law states.2
Subsequent encounters between the two systems were caused by mar-
ried couples who came to California from common-law states with property
acquired in their former domiciles. When these marriages ended in divorce
or death, California courts were called upon to dispose of the marital acqui-
sitions. Although California permits husbands and wives to hold property
in several different ways,3 their interests must ultimately be classified in
keeping with community property doctrine as either community or sepa-
rate. Common-law property, however, does not fit neatly into either of
these categories. The common-law system has no counterpart for the civil-
law concept of separate property, which is defined as all property owned
before marriage, and property acquired after marriage by gift, bequest,
devise, or descent In nearly all common-law states women acquire valu-
able rights in property already owned or thereafter acquired by their hus-
bands. Such property is not immune from the wife's potential marital
claims merely by virtue of the time7 or method8 of its accumulation. But
* Acting Assistant Professor of Law, University of California School of Law, Berkeley.
'Cal. Const. art. XXI, § 14 (1849) ; George v. Ransom, 15 Cal. 322 (1860).
2 McMurray, The Beginnings of the Community Property System in California and the
Adoption of the Common Law, 3 CALIF. L. REV. 359 (1915). See 1 ARmsTRoNG, CALIORNIA
FAwILY LAW 431-32 (1953) [hereinafter cited as ARasmoNO].
3 CAL. CIV. CODE § 161.
4 Siberell v. Siberell, 214 Cal. 767, 7 P.2d 1003 (1932).
5 CAL. Civ. CODE §§ 162, 163.
6MARSH, MARITAL PROPERTY iW Co cT or LAWS 11-67 (1952) [hereinafter cited as
MAResH].
7 The California courts did not, however, appreciate this difference. See Estate of Higgins,
65 Cal. 407, 4 Pac. 389 (1884).
8 MARSH 43-45, 226; Leflar, Community Property and Conflict of Laws, 21 CALIF. L. REV.
221, 226-27 (1933).](ViewImageLocal?handle=hein.journals/calr50&div=21&collection=&method=preview&ext=.png&size=3)
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Quasi-Community Property in the Conflict of Laws
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