Article by Robert A. Pascal
Louisiana Act 627 of 1978 repeals Title VI of Book III of the Louisiana Civil Code, on the marriage contract, and provides for new matrimonial regimes and related legislation as part of title 9 of the Louisiana Revised Statutes, containing legislation ancillary to the Civil Code. This new legislation seems to have been intended to be a tentative draft of provisions to be given final form and content in the 1979 legislative session. The legislative subcommittee charged with drafting the new laws, its advisory committee that in fact prepared the original drafts, and the legislature itself all apparently realized that the new laws are seriously defective in substance and in form. Thus, section 9 of the Act states that some provisions shall not be effective until sixty days after the end of the 1979 legislative session (probably September 6, 1979) and that the new matrimonial regimes themselves shall not go into effect until January 1, 1980, well after the completion of the 1979 legislative session. Senate and House Concurrent Resolutions 140 and 232 of 1978 provide that both the joint legislative subcommittee appointed in 1977 to draft the new legislation and its advisory committee of professors and lawyers are to continue in existence; and those resolutions require the advisory committee to submit its further proposals for review by the Louisiana State Law Institute, which in turn is to deliver its recommendations to the joint subcommittee at least thirty days before the convening of the 1979 legislative session (March 17, 1979).
The main features of the new legislation are as follows:
1. Beginning sixty days after the 1979 legislative session, persons already married may at any time and as often as they wish enter into an express marriage contract either modifying their existing regime or terminating it and prescribing a new one of their choice or of their own confection. The provisions of the expressly contracted regime may be made retroactive as between the spouses and even for the benefit of their creditors, but not to the prejudice of the acquired rights of third persons. This is a severe alteration of existing law.
2. Beginning January 1, 1980, persons subject to Louisiana law who marry without entering into an express marriage contract will have as their matrimonial regime a new scheme called a community of gains that differs greatly in concept and in merit from the community of gains Louisianians have been privileged to enjoy since Spanish days.
3. The new provisions (or rather the legislated comments thereto) attempt to characterize the new community regime as one imposed by law rather than as contracted tacitly to the extent that its provisions have not been modified or rejected expressly in an express marriage contract. In this the legislature has attempted a logical impossibility and the characterization cannot be honored.
4. Beginning January 1, 1980, under a provision the writer judges to be unconstitutional, spouses married before that date who have not entered into an express marriage contract are to have the new community of gains as their matrimonial regime. The new regime is to be retroactive as between the spouses and for the benefit of their creditors, but not with regard to the characterization of assets or the validity of acts entered into before 1980.
Each of these major items will be considered in turn. Thereafter other aspects of the 1978 legislation will be discussed.
About the Author
Robert A. Pascal. Professor of Law, Louisiana State University Law Center.
Citation
53 Tul. L. Rev. 105 (1978)