Article by Hans W. Baade
In the recent case of Wilkinson v. Wilkinson, the Supreme Court of Louisiana referred to parallel articles of the Code Napoleon and to French doctrinal writers in aid of interpretation of provisions of the Louisiana Civil Code relating to marriage contracts. This reference to French law, "as if it were a source of Louisiana law" on the subject, was emphatically "regretted" by Professor Pascal, an eminent authority on Louisiana family law. Professor Pascal stated his position quite categorically: "Both the Louisiana law of marriage and that of the marriage contract are most certainly Spanish rather than French in substance and import."
The issues raised by that assertion are of considerable moment. On the more practical and immediate level, marriage contracts continue to be an important element of Louisiana family law. The Civil Code devotes no less than sixty-one articles to "the various kinds of matrimonial agreements." Matrimonial property regimes arising by operation of law are dealt with much more briefly and on the premise, as is apparent from the sequence and even the title of the pertinent Code provisions, that the typical Louisiana family lives under a contractual rather than the statutory regime.
This assumption may not, or no longer, be accurate statistically, but the legislature has recently demonstrated a strong interest in contractual matrimonial property regimes. As required by Act No. 693 of 1975, the state attorney general has prepared, and officers issuing marriage licenses now furnish the prospective spouses, a "printed summary of the then current matrimonial regime laws of this state." That statement emphasizes the
possibility of contracting expressly a regime of one's choosing before marriage, the conclusive presumption of law that spouses who have not entered into a marriage contract before marriage did contract tacitly the community of gains, and the impossibility of contracting after marriage to modify the matrimonial regime which the spouses expressly or tacitly contracted at marriage.
In view of this recent expression of legislative policy, it is likely that Louisiana courts and counsel will frequently face questions arising out of contractual dispositions of matrimonial property. They will receive little assistance from United States common law authorities, for the notion of the "marriage contract" as a permanent, individualized arrangement of the matrimonial property regime of discrete family units is not familiar to common law attorneys. The expression "marriage contract" is likely to suggest to them, if anything, either a contractual undertaking to create marital status, such as a nineteenth century "marriage bond," or a metalegal consensual arrangement currently in vogue among some marriage counselors and family court judges, in which the spouses agree to respect one another's own personal relationships. It will therefore become necessary, once again, to recur to civil law principles, traditions, and antecedents peculiar to Louisiana.
In more general terms, this task has been much facilitated, in the last four decades, by the publication under the auspices of the Louisiana State Law Institute of English language civil law treatises and monographs. To the extent that these publications are translations rather than original contributions, they have up to now been selected exclusively from among the leading French doctrinal authorities. These translations have been used by the Supreme Court of Louisiana to aid interpretation of Code provisions having textual equivalents in the Code Napoleon. Wilkinson is, at base, another illustration of this vital endeavor to secure a broader jurisprudential basis for a civil law system that is otherwise quite isolated in the continental United States.
But praiseworthy as it may otherwise be, this jurisprudential orientation is legitimate only if, and to the extent that, the civil law of Louisiana is derived from that of France. In his comment on Wilkinson, Professor Pascal has directly challenged that basic premise. His contention that the Louisiana law of marriage in general and of the marriage contract in particular is "most certainly Spanish rather than French in substance and import" readily fits into his more general thesis about the sources of Louisiana civil law and of the Digest (Code) of 1808. That codification, Professor Pascal contends, was based not on French but Spanish law. Thus, the methodology employed in Wilkinson and Professor Pascal's criticism thereof serve to focus attention not only on the practical and immediate problem of the historical and doctrinal foundations of the Louisiana law of marriage contracts, but also on the much more fundamental issue of the derivation of Louisiana's civil law system.
This study seeks to determine the historical derivation of Louisiana marriage contracts through an analysis of the contracts themselves. A more detailed justification of the approach chosen will follow this brief summary. Firstly, we are dealing with an extremely well-documented phenomenon that provides ready access to the "living law" of the area and the time. Secondly, the typical marriage contract in use in Louisiana under French rule contained a choice-of-law clause. The fate of these clauses at the establishment and termination of direct Spanish rule in 1769-1770 and 1803-1804 provides valuable insights into contemporaneous attitudes about the effect of changes of sovereignty on matrimonial property law. Thirdly, the French (Custom-of-Paris) and Spanish (Castilian) notarial form precedents for marriage contracts differed widely in their usual and permissible contents, as did French and Spanish folkways governing the conclusion of such contracts. Lastly, notarial form precedent was reflected in the nineteenth century codifications, so that these, too, can be traced to their "national" origins.
It is hoped the reconstruction of the "living law" of Louisiana matrimonial property under French and Spanish rule will not only help resolve the immediate problem posed by the Wilkinson case and Professor Pascal's criticism of it, but will also furnish new insights into the historical foundations of Louisiana's civil law system. Beyond that, on the eve of the tricentennial of notarial practice in Louisiana, it seems appropriate to recall the work of the pioneers of European legal culture in the Mississippi Valley. A special effort has been made, therefore, to identify the various local repositories of pertinent records available to Louisiana legal historians for further research into what was once the "living law" of French and Spanish Louisiana.
About the Author
Hans W. Baade. Hugh Lamar Stone Professor of Civil Law, The University of Texas. A.B. 1949, Syracuse University; LL.B., LL.M., 1955, Duke University.
Citation
53 Tul. L. Rev. 1 (1978)