The Law of Community Property, Part 1

Part one of a four part article series

Monday, July 20, 2015 | 7:17 pm

Over the course of the next several articles I will be discussing the law of community property. What is it? Where did it come from? How does it work? I hope that this information is helpful in understanding a very fundamental principle of California law.

The principles of community property law founds its origins in the Visigoths invasion of the Iberian Peninsula following the collapse of the Roman Empire in 554 A.D. Unlike Roman law, Visigoths law, Forum Judicum, gave women equal rights with men to own property. Community property law was encouraged during the Reconquest of the Iberian Peninsula from the Moors to encourage woman to settle in the frontier area and as a result that many of their husbands were killed during the wars. With the final conquest over the Moors by Ferdinand and Isabella community property was exported to the New World by Spanish explorers and the Catholic church.

Community property law traveled to Alta California through Spanish settlement which later became a part of Mexico. Following the Mexican American War in which all land north of the Rio Grand river was ceded to the United States in 1848, Alta California became a territory of the United States. A constitutional convention was formed to prepare for statehood when almost concurrently gold was discovered at Sutter’s mill. Two reasons emerged at the convention to continue with the principle of community property law in the new state.

One was to perpetuate property law as a barrier against anticipated change through the immigration of thousands seeking gold. The second was the disrepute of the common law system of marital property as oppressive to women and feudal in nature. For these reasons community property became a fundamental principle in California property law.

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