|Reference: Marital Property Regimes|
Community property (United States) or Community of Property (South Africa) is a marital property regime under which most property acquired by a spouse during a marriage (except for gifts or inheritances), is owned jointly by both spouses and is divided upon divorce, annulment or the death of a spouse. Community property is premised on the theory that marriage creates an economic community between the spouses (who may be same- or opposite-sex); and that the marital property attaches to that interpersonal community, rather than to the spouses themselves
Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate, and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the end of the marriage. Matrimonial regimes are applied either by operation of law or by way of prenuptial agreement in civil-law countries, and depend on the lex domicilii of the spouses at the time of or immediately following the wedding. (See e.g. Quebec Civil Code and French Civil Code, arts. 431-492.). In most Common law jurisdictions, the default and only matrimonial regime is separation of property, though some U.S. states, known as community property states, are an exception. Also, in England, the birthplace of Common law, pre-nuptial agreements were until recently completely unrecognized, and although the principle of separation of property prevailed, Courts are enabled to make a series of orders upon divorce regulating the distribution of assets.
Separate property systems
Separate property systems are based on the premise that marriage is solely an interpersonal union
• Separate Property: All property, pre-marital or marital, is owned separately. (French séparation de biens, Spanish separación de bienes, Dutch scheiding van goederen, koude uitsluiting, German Gütertrennung, Italian separazione dei beni)
• Separate Property with Equitable Distribution: Under this system, when substantially more property acquired during a marriage is owned by one spouse (e.g. title to all marital property is held in the husband's name only), the courts will make an equitable distribution of the richer spouse's property at death or dissolution of the marriage. The object is to prevent widow(er)s and divorce(e)s, and their minor children, being cast into poverty by the death or divorce of the richer spouse.
• Accrual System (South Africa) or Deferred Community Property (Canada): Marital property is separately owned during the marriage, but after marriage (divorce, death of a spouse), the net assets are lumped together as property in joint tenancy and divided. (French participation aux acquêts, Spanish participación, Dutch deelgenootschap, Afrikaans aanwasbedeling, German (standard) Zugewinngemeinschaft, (Swiss) Errungenschaftsbeteiligung, Italian partecipazione agli acquisti, Portuguese (Brazil) participação final nos aquestos).
• Tenancy by the Entirety (United States): "TBE" is a separate property system in which spouses are treated as one person, each having an equal ownership interest in the subject property. In some U.S. states, tenancy by the entirety is limited to realty (e.g. the couple take title to the family home as tenants by the entirety) while other states make it available for both realty and personality (e.g. the couple can also take title to the family automobile as tenants by the entirety).