MIGHT AND RIGHT IN MATRIMONIAL PROPERTY LAW: A COMPARATIVE STUDY OF ENGLAD AND THE GERMAN DEMOCRATIC REPUBLIC

This article compares two matrimonial property schemes: separate property (as in England and Scotland) and community of acquests (as in the GDR). I challenge the reasons given by the English and Scottish Law Commissions for rejecting the scheme of community of acquests; first, by demonstrating that their understanding of the role of contract in matrimonial property is inappropriate to the GDR scheme, and secondly, by analyzing the notion of ‘equal division’ of assets at the end of the marriage. I argue that matrimonial property rules should promote the mutual consultation and agreement of the spouses. This means that, contrary to the practice in England and Scotland, in formulating the rules we should concern ourselves as much with the effect they may have upon the relationship itself, as upon the mode of division of assets when the relationship ends. In comparing the GDR and English provisions with this major principle in mind, I conclude that the GDR scheme, although not without its difficulties, goes further towards achieving this than does the present English scheme. Finally, I show how the strengths and qualities of the two systems might be combined to provide a scheme of property rules which supports rather than distorts, the relationship between the spouses