Page:An introduction to Roman-Dutch law.djvu/123

 Rh MARRIAGE Ante-nup- tial con- tracts : degrees (But community continues so long as they are Cases in innocently ignorant of their relationship. If one party ^^^^ comes to know of it and conceals it from the other, com- munity of munity continues so far only as it is advantageous to |°ex-^ the innocent party — i.e. there is community of gains, but "i^ded. not of loss.) ; (2) when a minor has married without the necessary consents ;i (3) (most important of all) when community is excluded by ante-nuptial contract, of which we are next to speak.^ Section 4. Ante-nttptiax, Contracts No persons need marry in community of goods unless they wish to do so. It is always open to the spouses to exclude or modify the common law by ante-nuptial contract.^ ' Ante-nuptial contracts, being of wide appli- cation,' says Van der Keessel, ' can scarcely be otherwise defined than as agreements between future spouses and other interested persons regarding the terms or con- ditions by which the marriage should be regulated.' * According to Van der Linden, to be valid such a contract must be in writing ® and contained in a pubHc instrument, Supra, pp. 72 S. Van der Linden (1. 3. 8) adds ' when the parties have eloped ' (Placaat van de Staaten van Holland, Feb. 25, 1751 ; 8 G. P. B. 536). In all these cases one or both of the spouses are pre- cluded by way of penalty from taking any benefit under the marriage, whether by community or by ante-nuptial pact. Hoola van Nooten, vol. i, pp. 419-20. The general opinion is that the Edict of 1540 operates to the disadvantage of the major spouse only. Groen. ad Gr. 2. 11. 8 ; Van Leeuwen, 4. 23. 3 ; Voet, 23. 2. 20. Van der Keessel {Th. 218) dissents. ^ Community may also be put an end to by boedelscheiding, which may be decreed on the ground of prodigality {supra, p. 81, n. 6), or in the event of judicial separation (V. d. K. Th. 231. Vide infra, p. 99). The curious custom which allowed the wife to repudiate the community and by consequence the debts by ' going out before the bier ', (Gr. 2. 11. 18-19 ; Hoola van Nooten, vol. i, p. 463), is said by V. d. K. (Th. 226), to be 'multis statutis concessum,' and, therefore, does not make common law. ' Gr. 2. 11. 8 ; V. d. K. Th. 227. * V. d. K. Th. 228. ' V. d. L. 1. 3. 3. Writing was not necessary by the common law. Gr. 2. 12. 4 ; Cens. For. 1. 1. 12. 9 ; Voet, 23. 4. 2 ; V. d. K. Th. 229. Van der Linden's opinion that writing was necessary in his day is based upon certain Ordinances requiring ante-nuptial contracts to be sealed. But perhaps merely verbal agreements are not thereby forbidden. The authors of the Bechtsg. Obs. (pt. 2, no. 35) agree with Van der G2 Is writing necessary to their validity ?