Probleme der Zugewinngemeinschaft

On principle, the law on the equality of rights leaves it to the spouses to come to an agreement on their proprietary relationship, and it establishes a subsidiary statutory regime only if no marriage settlement has been contracted. Contractual freedom is the sole appropriate basis to lead to adequate handling of property problems in the field of matrimonial property regime; statutory regime without contractual freedom would have to be considered as a strong burden. Thus the task of the legislator consisted in creating a statutory regime which in as many cases as possible does justice to both the requirements of the spouses and to the concepts of value inherent in our legal order. The typical example for the applicability of the statutory regime is a marriage contracted by a young couple, in which no appreciable property exists initially, in which property accrues during the marriage, and in which death, usually that of the husband, dissolves the marriage. If the proprietary situation is such that it requires eo ipso a settlement by special convention, the legislator may leave it to the spouses to arrange the situation with respect to matrimonial property regime by means of a marriage settlement. üf the systems of statutory regime, from which a choice could be made, neither separation of goods as such nor the various types of community of goods could be taken into consideration.