LA SOCIEDAD DE GANANCIALES, EN GENERAL, Y SU LIQUIDACIÓN, EN PARTICULAR, EN EL CÓDIGO CIVIL DESDE 1889 HASTA 1981: EL CAMINO HACIA LA PLENA IGUALDAD DE LOS CÓNYUGES.

Abstract

The following paper was written because of the twenty-fifth anniversary, in 2006, of Act 11/1981 of 13 May amending the Civil Code in matters of filiation, patria potestas and the economic rules governing marriage. As far as the economic rules governing marriage are concerned (particularly marriage as a partnership holding community property), the time that has passed has been more than enough to permit analysis of the act's successes and mistakes, with the goal of improving future regulation. The way in which this anniversary is commemorated in this paper, however, is very different, as it will consist in looking at the act's precedents, i.e., the regulation under the Civil Code prior to 1981, as an homage to all those who fought long for equality and for the establishment of equality in the conjugal economy, and who finally made it real. Furthermore this reminder will serve not only to grasp the true significance and importance of the reform effected in Act 13/1981, but also to make it clear how the law, in its mission «to give to each his own», always strove to craft fair solutions, even on the foundation of social convictions and legal principles that were discriminatory and thus really not fair themselves. This paper remembers how in reality the consecration of the principle of equality between husband and wife within a community property partnership was a consequence of a series of reforms that, although based on inequality in practically every sphere, culminated in the act. So, in the article below, the reader shall see first the characteristic traits of this system, from its first regulation in the Civil Code until the reform, focusing especially on partnership liquidation as the moment when women won compensation for the discrimination they had undergone in society through (of course) yet another discriminatory structure, this time against the husband. Next is an exposition of how Act 10/1981 was forged, from the latest of the reforms and the new features the act itself introduced, in both the system of administration and the system of partnership liquidation, within a comparative study with the previous situation.