Table of Contents
CHAPTER III – OF THE SEPARATION OF PROPERTY
Art. 86. The wife may, during the marriage, petition against the husband for a separation of property, whenever her dowry is in danger, owing to the mismanagement of the husband, or otherwise, or when the disorder of his affairs induces her to believe that his estate may not be sufficient to meet her rights and claims.
Art. 87. Separation of property must be petitioned for in and ordered by a court of justice after hearing all parties. It can in no case be referred to arbitration. Every voluntary separation of property is null both as respect third persons, and the husband and wife between themselves.
Art. 88. The separation of property, although decreed by a court of justice, is null, if it has not been executed by the payment of the rights and claims of the wife, made to appear by an authentic act, as far as the estate of the husband can meet them or at least by a bona fide non interrupted suit to obtain payment.
Art. 89. The separation of property obtained by the wife must be published three times, both in the English and French languages, in at least two of the newspapers which are printed in New-Orleans, at farthest within three months after the judgement which ordered the same.
Art. 90. The wife who has obtained the separation of property, may nevertheless accept the partnership or community of gains which has existed till that time, if it be her interest so to do, and by her contributing in case of acceptance, to pay the common debts.
She retakes besides, her dowry and all she brought in marriage or which fell to her, during the marriage, in effects hereditary or proper.
Art. 91. The wife separated in goods and chattels, has no tacit mortgage either for the indemnification of the debts which she has contracted jointly with her husband, since their separation or for the replacing of her hereditary estate alienated since the same time, and in cases where such mortgage takes place in her favor, it exists only from the day of said obligation or sale.
Art. 92. The separation of property does not impart to the wife any of the rights of a surviving wife, but she keeps the right of exercising them in case of the death of her husband.
Art. 93. The judgment which pronounces the separation of property, is retroactive as far back as the day on which the petition for the same was filed.
Art. 94. The personal creditors of the wife cannot, without her consent, petition for a separation of property between her and her husband.
Nevertheless in case of the failure or discomfiture of the husband, they may exercise the rights of their debtor to the amount of their credits.
Art. 95. The creditors of the husband may object to the separation of property decreed and even executed, with a view to defraud them, they may even become parties to the suit concerning the petition for a separation of property, and be heard against it.
Art. 96. The wife who has obtained the separation of property, must contribute in proportion to her fortune and to that of her husband both to the household expences and to those of the education of their children.
She is bound moreover to support those expences alone, if there remains nothing to her husband.
Art. 97. The wife separated whether in person and property or in property only, has again the free administration of her estate.— She may dispose of her moveable property and alienate the same.— She cannot alienate her immoveable property, without the consent of her husband, or if he should refuse it, without being authorised by the judge.
Art. 98. The husband is not answerable for not having laid out in the purchase of an equivalent estate, the value of the immoveables which the wife separated has alienated by virtue of an authorisation of the judge, unless he was a party to the sale, or it be proved that the money has been received by him or made use of to his benefit.
He is answerable for having not laid out the value of the said property in the purchase of an equivalent estate, if the sale has been made in his presence, and with his consent, but he is not answerable if such purchase be not advantageous.
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