We recognize, of course, that a husband or wife may orally transmute separate property into community property, and, even in the absence of an explicit agreement, written or oral, a court may find a transmutation of property if the circumstances clearly demonstrate that one spouse intended to effect a change in the status of his separate property. (Citations omitted.)
There are certain principles of law, now so thoroughly established that we need not fear that we are skating on thin ice if we venture upon them. In Woods v. Security-First Nat. Bank (1956), 46 Cal.2d 697, 701, it is stated, supported by a number of citations: "It is settled that the separate property of husband or wife may be converted into community property or vice versa at any time by oral agreement between the spouses." The change over may be made although the title to the property may remain of record in joint tenancy (Socol v. King (1950), 36 Cal.2d 342, 345, and cases cited), or, in the case of an automobile, in the name of one or other of the spouses. (Estate of Raphael (1953), 115 Cal.App.2d 525, 534.) Nor is it necessary, to convert separate property into community property, that the magic words "community property" be used. As revealed in Kenney v. Kenney (1934), 220 Cal. 134, 136, it was sufficient that the parties had orally agreed "... that all property then owned by them or subsequently acquired was to belong to them equally or, as respondent put it, 'fifty-fifty.' " Similarly, in Estate of Raphael (1949), 91 Cal.App.2d 931, 936-937, the husband's statement as related by his wife that "... everything he had was mine, and everything I had was his; that we were partners in everything, and everything was fifty-fifty" was sufficient to alter the status of their property. See further Estate of Raphael, supra, 115 Cal.App.2d 525. An even broader declaration appears in Long v. Long (1948), 88 Cal.App.2d 544, 549: "It is not essential to show an express oral agreement, but the status of the property may be shown 'by the very nature of the transaction or appear from the surrounding circumstances.' (Marvin v. Marvin, 46 Cal.App.2d 551, 556.)"...
Where there is a marriage contract or settlement, the terms of the contract or settlement govern the rights of husband and wife in respect of all property within its terms which are then possessed or are afterwards acquired, notwithstanding any subsequent change of domicile.
unless a State pursues the view of immutability without exception, it would seem that fully informed and consenting parties should be permitted by agreement to modify their marital property regime to meet the changing circumstances of life. Fortunately, in more and more States, married couples are being permitted to adjust their property interests after marriage as well as before. This reduces conflicts issues in most instances. (Footnotes omitted.)
Pursuant to the Judicial High Council's approval in 1362 (1983), a circular was issued by the State Organization for Registration of Deeds to Marriage and Divorce Registries requiring them to inform the spouses, at the time of concluding the marriage contract, [of] certain conditions that they could stipulate under the marriage contract. If they accepted those conditions, they would be binding. These conditions mostly bind and commit the husband. One of those proposed conditions is that should the husband divorce his wife without any reason and without any fault on part of the wife, he would be required to transfer to his wife, gratis, half of the assets acquired by him during the matrimony, at the court order. This condition is brought to the attention of husband and wife at the time of con[cl]usion of [the] marriage contract. If the husband accepts it, it creates an obligation for him under the marriage contract. If he does not accept [t]his condition, the marriage contract may be concluded without including this condition, and no obligation in that respect would attach to the husband. If this condition is accepted and included in the marriage contract, should the husband divorce the wife subsequently without any fault on her part, half of the property acquired by the husband during the matrimonial ties would be transferred to the wife at the court's order. In any event, there are no provisions of law in this respect. The Judicial High Council's approval mentioned in the marriage deeds is meant only to remind the spouses that they may stipulate such conditions, including the above condition, in the marriage contract. And should they accept such conditions at their own free will, they could be bound to perform it. (Emphasis added.)
Frequently, either incident to a move of the family home from a marital [community] property State to a separate property State or simply incident to convenient investment or business purposes, assets may be moved from a marital property State to a separate property State and placed in the individual name of one spouse. This may be done in good faith and with full consent of both spouses. Even so, the presumption is most likely to be that no gift of the marital interest in the asset is intended by the non-title-holding spouse. In other words, any interspousal gift of marital property must be proven by clear and convincing evidence. Consequently, absent evidence showing a gift by one spouse to the other, taking title in the name of one spouse, even when done in an individual property State, does not destroy the previously existing rights of the parties under the matrimonial regime.
E. Scoles, supra, at 36-37.
24. The Tribunal's concern for beneficial interests flows naturally from the terms of the Algiers Accords, in particular, General Principle B which states the purpose of both Parties "to terminate all litigation as between the government of each party and the nationals of the other, and to bring about the settlement and termination of all such claims through binding arbitration." Articles II, paragraph 1, and VII, paragraphs 1 and 2, of the CSD [Claims Settlement Declaration] give the Tribunal jurisdiction over claims arising out of debts, contracts, expropriations or other measures affecting property rights and define the terms "national" and "claims of nationals" by reference to persons who hold "ownership interests," whether directly or indirectly. The evident purpose of these claims settlement arrangements could not be fully implemented unless the Tribunal's jurisdiction were broad enough to permit the beneficial owners of affected property interests to present their claims and have them decided on their merits by the Tribunal.
25. The Respondent has argued that Article 40 of the Commercial Code of Iran bars the alleged beneficial ownership. However, the issue here is not the validity vel non under Iranian law of beneficial ownership interests vis-a-vis the company or third parties. Rather, it is whether the Government of Iran is responsible, under international law, to beneficial owners for "expropriations and other measures affecting property rights." (Footnote omitted.)
26. The Tribunal's awards have recognized that beneficial ownership is both a method of exercising control over property and a compensable property interest in its own right.... The Tribunal concludes that the Claimants are entitled to claim compensation for the deprivation of their beneficial ownership interests....
Although some jurisdictions classify retirement pensions as gratuities, it has long been settled that under California law such benefits "do not derive from the beneficence of the employer, but are properly part of the consideration earned by the employee." (In re Marriage of Fithian (1974) 10 Cal.3d 592, 596.) Since pension benefits represent a form of deferred compensation for services rendered (In re Marriage of Jones (1975) 13 Cal.3d 457, 461), the employee's right to such benefits is a contractual right, derived from the terms of the employment contract. Since a contractual right is not an expectancy but a chose in action, a form of property (see Civ.Code, ¶ 953; Everts v. Will S. Fawcett Co. (1937) 24 Cal.App.2d 213, 215), we held in Dryden v. Board of Pension Commrs. (1936) 6 Cal.2d 575, 579, that an employee acquires a property right to pension benefits when he enters upon the performance of his employment contract. (Unofficial citations omitted.)16
Pension (and retirement rights) are viewed as deferred compensation which will have community or separate character depending upon marital status during the period in which they accrued. The deferred compensation idea is readily applicable to pension payments dependent upon the accumulation of contributions to a pension fund of a percentage of an employee's salary either by the employer or by the employee through withholding from the salary, or by both, plus the earnings of those contributions in the fund.
W.S. McClanahan, Community Property in the United States ¶ 6:21, at 365 (1982).17
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