According to paragraph 1 of article 1365 of the civil code of German, to dispose of all property requires the consent of the other party to agree.On the explanation, the main content is: (1) it is necessary to the consent of the other party agreed to "behavior" includes the following three types: the first is a spouse places burden of their duty of all property behavior;Secondly, spouse without the consent of the other party, one party consent, the obligation of burden dispose of all their property for the implementation of the behavior;The third is to have the dispose of all property meaning other legal behavior.(note: (DE) Dieter Schwab, suzuki (day) lu ", "ド イ ツ family law, and club, 1986, pp. 117-116.)(2) "all property" includes two cases: one is "a spouse places will all property for a second disposition," even if their property is only a single target.(note: Dai Dongxiong: essays on the pro is a method of east university book company, 1988, p. 196.)Secondly, "almost all property", namely "in practice, to protect the marital life, expanding explain the applicable scope, especially on the transactions of real estate registration, to the real property ownership or other property rights is a property of a spouse places the only important, make it to dispose of the property mark, should get the consent of the other".(note: the OLG Kln NJW 1971, s. 2312.) whether the transaction of property belongs to almost all of the property, on the basis of "the value of the transaction property and the value of the remaining property than a" method to determine them.However, how much is the value of trading property constitutes "almost all of the property," there is no conclusion.According to the federal court precedent, if the rest of the small property on the value reached more than 15% of all property, cannot meet the constitutive requirements of article 1365 of the;Dispose of the property on the value reached 85% of the total property value namely.(note: the Family Law in Europe, edited by Carolyn Hamilton and Kate Standley, Butterworths, 1995, p. 175.) according to the general said, in comparison, get treated by trading payment not be considered.(note: (DE) Dieter Schwab, suzuki (day) lu ", "ド イ ツ family law, and club, 1986, p. 118).(3) according to the federal court precedents, in the contract to a third party on the transaction of property is a spouse places all or almost all of the property have a positive cognition, or at least know will lead to the result of the case, 1365 is applied.(note: (DE) Dieter Schwab, suzuki (day) lu ", "ド イ ツ family law, and club, 1986, pp. 119-118.)Based on precedent and by claims on article 1365 of the consent - usually the agree with the other spouse the burden of proof burden.(note: the federal court in civil cases set 43 volumes. Pp. 177-174.)
Swiss law1. The domicile of the disciplinary right of the legal limit to the marriageIn accordance with the According to the Swiss new paragraph 1 of article 169 of the civil law, the spouse is marriage residence (matrimonial home) under the condition of all people, if be sold or mortgage, you must consent to the party.Even if the couple have been separated, the limit still applies.Whether contract to a third person aware of the contract the other party is a married person, which requires the consent of their spouses, the limit still applies.According to the new Swiss civil law article 169, paragraph 2, if a spouse places cannot obtain the consent of the other, or to each other without good reason refuses to agree, the party can be filed for court decisions from the other party's consent.In accordance with the According to a new Swiss the provisions of article 178 of the civil law, if necessary, the court may require the indicate the disciplinary right of the marital residence in the land register is restricted, and make the separate of ownership or common, enjoy the ownership of a spouse places cannot transfer property.(note: the Family Law in Europe, edited by Carolyn Hamilton and Kate Standley, Butterworths, 1995, pp. 523-524.)
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