(dissenting) — I dissent from the majority's imposition of liability for the separate tort of one spouse upon the property of the marital community. The extension of community liability is inconsistent with the concept of community property in this state and further is unjustified and unwise without explicit statutory authority.
I
In interpreting the law of community property in this state, we deal with an undefined concept:
[T]he exact nature of a community has been somewhat less than crystal clear. . . . The community, like the Kingdom of Heaven, is "like unto" a number of things (see Matthew 13:24-33), but seems to defy precise definition.
Household Fin. Corp. v. Smith, 70 Wn.2d 401, 403, 423 P.2d 621 (1967). However, an examination of our cases concerning the nature and disposition of community property interest demonstrates with "crystal clarity" that the majority's conclusions today are inconsistent with the protection of the marital community implicit in the concept of community property.
Each spouse in a marriage has an undivided half interest in each item of community property, In re Estate of Patton, 6 Wn. App. 464, 494 P.2d 238 (1972), a property right in the community property equal to that of the other spouse. In re Estate of Towey, 22 Wn.2d 212, 155 P.2d 273 (1945).
It is on the basis that community property is thus "owned" by the spouses that the majority concludes that there is "no sufficient reason" for the rule that community property should not be liable for the separate torts5 of a spouse. Majority opinion, at 244. See also McDonald v. *249Senn, 53 N.M. 198, 204 P.2d 990 (1949) (reasoning that because the spouses' interests in community property are vested, there is no legal impediment to segregation and execution upon the tort-feasor spouse's community property interest).
This analysis confuses the concept of ownership with the availability of property for immediate possessory satisfaction of a tort judgment. The two do not go hand in hand. For instance, a future interest, such as a noncontingent remainder interest after an existing life estate is vested, the remainderman "owns" the future interest. The property is not, however, subject to immediate and total possession or sale for payment of a tort judgment against the remainder-man. Although the vested interest can be sold or otherwise encumbered, the remainderman's creditor is not entitled to immediate possession because of the life tenant's interest. See McKenna v. Seattle-First Nat'l Bank, 35 Wn.2d 662, 214 P.2d 664, 16 A.L.R.2d 679 (1950). Just as in this example the life tenant's interest is not impaired by allowing immediate sede and possession on the remainder that will become a fee simple after the life tenant's estate expires, the undivided interest of the innocent spouse in the whole of the marital community's property should prevent encroachment upon the community property to pay the other spouse's separate tort debt.
The majority's holding effectively treats community property as a mere species of common law cotenancy, when it is in fact a type of property ownership intrinsically part of, dependent upon and overtly protective of the marital relationship. RCW 26.16.030; In re Estate of Olson, 87 Wn.2d 855, 557 P.2d 302 (1976); Poole v. Schrichte, 39 Wn.2d 558, 236 P.2d 1044 (1951). Implicit in the majority's analysis is the conclusion that, because each spouse owns a portion of the community property, the property can be partitioned and removed from the community at the will of *250one spouse or involuntarily on the behest of the separate creditor of one spouse.
This is inconsistent with a long line of cases preventing one spouse from making a gift of community property for noncommunity purposes. See, e.g., Nimey v. Nimey, 182 Wash. 194, 45 P.2d 949 (1935) (purported gift of community property made by one spouse void); Potlatch No. 1 Fed. Credit Union v. Kennedy, 76 Wn.2d 806, 459 P.2d 32 (1969) (spouse not empowered to encumber community property for purposes not in community interest). Because the concept and existence of community property depends on the marital relationship, it is only the end of that relationship — through dissolution or death — or the agreement of both spouses that their property, or a portion of it, will not be community that provides an opportunity for partition of the spouses' otherwise indivisible interests in the community property.
Indicative of the unique nature of ownership of community property is the fact that it need not be divided in precise "halves" at dissolution. RCW 26.09.080; In re Marriage of Hadley, 88 Wn.2d 649, 565 P.2d 790 (1977). In fact, so protective are the courts of this state of the concept of community property that a separate property agreement must be proved by clear and convincing evidence. State v. Miller, 32 Wn.2d 149, 201 P.2d 136 (1948). A separate property agreement will not be enforced by the courts if it believes it to be unfair, Hamlin v. Merlino, 44 Wn.2d 851, 272 P.2d 125 (1954), or upon relatively slight evidence that the separate property agreement has not been strictly observed by both parties. Kolmorgan v. Schaller, 51 Wn.2d 94, 316 P.2d 111, 67 A.L.R.2d 704 (1957).
Marriage is essential to the characterization of property as community in nature, and marriage itself raises the presumption that property acquired by the spouses is community. RCW 26.16.030; Poole v. Schrichte, supra; Cross, The Community Property Law in Washington, 49 Wash. L. Rev. 729, 746 (1974). Former spouses become tenants in *251common in property owned as community property during marriage only when their marriage is dissolved without disposing of the property, Yeats v. Estate of Yeats, 90 Wn.2d 201, 580 P.2d 617 (1978), thus demonstrating the unique nature of the community property system.
Community property, enjoying such a protected position in our scheme of marital community ownership, cannot be subjected to the individual spouse's separate debt simply because it in some sense "belongs" to him:
The interest of the respective spouses in community property is separate and distinct from the separate estate of each. . . .
Neither the husband nor the wife can alienate or convey his or her interest in community real estate during the lifetime of the community, and, if neither of them has the right to sell or convey to any third person, creditors have no greater right.
(Citations omitted. Italics mine.) Stafford v. Stafford, 10 Wn.2d 649, 651, 117 P.2d 753 (1941).
I therefore object to the majority's extension of separate liability to community property, not only because the majority's analysis in itself unfairly subjects community property to a separate tort debt, but because it must be based on a reasoning that could eventually eviscerate the concept of community property as a superior form of marital property ownership enjoyed by the people of this state. Under the majority's analysis, there is no reason why this concept of individual ownership of a portion of the marital community's property cannot be extended to separate contract debts, to encumbrances intended for noncommunity benefits, and finally to gratuitous transfers. Only by complying in a consistent manner with the indivisible nature of community property in this instance can we insure that the community property concept will not become merely another form of common law cotenancy, partitionable, at will or involuntarily, with no regard for the marital relationship itself.
*252II
Even if the majority's holding could be justified as a rule of community property law consistent with the present scope of that property scheme, it is a change which should be accomplished by the legislature and not the courts. There is no statutory authority in this state for the step taken by the court today, but the statutes regarding community property clearly contemplate a system in which community property is not, generally, subject to separate liability:
Community real estate shall be subject ... to liens of judgments recovered for community debts . . .
(Italics mine.) RCW 26.16.040.
Neither husband or wife is liable ... for the separate debts of the other . . .
RCW 26.16.200.6 The legislature has specifically provided for the liability of community property for separate debts in some instances, see RCW 26.16.200, often after the courts of this state have justifiably refused to extend liability in the absence of statutory authority. Smyser v. Smyser, 17 Wn.2d 301, 135 P.2d 455 (1943). See also National Bank of Commerce v. Green, 1 Wn. App. 713, 721, 463 P.2d 187 (1969) (ruling that RCW 26.16.200's extension of community property liability for separate debts must apply prospectively only because " [t]he statute adds to the burdens of and pro tanto alters community property, changing one of its characteristic incidents . . .''). The decision to impose additional liability on community property is one of public policy, involving many substantive and procedural questions that cannot be properly considered by the courts in one opinion or a series of opinions. It would be far better left to the legislature.
*253Consider the following example of a few of the problems that will be created by the majority's decision: Under the "item" theory, in which the spouses hold undivided half interests in each item of community property, will the separate tort debt be recoverable only out of the liable spouse's "half" of each item of community property? See Collins v. Collins, 152 Wash. 499, 278 P. 186 (1929); In re Estate of Patton, 6 Wn. App. 464, 494 P.2d 238 (1972). How, procedurally, could levy against half of an item of community property be accomplished? Under the present laws, nothing would prevent the judgment creditor from levying against the liable spouse's half interest, to the extent not otherwise exempt, in a community automobile or residence, or in community furniture or appliances. RCW 6.04.060; 6.12-.050; 6.16.020. If the community is to retain the use of these items, the innocent spouse's interest in this and other community property will obviously be impaired because the community, and through it the innocent spouse, will be forced to buy back the "hostage" items with other community assets in which the innocent spouse has a half interest.
Other problems also arise: should the liability of half of the community property for a separate debt be extended to contractual debts? The analysis used by the majority might suggest such a result, yet the legislature could consider policy justifications for preventing the use of community property to satisfy a separate contract debt, and consequently provide for that result by statute. In addition, how are trial judges to determine when half of the community property has been subjected to levy for payment of a spouse's separate debt? There is no statutory procedure for "tallying up" and dividing community property for payment of a civil judgment.
In fact, the plaintiff's difficulties in recovering her separate tort judgment from the liable husband in this case might have been avoided had this court not provided for nonstatutory community property agreements without due regard for the consequences of such changes in the characterization of marital partners' property. Sixty years ago, in *254Volz v. Zang, 113 Wash. 378, 194 P. 409 (1920), this court approved the device of a contract between spouses to convert all their property, existing at the time of agreement, acquired thereafter, or both, to community property. We have been dealing with the impact of case law approval of such community property agreements, on both the spouses entering into such a contract and on interested third parties and creditors, in a catch-as-catch-can basis ever since. See, e.g., Norris v. Norris, 95 Wn.2d 124, 622 P.2d 816 (1980); Berol v. Berol, 37 Wn.2d 380, 223 P.2d 1055 (1950); Neely v. Lockton, 63 Wn.2d 929, 389 P.2d 909 (1964); Leroux v. Knoll, 28 Wn.2d 964, 184 P.2d 564 (1947); In re Estate of Verbeek, 2 Wn. App. 144, 467 P.2d 178 (1970). The majority in this case acknowledges that a community property agreement between Mr. and Mrs. Jacobsen left Mr. Jacobsen with no separate property to satisfy plaintiff's tort judgment. Majority opinion, at 238-39. The plaintiff in this case has not argued thát the agreement should not apply to prevent a separate judgment creditor from levying against property that was separate in nature prior to execution of a community property agreement. Had the concepts first set forth in Volz been established by statute, however, the legislature could have anticipated and provided for problems of separate creditors created by Volz such as that demonstrated by this case.
The issues raised here would be better suited for legislative examination and action on the basis of a study and recommendations made by experts in this field. The legislature has often benefited from the advice of a formal commission or informal group of persons, knowledgeable in the subject matter on which legislation is proposed, who can provide a consistent statutory scheme that fully contemplates and provides for potential difficulties in a way that cannot be accomplished in a single opinion. Such a legislative endeavor is noted in Green River Community College Dist. 10 v. Higher Educ. Personnel Bd., 95 Wn.2d 108, 622 P.2d 826 (1980). See also Cross, Equality for Spouses in Washington Community Property Law — 1972 Statutory *255Changes, 48 Wash. L. Rev. 527 n.2 (1973), noting the comprehensive suggestions of the Citizens' Advisory Council on the Status of Women that apparently led to the statutory changes ending discrimination against women in many areas of the law. If such a reform is thought necessary, the legislature can more thoroughly deal with all the difficulties such a major change in the policies of community property law will entail.
Legislation is the route that has been taken in all but one of the community property states that actually subject part or all of the community property to the separate tort of one spouse. Tex. Fam. Code § 5.61 (1969); Lawrence v. Hardy, 583 S.W.2d 795 (Tex. Civ. App. 1978) (community liability for separate tort incurred only because of cited statute); La. Civ. Code Ann. arts. 2345, 2364, 2365 (West Supp. 1980) (overruling, among other cases, Walker v. Fontenot, 329 So. 2d 762 (La. App. 1976) (no community liability for spouse's tort not occurring while on community business); Cal. Civ. Code § 5122 (West Supp. 1980) (overruling cases). Only the New Mexico court has extended community liability for separate torts without statutory authority, McDonald v. Senn, supra, and that was not accomplished without some concern as to the decision's effect. See Clark, New Mexico Community Property Law: The Senate Interim Committee Report, 15 La. L. Rev. 571 (1954).
It is interesting that the McDonald court itself, after a review of community property in other states, believed that the result would be different under the community property law of Washington:
The concepts of community property as determined by the great courts of Washington and California, in construing substantially identical statutes, are fundamentally different.
McDonald v. Senn, 53 N.M. 198, 212, 204 P.2d 990, 998 (1949). The rule in California was subsequently changed by statute. McDonald itself was the decision of only three judges. Two judges of the New Mexico Supreme Court dissented, and two other judges did not participate in the case.
*256All other community property jurisdictions, relying on analyses of the nature of marital community property, extend tort liability to the community only when a spouse's tort can properly be considered community in nature. Hansen v. Blevins, 84 Idaho 49, 367 P.2d 758 (1962); Barnes v. Vozack, 113 Ariz. 269, 550 P.2d 1070 (1976); Schilling v. Embree, 118 Ariz. 236, 239, 575 P.2d 1262, 1265 (1978) (relying on statute to define "[liability of the community property for separate debts”, there being "nothing in the statute from which to infer the legislature intended otherwise with respect to other liabilities"):
To the contrary, we believe the manifest purpose of the statute [similar to RCW 26.16.200] was to prevent avoidance of existing obligations by the voluntary act of marriage, and that it does not affect liability of the community property for separate obligations of any kind incurred thereafter.
We should not allow community property to be liable for separate tort debts without statutory authority. Only the legislature can adequately consider the policy decisions necessitated and deal with all the procedural difficulties entailed in such a massive change in the "characteristic incidents" of community property. National Bank of Commerce v. Green, supra at 721.
I therefore respectfully dissent.
Utter, C.J., and Brachtenbach, J., concur with Horowitz, J.
Reconsideration denied February 26, 1981.
The majority's extensive review of cases in this state establishing the "separate" or "community" nature of a spouse's tort seems superfluous. The conclusions reached by the majority will not eliminate the need for this analysis, since torts incurred "in the management of community business or for its benefit," majority opinion at page 246, will subject all of the community property to liability. Although these cases may lack a consistency of analysis, that is immaterial to *249the case at bar since there has been no challenge to the separate nature of Mr. Jacobsen's tort against plaintiff.
The statute continues in a manner that leaves unclear the type of property of "husband or wife" contemplated in the statute by stating "nor is the rent or income of the separate property of either liable for the separate debts of the other . . ." (Italics mine.) Our court has not had an opportunity to decide whether this language limits the more general provisions quoted in the text of this opinion.