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the Property, Rights, and Obligations of the Husband and of the Wife, Decree of Separation. and in regard to the Wife's Capacity to sue and be sued.
and Right of
6. 1After a Decree of Separation a mensa et thoro obtained at the in- In case of stance of the Wife, all Property which she may acquire, or which may the Property come to or devolve2 upon her, shall be held and considered as of the Wife to belong to her property belonging to her in reference to which the Jus mariti exclusively of the Jus mariti and Husband's Right of Administration are excluded, and such perty may be disposed of 3 by her in all respects as if she were unmarried, and on her Decease the same shall, in case she shall die intestate, pass to her Heirs and Representatives, in like Manner as if her Husband had been then dead; provided that if any such Wife should again cohabit with her Husband all such Property as she may be entitled to when such Cohabitation shall take place shall be held to her separate Use, and the Jus mariti and Right of Administration of her Husband shall be excluded in reference thereto, subject, however, to any Agreement in Writing made between herself and her Husband; and the Wife shall, while so separate, be capable of entering into Obli- also for Purgations, and be liable for Wrongs and Injuries, and be capable of suing tract and and being sued, as if she were not married; and her Husband shall suing. not be liable in respect of any Obligation or Contract she may have entered into, or for any wrongful Act or Omission by her, or for any Costs she may incur as Pursuer or Defender of any Action, after the Date of such Decree of Separation and during the Subsistence thereof; provided that where upon any such Separation Aliment has been decreed or ordered to be paid to the Wife and the same shall not be duly paid by the Husband, he shall be liable for Necessaries supplied for her Use.
poses of Con
1 Corresponds with § 25 of the English Act, 20 and 21 Vict. c. 85. As to the effect of the clause upon marriage settlements, see In re Insole, L. R. 1 Eq. 470; In re Coward and Adams Purchase, L. R. 20 Eq. 179; Dawes v. Creyke, L. R. 30 Ch. D. 500; Waite v. Morland, L. R. 38 Ch. D. 135.
If a married woman after obtaining decree of separation succeeds to property, it will not pass to the trustees of her marriage settlement under a general assignation of acquirenda. Dawes v. Creyke, supra, and the comments on this case in Waite v. Morland, supra. Whether a married woman after judicial separation is entitled to obtain a conveyance to property bequeathed to her subsequently thereto, freed from restraints applicable to a married woman, is not settled. See Waite v. Morland, supra.
2 I.e., pass by succession by law or by will. Parr v. Parr, 1 My and K. 648; Earl of Zetland v. Lord Advocate, L. R. 3 App. Ca. 505.
Property coming to a married woman does not devolve upon her after the decree, if the succession has opened prior thereto, even although it has not been reduced into possession by the husband. Johnson v. Lauder, L. R. 7 Eq. 228.
When a married Woman succeeds to
3 As to these words, see per Romilly, M. R., In re Insole, L. R. 1 Eq. 470.
The English technical expression for property held exclusive of a husband's marital rights. See supra, pp. 54, 82; infra, p. 194 note 7, p. 196 note 3.
12. The Widow of any Person who shall, after the passing of this Act, die infeft in Property held by Burgage Tenure shall be entitled to Terce therefrom and the like Proceedings as to Service and Kenning before the Sheriff shall be competent in such a Case as are competent with reference to Property in respect of which Terce might have been claimed prior to the passing of this Act.1
1 Supra, § 69.
16. When a married Woman succeeds to Property, or acquires Right to it by Donation, Bequest, or any other Means than by the Exercise Property, etc., Husband or of her own Industry,1 the Husband or his Creditors, or any other PerCreditor not entitled to son claiming under or through him, shall not be entitled to claim the claim the same as falling within the Communio bonorum, or under the Jus mariti or Husband's Right of Administration, except on the Condition of making therefront a reasonable Provision for the Support and Maintenance of the Wife, if a Claim therefor be made on her Behalf; and in the event of Dispute as to the Amount of the Provision to be made, the Matter shall, in an ordinary Action, be determined by the Court of Session3 according to the Circumstances of each Case, and with reference to any Provisions previously secured in favour of the Wife, and any other Property belonging to her exempt from the Jus mariti: Provided always, that no Claim for such Provision shall be competent to the Wife if before it be made by her the Husband or his Assignee or Disponee shall have obtained complete and lawful Possession of the Property, or, in the Case of a Creditor of the Husband, where he has before such Claim is made by the Wife attached the Property by Decree of Adjudication or Arrestment, and followed up the said Arrestment by obtaining thereon Decree of Furthcoming, or has poinded and carried through and reported a Sale thereof.
Court of Session em. powered to
make Acts of Sederunt.
1 Supra, §§ 66, 67, 68.
2 But the statute does not apply if the husband takes in virtue of a contract of marriage or other pactional arrangement. Fraser, Husband and Wife, i. p. 835.
3 The Sheriff's jurisdiction is not extended to this by the Act of 1874.
17. The Court of Session are hereby authorized and empowered to make from Time to Time such Orders and Regulations as to Forms of Process by Acts of Sederunt as they may consider necessary for carrying into execution the Purposes of this Act.
18. All Laws, Statutes, and Usages are hereby repealed in so far as Repeal of the same are inconsistent with the Provisions of this Act, but no sistent with further or otherwise.
19. The following Words and Expressions, when used in this Act, Interpretation shall, in the Construction thereof, be interpreted as follows, except where the Nature of the Provision or the Context of the Act shall exclude or be repugnant to such Construction; that is to say, the Expression "Lord Ordinary" shall include his Successor; the Word "Property" shall include and apply to all Property falling under the Jus mariti; the Expression "Consistorial Action" shall include Actions of Declarator of Marriage, of Declarator of Nullity of Marriage, of Declarator of Legitimacy and Bastardy, Actions of Separation a mensa et thoro, of Divorce and of Adherence, and of putting to Silence, and Actions of Aliment between Husband and Wife instituted in the Court of Session.
20. This Act may in all Proceedings be cited as "The Conjugal Short Title. Rights (Scotland) Amendment Act, 1861."
ment of Act
21. This Act shall come into operation on the First Day of November Commencenow next ensuing, and not before.
37 and 38 VICTORIA, C. 31.1
An Act to amend the Conjugal Rights (Scotland) Amendment Act, 1861.
[16th July, 1874.]
Whereas an Act was passed in the twenty-fourth and twenty-fifth 24 & 25 Vict. years of the reign of Her present Majesty, intituled "An Act to "amend the Law regarding Conjugal Rights in Scotland":
And whereas the expense of procedure under that Act prevents many persons from availing themselves of its benefits, and it is desirable to amend the same :
Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same.
1. The word "sheriff" shall include sheriff-substitute.
1 Supra, § 62; Wilson, Practice of the Sheriff Courts, p. 394 et seqq. (3rd ed. 1883).
Definition of "sheriff."
Sheriffs jurisdiction extended to
to protect property of deserted
2. The sheriffs of counties in Scotland shall have all jurisdictions, powers, and authorities necessary for hearing, trying, and determining applications applications by wives deserted by their husbands for orders to protect property that they have acquired or may acquire by their own industry after such desertion, and property which they have succeeded to or may succeed to or acquire right to after such desertion, against their husbands or creditors of their husbands, or any persons claiming in or through the rights of their husbands, and applications by the husbands of such wives, their creditors, or others claiming in or through the rights of such husbands for the recall of such orders: Provided as follows:
wives and for the recall of such orders.
1. All such applications in the sheriff court shall be made by peti-
2. The conditions on which orders to protect property as aforesaid
3. An application for the recall of any such order to protect property
It shall be the duty of the clerk of the court in which any such
1 The jurisdiction of the Sheriff extends only to protection orders; i.e. it embraces only the powers in sec. 1-5 of the Act of 1861.
2 Forms, see Fraser, Husband and Wife, ii. p. 1557; Lees, Sheriff Court Styles, p. 109 (2nd ed).
4. It shall not be necessary to print the petition, answer, or evidence in order to the disposal by the Court of Session of any appeal taken thereto from a sheriff court in any application by this Act made competent in the sheriff court :
5. Any warrant of citation granted by a sheriff in any such application may, when necessary, be executed edictally (without the concurrence or authority of the Court of Session) by delivery of a copy thereof at the office of the keeper of edictal citations according to the mode established by the Act passed in the sixth year of the reign of His Majesty King George the Fourth, chapter one hundred and twenty, in regard to the execution edictally of citations on warrants of the Court of Session, and by an act of sederunt of the Court of Session, dated the twentyfourth day of December one thousand eight hundred and thirty-eight, and by sending a copy thereof by post to the last known address of the person to be cited.
The keeper of edictal citations or his clerk shall register an abstract of every such copy so delivered, in the record for edictal citations by virtue of letters of supplement to persons furth of Scotland to appear before any of the inferior courts of Scotland; and such abstract shall exhibit such particulars as are required to be exhibited in an abstract of any copy citation by law appointed to be made or registered by the said keeper or his clerk.
3. This Act may be cited as the Conjugal Rights (Scotland) Amend- Short title. ment Act, 1874.
26 and 27 VICT. c. 87.
An Act to consolidate and amend the Laws relating to Savings Banks.
28th July, 1863.
be made and
§ 31. It shall be lawful for the Trustees and Managers of any Savings How Deposits Bank to pay any sum of money in respect of any Deposit already women may made or to be made by Married Women, or by Women who may paid. marry after such Deposit, to any such Women, unless the Husband of such Woman shall give to such Trustees or Managers Notice in Writing of his Marriage with such Woman, and shall require payment to be made to him.