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STATUTE LAW AFFECTING CONJUGAL PROPERTY.
of a year and day from its date by the death of one of the spouses is declared not to affect the rights of parties, but the whole rights of the survivor are to be regulated as if the marriage had subsisted for that period.
§ 55. Although the Act was apparently intended to affect Applies to moveable estate only, this provision is so general in its terms that it covers terce. A widow therefore now takes terce whether the marriage has subsisted year and day or not. The clause does not touch the condition as to the birth of a child, and so a widower has still no courtesy unless a child of the marriage has been born alive.
THE CONJUGAL RIGHTS (SCOTLAND) AMENDMENT ACT, 1861.1
§ 56. The jus mariti became law at a time when moveable old law prac property, as we now know it, did not exist. A wife's tected wife's paraphernalia practically embraced all the corporeal moveables that a married woman was likely to possess. Her peculium covered any other moveable property she might have. And paraphernalia and peculium were separate estate in the person of the wife, not disposable of by her husband, not liable for his debts, and not subject to the diligence of his creditors. Wealth consisted solely in land. The corpus of a wife's land was protected against the husband; but her possession was his possession, and he took the produce as his wife's administrator, and the arrangement was probably reasonable in early times. When other forms of wealth grew up, and ready money increased, the only form of investment known was the lending of it upon the security of land, and the law regarded all such loans as of the nature of land, and heritable. Thus, if they had been made by the
24 and 25 Vict. c. 86, Appendix, p. 182.
2 37 and 38 Vict. c. 31.
made heritable tected quoad
and so pro.
Growth of moveable property outside protective limits.
wife, they remained her property; if they had been made by the husband they were not liable to terce, unless constituted by infeftment. So too by an ingenious fiction permanent loans on personal security were likened to land, and bonds bearing interest or having tractus futuri temporis became feuda pecuniae, and when a wife had such investments they remained her own.
$57. The growth of industrialism during the last and the present centuries created a vast amount of wealth, and of new forms of investment, which the old rules could not protect, but which in virtue of the jus mariti became the husband's property. The prevailing use of marriage contracts for the protection of this property when it belonged or might fall to married women, and the cases of hardship which occurred both in England and in Scotland where there was no contract, showed that some alteration upon the law was necessary. The matter was taken up by the Law Amendment Society, and after having been discussed for many months, an exhaustive and instructive report was issued advocating a change of the law. Following upon this, public agitation commenced and over 70 petitions, complaining of the state of the law, were presented to Parliament in the session of 1856. One of these was signed by upwards of 3,000 women, amongst whom were Elizabeth Barrett Browning, Mrs. Carlyle, Mary Cowden Clarke, Amelia B. Edwards, Mary Howitt, Mrs. Gaskell, Harriet Martineau, and many others distinguished in literature and art.1
§ 58. Sir Erskine Perry, who is understood to have drafted the Report of the Law Amendment Society, moved in the House of Commons, on 10th June, 1856, that the rules of
1 The petition is printed in The Jurist (N.S.) 1856, vol. ii. part ii. p. 134.
the common law which give all the personal property of a
§ 59. At the beginning of next session, 13th February, Brougham's 1857, Lord Brougham, in a long and interesting speech, moved certain resolutions in the House of Lords upon the same subject, and presented a Bill "to amend the Law with The debate on respect to the property of Married Women."
the resolutions was adjourned, and the Bill dropped in consequence of Lord Brougham's being obliged to go abroad.
In May of the same year Sir Erskine Perry obtained leave Sir E. Perry's It from the House of Commons to bring in a similar Bill. was approved of by the Government draftsman, and was very much the same as Lord Brougham's. On 15th July the second reading was carried by a majority of 55. Nothing further, however, could be done in that session, and the subject was not revived for many years afterwards.
§ 60. While the Married Women's Property Bill was under discussion, Lord Cranworth's well-known Divorce and Matrimonial Act was before Parliament, and the opportunity was taken of altering the law of England as regards the property of married women, particularly when the marriage was dissolved or practically dissolved.
§ 61. In 1861 followed the Conjugal Rights (Scotland) Rights Act
Amendment Act, which applied solely to Scotland. The principal provisions of this statute relative to the present subject are these:
§ 62. A wife deserted by her husband may (sec. 1) obtain from the Court of Session an Order protecting against him and all creditors or persons claiming under or through him all property falling under the jus mariti (sec. 19) which
(a) she has acquired, or may acquire by her own industry 2 after such desertion, and
(b) property to which she has succeeded, or may succeed to, or acquire right to after such desertion.
After intimation of the Order, as required by the statute, the above property belongs to the wife as if she were unmarried (sec. 4), except
(i.) property which the husband or his assignee or disponee has, before proceedings were begun in court, obtained full and complete lawful possession of; and
(ii) property which has been attached by arrestment followed by a decree of furthcoming, or by a poinding
and sale reported before the date of presenting the petition for the Order.
So long as the Order stands, the wife (secs. 5 and 6) may sue and be sued as if unmarried.
By an Act passed in 18743 the Sheriff may grant the like Orders in cases coming before him.
§ 63. After decree of separation a mensa et thoro has been obtained at the instance of a wife, all property (sec. 6), which
1 What is desertion? See Turnbull, 14 Jan. 1864, 2 M. 402; Chalmers v. Chalmers, 4 March, 1868, 6 M. 547. The English cases are brought together in Griffith's Married Women's Property Acts, p. 91 (5th ed. 1883); and in Stroud, Judicial Dictionary, s.v. (1890).
2 That is in some lawful calling. Property acquired by immoral practices is not protected, Mason v. Mitchell, 3 H. & C. 528. 337 and 38 Vict. c. 31, Appendix, p. 187.
would otherwise (sec. 19) fall under the jus mariti, which she may acquire, or which may come to or devolve upon her, is to be held and considered as property belonging to her in reference to which the jus mariti and husband's right of administration are excluded. It may be disposed of by her as if she was unmarried, and on her death, in case she shall die intestate, passes "to her heirs and representatives in like manner, as if the husband had been then dead," or otherwise as she may direct by will.
§ 64. The wife, while so separate, is (sec. 6) capable of enter- Wife's position ing into obligations, is liable for wrongs and injuries, and is icial separation. capable of suing and being sued, as if she was not married.
The husband is not 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 in any action she may sue or defend, after the date of the decree of separation and during its subsistence.
tection is of same effect as decree of sep
§ 65. An Order of protection duly intimated in terms of the Order of proAct is (secs. 4, 5) of the same effect as a decree of separation as regards the property, rights, and obligations of the husband aration in cerand of the wife, and in regard to her capacity to sue and to be sued.
66. The protection subsists, however, only so long as Protection the husband and wife remain separate. together, the wife is (sec. 6) in the same position, as regards her remain
If they again come
property, as if a separation had not taken place, subject to this proviso that all property, which she has acquired in the interim,
'These are the same words as in the English Act (20 and 21 Vict. c. 85, § 25), and are intended to exclude a claim on the part of a surviving husband. He might have contended that his marital rights were excluded only during the subsistence of the marriage, and that they revived upon its dissolution.
under the Act subsists only so long as hus. band and wife