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immediately referred to, assuming such a policy to be the wife's and the husband to be the survivor, it would now be subject to jus relicti.


If a man having an ordinary policy on his own life surrenders Substituted it, and takes in substitution a policy under the Act for the benefit protected. of his wife, it will be protected, although it may have some incidental advantage if the old policy had no actual surrender value.1

policy not

§ 87. The Act seems to assume that delivery of the policy, Delivery of when effected by the husband, is not required in order to required. vest the right in the beneficiaries. This is contrary to the ordinary rule. A policy of assurance effected by a man on his own life in favour of trustees for behoof of his wife and the children of the marriage, but not communicated to the trustees, does not, at common law, confer a vested right in the beneficiaries. To do so there must be delivery, active or constructive, of the policy. If undelivered it will pass to the husband's creditors upon his sequestration. A policy under the Act would, in such circumstances, remain the property of the beneficiaries.


statute apply

after its date.

§ 88. In 1881 the Legislature upon the preamble that it is Parts of this just and expedient to protect to a further extent the property marriages of married women in Scotland passed the Married Women's Property (Scotland) Act, 1881. The Act received the Royal assent on 18th July, 1881, and took effect from that date. This statute is "not very carefully or skilfully drawn," 4

1 Holt v. Everall, L.R. 2 Ch. D. 266. Infra, p. 197.

Jarvie v. Jarvie, 28 Jan. 1887, 14 R. 411; Hill v. Hill, 1755, M. 11580. See Walker's Executor v. Walker, supra, p. 64, note o.

3 44 and 45 Vict. c. 21, Appendix, p. 197.

4 Per Lord Blackburn in Paterson v. Poe, L.R. 8 App. Ca. at p. 680. These Acts do not seem to be favourites with the judges. Speaking of the English Act of 1882, Lord Esher, M.R., says, "It is truly a most


Exclusion of jus mariti.

Wife's receipts.

but it introduces very extensive changes.

Certain parts of

it apply to all marriages: other parts only to those which have taken place since its commencement. Shortly stated the provisions of the Act are as follows:

§ 89. If at the time of the marriage the husband have his domicile in Scotland1 the wife's moveable estate, whether acquired before or during the marriage, is by operation of law vested in her, as her separate estate, and is not subject to the jus mariti.

The rents and produce of heritable property in Scotland belonging to any woman married after the date of the statute are in the same position, and also are not subject to the right of administration of her husband.

The income of the wife's moveable estate is payable to her, and her individual receipt therefor is sufficient. To this extent, the husband's right of administration is excluded. She cannot, however, assign the prospective income of that estate unless with her husband's consent, that is in his capacity as curator, or without that consent dispose of such estate. She may gift the current income to her husband, and if she does, her representatives after her death are not entitled to call the husband to account for his intromissions.2

extraordinary Act of Parliament, and the reason of that in my opinion is that those who passed it tried to effect an impossibility." In re Armstrong, 5 Morrell's Bankruptcy Cases, at p. 203.

1 This is the common law rule. In the absence of contract, the mutual rights of husband and wife to each other's moveables, acquisita or acquirenda, are determined by the husband's domicile at the time of the marriage.-Dicey on Domicil, p. 268. Guthrie's Savigny, p. 240 et seqq.

2 Edward v. Cheyne (No. 2) 1888, L.R. 13 App. Ca. 385, S. C. 15 R H.L. 37. For the English cases, see White and Tudor, L.C., i. p. 579 (6th ed. 1886).

right of administra

§ 90. The effect therefore is that the Act ousts the jus mariti Husband's as regards the wife's moveable property, but gives her no new or tion remains. increased power in dealing with it or with her heritable estate, except as regards accruing income. The right of administration and the husband's curatorial power remain as they were, save as regards rents and receipts for income.

case of Act of

In this respect the general estate of a married woman Different in is in a somewhat different position from her earnings. From 1877. these by the Act of 1877 both the jus mariti and right of administration of the husband are excluded: and they are to be deemed to be settled to her sole and separate use, and her receipts are a good discharge not only for such earnings but also for the investments thereof. If so, then, she must be able to sue for such earnings, and to realize these investments without reference to her husband. For instance, if she buys a house with her earnings1 she can let it or sell it without consent of her husband but she could not do so if the house came to her by bequest, or was her property at the date of the marriage. It has been decided in the Sheriff Court, that after a wife has ceased to reside with her husband-without sufficient reason she is not entitled without her husband's consent to remove her furniture from the matrimonial residence.2 This is upon the ground that the husband's right of administration remains entire, and that the act in question is a disposal of property which, under the Statute of 1881, requires his consent. This point may require reconsideration,

This was the form of investment in Mrs. Weldon's case. See Weldon v. De Bathe, L.R. 14 Q.B. D. 339.

2 Andrew v. Andrew, 18 Dec. 1884, 1 Sh. Co. Rep. 54; Dempsey v. Dempsey, 21 Oct. 1885, ib. ii. 19. It was assumed that the wife's withdrawal from her husband's house was capricious, as the Sheriff Court is not competent to inquire into questions affecting the marriage relation.



Wife's move. able estate protected against diligence of husband's creditors.

for it is settled that although a wife deserts her husband, this does not deprive her of her right to enforce an obligation come under to her by her husband.' Even assuming the decision to be correct, it would not apply if the furniture represented a wife's earnings since 1877.2

§ 91. In the English Married Women's Property Act of 1882 express provision is made in regard to contracts by a wife. There is nothing of this in the Scotch Act, which relates solely to the property of married women. The powers of a married woman to contract, in reference to her separate estate, are therefore those which exist at common law when the jus mariti, but not the right of administration, is excluded. The effect of the exclusion of the jus mariti, in the case where the wife, with consent of her husband, carries on a separate business is, it has been held, that he is not liable for the debts she contracts in connection with it.3

The wife can by contract bind her separate estate; but the husband's consent is still necessary to validate the deed, except in cases under the Acts of 1861 or 1877.

§ 92. The wife's moveable estate is likewise protected by the Act against the diligence of the law for her husband's debts, provided it is invested, placed, or secured in her name or in such terms as clearly to distinguish it from the estate of her husband. This proviso does not apply in the case of such corporeal moveables as are usually possessed without a written or documentary title."

1 Smith v. Smith, 11 Jan. 1866, 4 M. 279.

2 See Weldon v. De Bathe supra, p. 67; Green v. Green, 5 Hare 400 n.; Wood v. Wood, 19 W.R. 1049.

3 Palliser v. Higgins, 1888, 4 Sh. Co. Rep. 323; Sellars v. Buist, ib. 5, 331.

4 This covers the case of such articles as furniture. See Duncan v. Gerrard, 1888, 4 Sh. Co. Rep. 246; M'Intosh v. Macrae, 1887, ib. 317; Allan v. Wishart, 1890, 6 Sh. Co. Rep. 185. Infra, § 222.

The effect of the husband's bankruptcy will be considered hereafter.

Act applies

marriages of

in Scotland.

§ 93. The Act, it will be observed, deals so far as con- only to cerns moveable estate, only with marriages of men domi- men domiciled ciled in Scotland. If therefore a Scotch woman marries a foreigner not domiciled in Scotland at the time of the marriage, and they afterwards come to reside and obtain a domicile here, the jus mariti apparently will subsist as before.1 The wife of a naturalized British subject is thus placed in a different position from that of a domiciled Scotchman. The domicile of the wife, it will be remembered, is that of her husband, no matter what it was before her marriage.2

English Act

There is no such qualification in the English Act of different. 1882, which in its corresponding section (sec. 1) applies to all married women whether they were married before, or on or after its commencement (1st January, 1883) and irrespective of the domicile of the husband at the date of the marriage. That domicile may no doubt affect the rights or obligations of the parties in certain cases; but an English domicile on the part of the husband is not made a condition of the applicability of the Act.

Neither the Act of 1877 nor that of 1880 is limited to persons domiciled in Scotland at the time of the marriage.

before the Act.

§ 94. As regards marriages prior to 18th July, 1881, the Marriages Act makes the following regulations:

This is to a certain extent inconsistent with § 6 of the Act, but it seems the plain inference from the language used. See Lashley v. Hog, 1804, 4 Paton App. 581; reversing M. 4628, 4619; Kennedy v Bell, 2 Feb. 1864, 2 M. 587. Fraser, Husband and Wife, ii. p. 1265. 2 See Dicey on Domicil, p. 104.

See e.g. De Greuchy v. Wills, L. R. 4 C.P.D. 362. Supra, § 79.

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