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the father's estate. Seeing, however, that legitim from a mother's estate was an impossibility prior to 1881, and was not therefore excluded by marriage contract, the result is that the children of every woman married prior to the commencement of the Act, who dies domiciled in Scotland, will be entitled to claim legitim upon her death, unless the claim has been discharged since then. It is now the practice to exclude it in marriage contracts, just as in the case of the father's estate.

Consent of

husband to wife's deeds

may be dis

pensed with


§ 100. The Act provides (sec. 5) that where a wife is deserted by her husband, or is living apart from him with his consent, the Court of Session or Sheriff Court may dispense with the in certain cirhusband's consent to any deed relating to her estate. At common law, if a husband will not or cannot concur in a deed by his wife relative to her estate held exclusive of his jus mariti, the Court will authorize her to act without him, or may name another curator; and she may be sued in the same manner.

This enactment applies to all marriages whenever contracted; and shows, if there was any doubt upon the point, that the husband's curatorial power remains practically as it was. It is settled that the exclusion of the husband's jus mariti alone, while it protects the wife's. property, does not touch the husband's curatorial power.2 To bar that power the right of administration must likewise be renounced or excluded. If both are excluded, the wife is, as What neces regards her property, in the same position as an unmarried woman. Now, except to the extent of enabling a wife, by herself or by another appointed by her, to receipt for the income of her moveable and for the rents of her heritable estate, the

1 Poe v. Paterson, supra, p. 74.

2 Ritchie v. Barclay, 5 June, 1845, 7 D. 819; Per Lord Gifford in Bryce's Trustee, 2 March, 1878, 5 R. at p. 728.

3 Gordon v. Gordon, 16 Nov. 1832, 11 S. 36.

sary to oust husband's right of administration.


The Act does not place a married

woman in

same position

husband's right of administration is not interfered with by the present Act. A married woman under it is in a position totally different from that of a woman whose husband's jus mariti and right of administration have been excluded by contract or by statute, as under the Acts of 1877 and 1880, or the Conjugal Rights Act of 1861. Her position under the present Act is that of a married woman under the old law as regarded her paraphernalia or her peculium. These were her own separate property, but she could not deal with them except with consent of her husband.1 So, too, in still earlier times it was held, in the case of aliment settled upon a wife exempted from her husband's jus mariti, that she might with, but could not without, his consent grant personal obligations to affect that aliment.

§ 101. It has been remarked that the English Married Women's Property Act has metamorphosed married women

as a spinster. into spinsters, with respect to their property.

Husband's consent to her acts.

This statutory transformation, however, is effected as regards Scotland only to a limited extent. The consent of the husband of a married woman in Scotland is still required to a deed electing between her legitim and a testamentary provision by her father. She cannot accept a bill of exchange or make a promissory note, or enter into a personal contract, except a contract of life insurance, and that only by special statute as already explained. She may, no doubt, with consent of her husband, contract so as to bind her separate estate, but so long as she is not judicially separated from him, or he is not civilly dead,

1 Supra, § 13.

2 Per Lopes, J., in Thompson v. Krise, 1883, 75 L. T. Journal 235.

3 Miller v. Galbraith's Trustees, 16 March, 1886, 13 R. 764.

4 M'Lean v. Angus Brothers, 2 Feb. 1887, 14 R. 448. As to the old law, see Earl of Strathmore v. Ewing, 1832, 6 W. and S. 56; reversing 4 S. 310. See Bills of Exchange Act, 1882, § 22.

his consent is necessary to validate the contract, and when so validated, she is not personally liable upon it. A married woman, where the jus mariti and right of administration are excluded, may enter into a trading partnership, and to the extent of her separate property, she is liable for its debts.1 It is doubtful whether in Scotland she could so contract with her husband, even although possessed of separate estate, over which his right of administration is excluded. Without her husband's consent, she cannot, says Inglis, L.P., enter upon any calling to produce a livelihood, although her earnings in any business she may carry on with his consent are protected. Formerly a partnership was dissolved by the marriage of a female partner, because her property passed, jure mariti, to her husband, and she could not bring him in.* Now that jus mariti does not operate, marriage will not affect the position of a female partner, save in so far as her husband's curatorial consent may he required.



The provisions of the Scotch statute are very much what the law of England was under the English Act of 1870. Speaking of that Act, Jessel, M.R., says it "gives no power to contract to a married woman which she did not possess before. It does make certain property, property to her separate use, to that extent carrying with it a power to contract in respect of that property which every married woman previously possessed in a Court of Equity."7

1 Biggart v. City of Glasgow Bank, 15 Jan. 1879, 6 R. 470; supra,

p. 21. Cf. Mrs. Matthewman's Case, L. R. 3 Eq. 781.

2 See Macara v. Wilson, 15 Feb. 1848, 10 D. at p. 713, supra, p. 56.

3 Supra, § 76, note. This statement of the law seems to be too broad.

4 Russell v. Russell, 14 Nov. 1874. 3 R. 93.

5 See Lindley, Partnership, p. 583 (5th ed. 1888).

See Biggart v. City of Glasgow Bank, supra, note 1; Farquharson v. Stott, 11 June, 1841, 3 D. 1006. The Partnership Act, 1890, does not in terms deal with the case.

7 Howard v. Bank of England, L.R. 19 Eq. 301.

Act does not affect

Power of settlement;

Contracts between



The Act of 1877.

English Act of 1882

§ 102. It is provided :—

1. That nothing in the Act shall exclude or abridge the power of settlement by ante-nuptial contract of marriage (sec. 1, subsec. 5), and

2. That it is not to affect (sec. 8):

(a) Any contracts made or to be made between married persons before or during marriage, or the law relating to such contracts;

(b) The law relating to donations between married persons or to a wife's non-liability to diligence against her person;

(c) Any of the rights of married persons under the Married Women's Property (Scotland) Act, 1877. This reservation is of great importance. It not only enables parties to contract in reference to conjugal property as before, but it limits the operation of the Act to the statutory and common law rights of the husband, and does not affect the rights he has acquired by convention.1


§ 103. In 1882, the scope of the English statutes was extended. The Acts of 1870 and 1874 were repealed, and the Married Women's Property Act, 1882, was substituted, and the law is now very much what was proposed by the Bills of 1857. The position of a married woman in England under the new Act is totally different from anything that existed before, at least in the case of a woman living with her husband. She can now contract, sue, and be sued, acquire, hold, and dispose of property of any kind, in the same way as if she

1 See Anstruther v. Adair, 2 M. and K., 513; Smith v. Smith, 11 Jan. 1866, 4 M. 279; Weir v. Parkhill, 1738, M. 5857; Dick v. Cassie, 1738, M. 5857.

2 45 and 46 Vict. c. 75.

were a feme sole; and her general legal position is made much the same as that of a man. As already mentioned, it applies to all married women in England and whenever married. The Act does not extend to Scotland, but probably a married woman whose domicile is in Scotland can avail herself of its benefits where her property is locally May affect situated in England, or when she is a shareholder in a company whose principal office is in England, although it may carry on business in Scotland.1

How great has been the change in public sentiment since 1856, is shown by the fact that, although the effect of this statute was nothing short of a social revolution, there was only one debate upon it in the House of Commons, and that occupied less than a couple of hours.

The Intestates' Estates Act, 1890,2 has improved the position of widows of intestates in England.


married women in

Scotland in

some cases.

$104. Excluding the case of marriages prior to 18th July, Present law. 1881, the law respecting the property of married persons, in the case where the husband at the time of the marriage had his domicile in Scotland, their interests in such property during marriage, and the interests of the survivor and of their children upon its dissolution stand thus:

(a.) The Wife's Estate.

1. The corpus of the wife's property, both heritable and Corpus of moveable, is her own.

2. The income of the wife's property, both heritable and moveable, is her own, and she can receipt for it.

The result is that while under the old law all this (except the wife's paraphernalia and peculium and the fee of 'Griffith, The Married Women's Property Acts by Bromfield, p. 147. 2 53 and 54 Vict. c. 29.

wife's moveable and heritable property her own.

Income her own.

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