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her heritage) became the property of the husband by mere marriage, now it remains, as it was before marriage, the property of the wife, so that if the husband were to appropriate one of her teaspoons he would be liable to be prosecuted for theft.1 The effect of the Married Women's Property Act
estate is now is to put all the wife's moveables on the same footing as
Exclusion of right of administration
paraphernalia and peculium. Shortly stated, the whole of the wife's moveable estate is now peculium.
The intention of the Act, it has been said, is to protect not to create separate estate. This, however, is hardly in accordance with its language. Instead of declaring that the wife's moveable property is to remain her own, the Act vests it in her as her separate estate.
The provision made in various Acts of Parliament 3 in reference to the transmission of shares and stock in joint stock companies and shares in ships on the marriage of a female proprietor is now nugatory. These remain the property of the wife, and are not affected by marriage.
3. The husband's right of administration is excluded from She can receipt for them and for the
as to earnings. his wife's earnings.
4. No alteration has been made as regards personal diliThe Act of 1881 expressly
gence against a married woman.
declares that it is not affected.
1 See H.M. Advocate v. Kilgour, 1851, 1 Stuart, 122. In that case the husband's jus mariti was excluded by convention; the result must be the same when it is excluded by statute. As to the civil law see D. 25. 2. 1; a special action was provided for the case. By the common law of England husband and wife being one person, cannot steal each other's goods; but this is altered by § 12 of the Married Women's Property Act, 1882; and see § 16 of that Act.
2 Milne v. Milne, 8 Dec. 1885, 13 R. 304.
38 Vict. c. 17, § 19 (The Companies Clauses Consolidation (Scotland) Act); 17 and 18 Vict. c. 104, §§ 59, 74 (The Merchant Shipping Act); 25 and 26 Vict. c. 89, Table A. 13 (The Companies Act).
If at the time of the marriage the husband had not his Domicile. domicile in Scotland, the Act of 1881 does not apply, and the law will stand in such a case as it was before that date.
(b.) The Husband's Liability for Wife's Debts.
§ 105. The liability of a husband, married since 2nd Limitation of August, 1877, for his wife's ante-nuptial debts is limited to the value of any property he shall have received through her. This applies to any married man in Scotland, irrespective of his domicile at the time of the marriage.
ceived by husband.
Seeing, however, that the effect of the Married Women's Property reProperty Act, 1881, is practically to deprive a husband of any right in or to his wife's property, his liability must, in most cases, be merely nominal, at least during the subsistence of the marriage. The only interest in heritable property which a husband now, by law, receives through his wife is his courtesy,
a liferent which is seldom met with in practice, and which does Courtesy. not become operative stante matrimonio. Upon the dissolution of the marriage the husband, if he be the survivor, is likewise entitled to jus relicti, but it may be a question Jus relicti. whether what he thus obtains is property received from, through, or in right of his wife. On the analogy of jus relictae he takes as a creditor, and not through or in right of his wife, but in his own right and because of her death. It may fairly be contended, however, that it is property received from his wife, although no doubt this is not the sense in which the words were used in the Act of 1877, when the jus mariti was entire.
If the wife's property is settled upon the husband Under under marriage contract, this seems fairly to fall within the scope of the Act; but as the husband's interest is
1 Ersk. 1. 6. 18; Weir v. Parkhill, 1738, M. 5857; Dick v. Cassie, 1738, M. 5857.
Wife's property is subject to her debts.
Wife must still have husband's consent to her acts.
generally postponed to that of the wife, a claim would only arise against him after her death. As a practical remedy, such a claim would be of little use, as a creditor would have a similar claim against the same property during the wife's lifetime.1 If the property settled under marriage contract be not that of the wife but has been contributed by a third person, the Act would seem not to apply, even although the husband takes an interest in that property.
(c.) The Wife's Obligations.
§ 106. While the wife's property is no longer liable for her husband's debts, it is still liable for her own, and will, in the event of her sequestration or cessio, pass, tantum et tale as it stood vested in her, to the trustee for her creditors in the same way as her husband's estate would do if he were bankrupt.
So long as the marriage subsists in its entirety a married woman must have the consent of her husband to her acts, in order that they may have validity as a legal transaction, except where the right of administration has been excluded Exceptions. (a) by convention or by destination; or (b) by statute, as regards insurances under the Act of 1880 and as regards her earnings and the investments thereof under the Acts of 1861 and 1877.3
In England when property is settled to the separate use of a married woman, she is released and freed from the fetters and disability of coverture, and invested with the rights and powers of a person who is sui juris; but although the
1 But see cases quoted, Fraser, Husband and Wife, i. 598, 599.
2 See form of decree in Scrogie v. Hunter, 22 Feb. 1872, 9 S.L.R.
3 Supra, §§ 62, 75, 83, 84, 100.
• Per Lord Westbury in Taylor v. Meads, 4 De G. J. and Sm, 597.
Married Women's Property (Scotland) Act declares that the moveable property of a married woman is to vest in her "as her separate estate," the expression is limited in its application to the exclusion of the jus mariti and leaves the husband's curatorial power unaffected. A wife must still sue with consent of her husband. If an action is brought against her, he must be made a party to it. If proceedings are taken to have her estates sequestrated under the bankruptcy statutes, or for a decree of cessio against her, notice must be given to the husband.
A wife who has obtained a protection order or judicial separation is capable of entering into obligations, is liable for wrongs and injuries, and is capable of suing and being sued as if she were unmarried. In other cases a wife is not treated as unmarried but as married. But in England, since the passing of the Act of 1882, every married woman has the same protection and the same powers as those which a married woman may obtain in Scotland when she is obliged to apply for a protection order or for judicial separation.1
Wife not bound
§ 107. The husband is bound to maintain his wife to maintain and children; but if the husband is indigent, and the wife has husband. means of her own, she is not bound to maintain him although she must contribute to the expenses of the household.2
The law of France is somewhat different from both. By the Code Civil, where the wife is separated either in body and goods or in goods only, she regains the uncontrolled government thereof. She may dispose of her moveables and alienate them. She cannot, however, alienate her immoveables without the consent of her husband, or without being thereto authorized by the Court on his refusal (Code Civil, § 1449). When again the parties have stipulated by their marriage contract that they will be separate in goods, the wife retains the entire management of her property, moveable and immoveable, and the free enjoyment of her revenues. This is the same in effect as the ordinary Scotch contract of marriage.
2 Fingzies v. Fingzies, 20 March, 1890, 28 S.L.R. 6. As to the case
(d.) Division of the Conjugal Property on the Dissolution
of the Marriage.
Division of § 108. On the dissolution of the marriage by the
estate same on death of either spouse, the rights of the survivor and of the either spouse. children in the moveable property of the deceasor are the
Result of recent legislation.
same. The date of the marriage, and the domicile of the husband at the time of the marriage, make no difference; but in order that the succession be regulated by the law of Scotland it is necessary that the husband, if he was the predeceasor, died domiciled in Scotland; that if the wife was the predeceasor, her husband was at the time of her death so domiciled; and that if she was the survivor, she was at the time of her own death domiciled in Scotland.
(a) If there be children by that or by any other marriage of the deceasor the division is tripartite :
One third belongs to husband or wife, as the case may be, as jus relicti or jus relictae.
One third to the children as legitim.
One third is dead's part.
(b) If there are no children, the division is bipartite :
Half is jus relicti or jus relictae.
Half is dead's part.
(c) On the death of the survivor of the spouses, survived by children of any marriage, his or her property is divided into two parts.
Half is dead's part.
Half is legitim.
While the division of the husband's moveables is the same as before, the result is very different since the prac
of children where the father is dead, see Fairgrieve v. Henderson, 30 Oct. 1885, 13 R. 98. The wife is made liable in England by the Married Women's Property Acts (33 and 34 Vict. c. 93, §§ 13, 14; 45 and 46 Vict. c. 75, §§ 20, 21).